BLS v BizPay Group Ltd
[2024] NSWPICMP 791
•25 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BLS v BizPay Group Ltd [2024] NSWPICMP 791 |
| APPELLANT: | BLS |
| RESPONDENT: | BizPay Group Limited |
| APPEAL PANEL | |
| SENIOR MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 25 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal in relation to the Medical Assessor’s (MA’s) assessments relating to the psychiatric impairment rating scale (PIRS) categories; Held – Medical Appeal Panel confirmed the Medical Assessment Certificate and could find no error in the assessment of the MA; appeal regarded the application of section 323 was also rejected. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 June 2024 [BLS] (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 May 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL
[BLS] commenced proceedings in the Personal Injury Commission (Commission) seeking lump sum compensation arising from a psychological injury due to the nature and conditions of employment.
It should be observed that there was no issue so far as primary liability was concerned and as a result the matter was referred to Medical Assessor Walsh. BizPay Group Limited (the respondent) had raised concerns regarding maximum medical improvement (MMI) and also level of whole person impairment (WPI) assessment.
Following the issuing of the MAC dated 28 May 2024, the appellant seeks to appeal the MAC on three grounds:
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there had been adequate findings recorded on the examination in the MAC.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
There was no application to give fresh evidence.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, below:
“-He said he noticed short-term memory loss initially and forgot small things. He thought the deterioration in his concentration progressively deteriorated (page 2).
-He thought the deterioration in his concentration had not improved over the last year. He said he recalled two incidences due to inattention where he had to emergency brake whilst driving, the last time was 4 months (page 2).
-Concentration – He said he cannot keep his focus and concentration when using online media or reading longer emails. He said he must take a break from longer emails to finish them. He said his wife assists him with bills, but they manage their finances jointly. He said he had a cognitive test for TMS, he had a lower word fluency than expected (page 3).
-Details of any previous or subsequent accidents, injuries, or conditions: In his twenties, he was prescribed antidepressants and saw psychologists. He was on sertraline with good response and changed to venlafaxine (Effexor) but experienced severe adverse side effects. When asked about that, the claimant said he had been in the hospital ICU for 10 days with myocarditis and subsequently developed a low mood. He stated that he continued to function and achieved well at university during that time. He said he was on sertraline for between 4 and 6 months which was efficacious initially, but the mood symptoms did not improve further. This was the reason for switching to venlafaxine, but it caused problems with his inner ear function. He said he had a full recovery after a year but was uncertain whether this was the natural course or due to medications. There was a second episode in 2018, before working for BizPay, when he experienced anxiety. His GP clinical records on 27/02/2018 noted ‘He was experiencing a lot of stress at work and had some panic attacks. The work issues calmed down and he was eating better and feeling better’. When asked about that, the claimant said he had workplace anxiety but could not recall having panic attacks. He said he saw Ms Robinson, a psychologist, for around 3 months. The clinical records from Couples Counselling dated 30/03/2022 noted that he had legal threats and that he had borrowed money from a criminal element who was threatening the family. When asked about that, he said that BizPay lent money to a company involved in organised crime. When they tried to recover the funds, there was a veiled threat from that company not to attempt to do so. The claimant said this did not help his mental health. He said that apart from those two episodes there were no other periods in his life where he experienced anxiety or depressive symptoms. The claimant denied any prior engagement with mental health services or admissions to mental health units. The claimant also denied ever having any history of previous self-harming behaviours, suicide attempts or harm towards others. When asked, he stated that he has never experienced any bipolar symptoms (pages 4 and 5).
-Self-care and personal hygiene:
Bathing: He said he is independent in personal hygiene, but once or twice a week his wife reminds him to shower.
Cooking: The claimant said he does not cook at all, having previously left the stove and oven on. He said that pre-injury he used to cook a third of the meals.
Household chores: He reported that he helps with the dishwasher and waters the garden. He said he lacked motivation and did not think about household tasks. He said his wife did most of these tasks preinjury, but he did much more of them then. Shopping: He stated that he goes twice a week for groceries. He can do this alone but has to take a list.
He said before the workplace injury, he was completely independent in all these area (page 6)
-Social and recreational activities:
Hobbies: He said he is on his computer most of the day.
Exercise: He stated that he goes to the gym 4 times a week and stays there for around 3 hours. He goes running for around an hour 1 to 2 days a week. He said he does these activities alone.
Other activities: The claimant said he plays chess online and enjoys it. However, he only manages 5-minute games. He said he has played it since he was 9 years of age and over the years he used to play for hours.
Frequency of socialising: He said he last went out with a friend 4 months ago. Every few weeks, he has meals with his family at home, rather than in restaurants or cafes He reported that he can engage with his family if he is feeling well, otherwise, he will isolate himself. Occasionally, he can go to cafes alone to meet potential clients and discuss projects (page 6).
-Social functioning: Relationship with his wife: He has been married for nine years. He said the relationship is strained and they argue 3 to 4 times a week. He said it changed progressively over time since the workplace injury. He said there is no domestic violence there have not been any periods of separation.
Relationship with his daughter: He stated that the relationship with his daughter was generally good. He thought she might be quieter as a consequence of his mental health impacting her.
Relationship with siblings: The claimant said he has one younger brother who lives abroad. He said they get on reasonably well. Relationship with parents: He reported that his relationship with his parents is generally good, and they help look after his daughter.
Relationship with friends: He stated that he used to have 8 to 10 friends but now only has one friend. In the last year, he has seen this friend only once and that was 4 months ago. He said he has not kept in touch with friends out of embarrassment and does not find being in company enjoyable (page 6).
-Concentration persistence and pace:
He said he cannot keep his focus and concentration when using online media or reading longer emails. He said he must take a break from longer emails to finish them. He said his wife assists him with bills, but they manage their finances jointly. He said he had a cognitive test for TMS, he had a lower word fluency than expected (page 6).
-Summary of injuries and diagnoses: Major Depressive Disorder with anxiety - as there have been depressive symptoms which include low mood, anhedonia, poor appetite, poor sleep, and poor concentration (page 7).
-Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition, or abnormality? Yes. I have ascertained that there was a history of depression and anxiety on two occasions. These were related to significant life events but were present for some time. This conclusion was reached by his account and the clinical documents provided (page 8).”
The Medical Assessor also summarised the evidence that had been relied upon by the parties as follows:
“15/03/2023 - Psychological Functional Assessment Report, Mr Calvin Zhang, Registered Psychologist Injury history: The history was as presented elsewhere. Symptoms: Sleep and appetite had improved. His libido was decreased. He had become closer to his wife. On examination, he had a flat affect initially, but became more animated, joking and smiling. Treatment: At the time of this assessment, he was seeing Jenny Brown and had hypobaric oxygen and acupuncture to relax. Employment: He returned to work as a consultant in December 2022 where he helped an individual with their start-up business. He did two days' worth of work over a week because it exacerbated the psychological symptoms (anxiety, concentration difficulties, energy levels). It was opined that the claimant could return to work for six hours a day, three days per week. This could increase to full-time in three months. Impairment: His wife took over household chores. He was grocery shopping twice a week. He was spending time with his immediate family by going on holidays together and attending social outings (going to the park, cinemas, and art exhibitions). He was regularly exercising at the gym. He was going out once a week with friends. He felt that his confidence in social interactions was impacted, and he chatted less with people not known to him.
06/11/2003 to 23/05/2023 - GP Clinical notes, Randwick Medical Centre Injury history: 27/02/2018 – He was experiencing a lot of stress at work and had some panic attacks. The work issues calmed down and he was eating better and feeling better. He wanted to see a psychologist. 23/07/2021 – He was seeing a therapist, Christine Kipps, for stress and anxiety. 11/08/2022 – He wanted to take another week of stress leave. His libido was very low. He was using low-dose naltrexone to block endorphins. 08/12/2022 – He had not been able to work and was out of the business having taken medical leave in August. He had a lot of anxiety and depression and had legal issues which were not further described. 05/01/2023 – His GP noted that the claimant had not consulted with them about being off work from August until December 2022 which was problematic regarding the insurance. 20/01/2023 – He was seeing Jenny Brown every 2 weeks for therapy, and it was reported that he found this helpful. He was expected to make a full recovery in 3 to 6 months. He did a small amount of private consulting but found this difficult. 20/03/2023 – This was a case conference. The psychologist thought the claimant should return to work part-time on a trial basis. 06/04/2023 - His psychologist wanted the claimant to see a psychiatrist. He experienced memory issues reportedly due to an adjustment disorder.
07/08/2023 - IME Report, Dr Richa Rastogi, Psychiatrist
Injury history: He was employed with Biz Pay from November 2019 as their CEO, an after-pay finance service. There were four founders. The business grew and there were eight executives with their own teams that he was managing. The claimant experienced bullying and harassment as the company suffered financial losses due to volatility in the market in March 2022. The investors appointed two new directors who attempted to suspend him and remove his control from the company. An agreement was eventually signed in which the company was to comanaged by him and two directors. The claimant was alienated and blamed for shortcomings in the company with threats and intimidation toward him. He was marginalised and restricted in his scope of employment. His anxiety heightened and he had insomnia and depressive symptoms resulting in his forced resignation on 20 July 2022. Soon after the resignation, he was subjected to digital surveillance from BizPay. He was threatened with misconduct. He reported the onset of anxiety in March 2022 with poor sleep, anxious ruminations, excessive fears and panic symptoms with physical discomfort. This progressed to a depressed mood, loss of appetite, anhedonia, amotivation, poor concentration and poor decision-making capacity. He became socially withdrawn and isolated. In July 2022 he had intrusive thoughts of hopelessness and worthlessness. These depressive symptoms amplified over time, and he noted marked poor concentration with short-term memory impairment and distracted by intrusive depressive cognitions. He became very forgetful and was distracted and would zone out easily. He saw his GP in July 2022 and obtained a mental health care plan for depression and anxiety as he was not aware, he was eligible for workers compensation. He commenced seeing a psychologist regularly but reported severe cognitive deficits and STM loss and this resulted in seeing a psychiatrist Dr Errol Jacobson in March 2023. There is a known history of depression in his twenties, and he was trailed on antidepressants and saw psychologists from time to time. He was on Sertraline with good response and changed to Effexor but had severe adverse side effects. He made a full recovery from that episode and functioned well. Symptoms: [BLS] felt undervalued and undermined. He decompensated further with a loss of self esteem, identity, loss of confidence, and felt undermined and devalued. He had poor concentration, anhedonia, and persistent insomnia. He felt tired and lost motivation and drive. He was irritable and short-fused. He had anxiety symptoms of chest tightness, breathlessness, dizziness, excessive sweating, and rapid heart rate. He was anxious about his future and vocational opportunities. He became socially isolative. He felt betrayed and preoccupied with injustices. This resulted in hopelessness and worthlessness.
Diagnosis: Chronic Adjustment Disorder with Anxious Distress Treatment: At the time of this assessment, he was not prescribed psychotropic medications but was taking health supplements. Having Crohn's and a history of side effects from medication, he was reluctant to try any medication. He was seeking psychological counselling sessions and now sees his psychiatrist Dr Jacobson every two weeks. He is on health supplements.
Opinion: Transcranial Magnetic Stimulation Therapy (TMS) was recommended. Employment: He was deemed unfit to work in any capacity.
Impairment: Self-care and personal hygiene. Mild impairment as he was struggling with meals and showering and needed prompting.
Social and recreational activities. Moderate impairment as he was reclusive, isolated, preferred to be indoors and only connected with family, lost friendships and lacked motivation and drive.
Travel. Mild impairment as he drove locally and to familiar places, lost concentration and focus and struggled with directions.
Social functioning. Mild Impairment as there was a loss of friendships and was socially reclusive, there was a lack of intimacy and a strained relationship with his wife. Concentration, persistence and pace. Moderate impairment as he was distracted with poor ability to multitask, reduced pace, STM loss, poor retention and was overwhelmed.
Employability. Severe impairment as he had an erratic pace and reduced, had cognitive deficits and 37 11 anxiety and could not handle high pressures and stress. He was thought to be able to work 1-2 days a week in the foreseeable future.
PIRS classes were 2,3,2,2,3,4 thus the aggregate was 16 and 17% WPI with 0% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 17%. Maximum medical improvement was considered to have been reached. 29/01/2024 –
-IME Report, Dr Abdul Virk, Psychiatrist Injury history: A brief outline of the injury was noted. The claimant was previously certified as having up to fifteen hours of capacity per week, working five hours per day, one to three days per week. Dr Virk previously examined the claimant on 08 June 2023 and diagnosed a major depressive disorder with anxious distress. The claimant was considered capable of working 12 hours per week, doing suitable duties with an alternate employer.
Symptoms: [BLS] reported that his mood has worsened and said that he has been experiencing suicidal ideation without making plans or forming intent to act on these thoughts. He said that he has continued to experience sleep disturbances, including initial insomnia due to anxious ruminations about the workplace issues and prominent middle insomnia, with frequent early morning awakening. He stated that his appetite remains diminished. He said that he feels fatigued and has depleted energy levels. He described a loss of interest in his usual activities and hobbies. He stated that his confidence has dropped further since the property market incident and said this has exacerbated his feelings of worthlessness. The claimant reported a worsened mood with suicidal ideation that he did not plan to act on. He had initial insomnia due to anxious ruminations about the workplace injury and prominent middle insomnia, with frequent early morning awakening. His appetite was diminished. He felt fatigued. He described a loss of interest in his usual activities and hobbies. He lost confidence further after the property market incident which exacerbated his feelings of worthlessness.
Diagnosis: Major depressive disorder with anxious distress
Treatment: He was not taking any psychotropic medication. The claimant was seeing his psychiatrist Dr Erol Jacobson fortnightly for Cognitive Behavioural Therapy (CBT). He said Dr Jacobson recommended repetitive transcranial magnetic stimulation (rTMS) instead of medication. He was due to commence 35 treatments within four weeks of the 29/01/2024 assessment. He was seeing a psychologist, Kate McPhee, fortnightly.
Dr Jenny Brown was not SIRA approved and so had to change.It was noted that in 2018, Emma Robinson saw him for CBT to learn strategies to manage his anxiety.
Opinion: Employment with BizPay was opined to be the main contributing factor to the aggravation of his pre-existing major depressive disorder with anxious distress. Employment: The claimant had not done further paid work since December 2022. He attempted to set up other projects, engaged with vocational rehabilitation, and had regular contact with his return-to-work coordinator. Dr Virk opined that there was partial capacity for suitable duties with an alternate employer for 8 hours per week (4 hours per day, 2 days per week).
Impairment: Self-Care and Personal Hygiene. The claimant forgot to have his meals. Sometimes he relied on his wife to prepare meals or on takeaway food. He attended the gym two or three times per week and ran 3 times a week. He continued to shower and brush his teeth 38 12 irregularly. He struggled to complete household chores. Travel. The claimant continued to drive but was anxious driving some days. He restricted himself to local areas and did not go to unfamiliar areas without his wife being present with him.
Social and Recreational Activities. The claimant reported he was socially withdrawn. He no longer engaged in activities or hobbies but continued to play online chess. He occasionally went out with his wife and daughter but found it difficult to enjoy himself with other people.
Social Functioning The claimant reported a strained relationship with his wife because of a lack of motivation and a depressed mood. He had difficulty caring for his daughter but assisted with her homework.
Concentration. The claimant struggled to read as he lost focus after a short time. He could only watch movies or videos for a few minutes because of ruminations about work. He was more forgetful. Maximum medical improvement was not considered to have been reached and so a PIRS was not completed.”
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Submissions and consideration
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The PIRS was established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12 provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales [2017] NSWSC 887 Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. Campbell J, in dealing with whether there was error in the application of the categories and classes of the PIRS, identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the AMS unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
His Honour found that the Appeal Panel had fallen into jurisdictional error. He also said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.”
In Parker v Select Civil Pty Ltd[2018] NSWSC 140 (Parker) Harrison J at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense...”
The primary submission is in relation to the PIRS classification. The Appeal Panel will now look at each of these assessments in turn.
Self-care and hygiene
Table 11.1 of the Guidelines provides for the following classifications:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population.
Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.
Class 3 Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4 Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5 Totally impaired: Needs assistance with basic functions, such as feeding and toileting.”
The appellant submits that Class 3 is more appropriate than Class 2. The Medical Assessor, in assessing Class 2, relies on the fact that “once or twice a week his wife reminds him to shower”. Class 3 refers to needing regular support and needing prompting to shower daily (note the requirement is not that the prompting be daily, but that that prompting is required regularly to ensure that there is daily showering).
In reply the respondent submits that a Class 2 is an appropriate assessment. The Medical Assessor relied on the appellant’s history that he is independent in personal hygiene, but once or twice a week his wife reminds him to shower; he does not cook at all whereas previously he would cook a third of meals; he assists with household chores, which were performed mostly by his wife pre-injury; and that he is able to attend to shopping twice a week on his own.
It was further submitted that the appellant does not satisfy Class 3 as he does not need prompting to shower daily and wear clean clothes, that he frequently misses meals, or that a family member or Community Nurse visits (or should visit) two to three times per week to ensure minimum level of hygiene and nutrition
The respondent respectfully submits that the allocation of Class 2 was open to the Medical Assessor and observes that the assessment of Dr Rastogi, on the appellant’s behalf, reporting on 7 August 2023, also allocated Class 2 for Self-Care and Personal Hygiene.
The Appeal Panel can find no error on the assessment of the Medical Assessor. The appellant certainly does have a mild impairment and is able to look after himself adequately. The Appeal Panel accepts that the appellant’s wife may need to prompt him to take a shower once or twice a week this indicative of a mild impairment as opposed to a moderate impairment as required in a Class 3. There is no basis to say that the assessment in “glaringly improbable”, the Appeal Panel can find no error in this assessment.
The Appeal Panel observes that this assessment is the same as Dr Rastogi, who relied upon a history that the appellant was struggling with meals and showering and needed prompting. This is a history consistent with a Class 2 mild impairment.
Social and recreational activities
Table 11.2 of the Guidelines provides for the following classifications:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4 Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend but will go to a different room or garden when others come to visit family or flat mate.
Class 5 Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”
The appellant submits that the category is a dyad. It only applies where the activity is characterised by the conjunction of being both social and recreational. The Medical Assessor noted that the worker had a “limited social life” with the last time he went out with a friend was four months ago. The appellant submitted that “Non-existent” social life would probably be a better description, as of the date of the examination.
The appellant submitted that Class 4 requires that a worker will never leave his/her place of residence and the facts of this matter do not rise to that extent. However, Class 2, as selected by the Medical Assessor applies where someone “occasionally” goes out is also inappropriate. A gap of four months since he last went out to socialise means that this is better described as “rarely” going out, which means Class 3 applies.
The respondent observes that Dr Rastogi classified the appellant Class 3 on the basis that the appellant is reclusive, isolated, prefers to be indoors and only connects with family. He has lost friendships and lacks motivation and drive.
Medical Assessor Walsh assessed Class 2 relying on the fact that the appellant is engaging in “some activity”. His limited social life was noted. He goes to the gym four times per week and stays for around three hours. He plays chess online (but can only manage five-minute games). The appellant stated that he last went out with a friend four months ago. Every few weeks he has meals with his family at home. He can engage with his family if he is feeling well otherwise, he isolates himself. He occasionally goes to cafes alone to meet potential clients and discuss projects.
The Appeal Panel refers to Basten AJ in Lancaster v Foxtel[1] regarding the submission that Social and Recreation Activities is dyadic, a proposition it does not accept. His Honour said;
“72. The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor ‘social and recreational activities’ if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.”
[1] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929.
After considering the submission and the findings made by the Medical Assessor the Appeal Panel can find no error in his classification. Whilst the appellant does not have an active full social life, he is able to play online games, which may be a solitary activity or playing against an opponent, is still engaging in a game. He is able to occasionally go to cafes to meet potential clients and discuss projects. Whilst his relationship with his family may not be as good as it was formally, he is able to have meals with his family at home.
The Appeal Panel can find no fault in the assessment of Class 2. The Appeal Panel finds that whist there is some evidence that could support a Class 3 impairment, likewise, as clearly articulated by the Medical Assessor there is also support for a Class 2 impairment.
Social functioning
Table 11.4 of the Guidelines provides for the following classifications:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4 Severe impairment: unable to form or sustain long term relationships. Preexisting relationships ended (e.g. lost partner, close friends). Unable to care for dependants (e.g. own children, elderly parent).
Class 5 Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.”
The appellant submits that because the worker has “lost friends”, it is a non-sequitur to say he therefore, in this aspect, as “mild impairment”. Class 4 is appropriate because “[p]re-existing relationships ended”.
The Medical Assessor has noted mild impairment and has allocated Class 2 rather than Class 1 on the basis that the appellant has a strained relationship with his wife at times and has lost friends.
The Appeal Panel has considered this ground of appeal and can find no error. There is no evidence of the appellant’s relationship being “severely” strained, to the extent of periods of separation or domestic violence which is the type of description that would be required to allocate Class 3. Indeed, the appellant states that he continues to have a generally good relationship with his daughter and with his parents, and that he gets on reasonably well with his siblings. The appellant admits that he has lost some friendships, however the Appeal Panel finds that this description is entirely consistent with Class 2.
The Appeal Panel can find no error in the Medical Assessors classification.
Concentration, Persistence and Pace
Table 11.5 of the Guidelines provides for the following classifications:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2 Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4 Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone or needs regular assistance from relatives or community services.
Class 5 Totally impaired: needs constant supervision and assistance within institutional setting.”
The Medical Assessor arrived at Class 3 which arises where there is difficulty in following complex instructions etc. The appellant submits that the Class 4 introduces a temporal aspect, namely that concentration only be brief, and there is the example given of only being able to read a few lines. It was submitted that the factual example in the table is similar to the facts of the present case in that the worker can only play chess for a few minutes (a game he has played since childhood). Indeed, the Medical Assessor appears to acknowledge that he has difficulty reading bills and that he is unable to cope with reading longer emails.
The Appeal Panel observes that the Medical Assessor allocates Class 3 rather than Class 2 on the basis that the appellant has restricted concentration but that he is able to work on projects at a reduced level.
The Appeal Panel agrees with the respondent that there is no evidence that the appellant satisfies the requirements for Class 4 in terms of only being able to read a few lines before losing concentration, having difficulty following simple instructions, having concentration deficits obvious even during brief conversation, and regularly needing assistance from relatives or community services by reason of Concentration, Persistence and Pace.
The Appeal Panel observes that the classification is the same as that assessed by Dr Rastogi, who assessed a moderate impairment as the appellant was distracted with poor ability to multitask, reduced pace, short term memory (STM) loss, poor retention and was overwhelmed.
The Appeal Panel finds that no ground of appeal has been made out. The Medical Assessor has clearly considered the appellants history and appropriately classified a Class 3 – Moderate impairment. There is no basis upon which the classification can be said to be “glaringly improbable.”
Section 323 deduction
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited[2010] NSWSC 78 (Cole). Schmidt J said:
“29 ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526Campbell J considered the legislative and authoritative history of s 323. He said at [42] and [43]:
“42. In the present context the critical question is the causation question which, expressed by adapting the terms of the statute is whether a portion of the 15 per cent whole person impairment Ms Ryder suffered as a result of her work injury was due to a pre-existing condition or abnormality i.e. degenerative disc disease. The argument advanced on behalf of Ms Ryder is effectively that the proportion must be capable of assessment in accordance with the WorkCover Guides for s 323(1) to be satisfied. With respect this overlooks the requirement that the section must be read as a whole and in its legislative context. ...
43. I acknowledge that the express words of s 323(1) require that some definite part, even if it is difficult or costly to assess in precise terms, of the impairment has been caused by, in this case, a pre-existing condition. But the interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.”
Consistent with this line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to “previous injury ... or ... pre-existing condition or abnormality”, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. That is in order to find that a pre-existing condition contributed to current impairment, a Medical Assessor must be satisfied that, but for the existence of the pre-existing condition, the current impairment would not be as great as it is.
The Medical Assessor in this case made the observation at 11a:
“In my opinion, the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities: (i) Nil.”
Following that observation, the Medical Assessor then observed that there were symptoms of depression and anxiety before the claimed injury. The Medical Assessor obtained a history of the appellant being prescribed anti-depressant medication and consulting psychologists in his twenties, experiencing anxiety and panic attacks in 2018 as a result of stress at work, requiring consultations with a psychologist for approximately three months, and stress involved as a result of legal threats and threats from a criminal element involved with organised crime in 2022 which the appellant conceded did not help his mental health. The Medical Assessor comments “This indicates a predisposition to depression and anxiety”.
The appellant complains that previous depression was not in existence at the time he was examined by the Medical Assessor. The appellant referred to Campbell J in Ryder at [54], where his Honour said:
“Section 323...requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed, it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been no subsequent impairment and therefore make a deduction under this section because of the existence such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”
The Appeal Panel observes that when the appellant commenced employment with the respondent in November 2019, there is no evidence that he was experiencing psychological symptoms of anxiety and depression, such as he did in 2018 and his twenties.
The Medical Assessor has relied upon his expert knowledge and skill to find that the appellants psychological history would contribute to the appellant’s current condition. The history is of significant psychological symptoms and treatment, including medication. The last treatment was in 2018, a short period before the appellant commenced employment with the respondent.
The Appeal Panel finds that it was open to the Medical Assessor, based upon his expert knowledge and skills, to find that the presented a pre-disposition to depression and anxiety.
The Appeal Panel, after considering the evidence, particularly the short temporal period between prior treatment and commencing employment with the respondent and the extent of treatment, is comfortable that it is likely that the impairment is greater than it otherwise would have been but for the previous psychological symptomatology. The Appeal Panel relies upon its expert knowledge and skill to make this finding.
The Appeal Panel agrees that it is difficult or too costly to assess in precise terms, what proportion of the impairment has been caused by the pre-existing condition. The Panel agrees that that a 10% deduction of the impairment should be made. This is not at odds with the available evidence.
An additional ground of Appeal was raised that there was a failure to provide adequate reasons by the Medical Assessor. The Appeal Panel observes that no substantive submissions have been given in relation to this issue relating to any particular finding. The Appeal Panel can clearly discern the Medical Assessors reasoning for reaching the conclusions that he did. The Appeal Panel rejects this complaint.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 May 2024 should be confirmed.
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