Bradley v HammondCare
[2022] NSWPICMP 447
•9 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bradley v HammondCare [2022] NSWPICMP 447 |
| APPELLANT: | Sherry Bradley |
| RESPONDENT: | HammondCare |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Doug Andrews |
| MEDICAL ASSESSOR: | Brian Parsonage |
| DATE OF DECISION: | 9 November 2022 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal by worker from 9% whole person impairment; finding for psychiatric/psychological injury; whether Medical Assessor (MA) erred in not allowing a treatment uplift; whether MA erred in finding class 2 value for the category of concentration, persistence and pace; Held – worker’s submission that MA required to comment extensively on treatment misguided; chapter 11.8 and chapter 1.32 of the the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 considered; error established that MA referred to a class 3 value for concentration persistence and pace in his reasons within the Permanent Impairment Rating Scale chart, but in context clearly a typographical error and no demonstrable error established; observations made about submissions that had no evidentiary support and lack of care in preparation of appellant’s submissions. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 July 2022 Sherry Bradley, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by MA Dr Michael Hong, who issued a Medical Assessment Certificate (MAC) on 20 June 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 March 2022 a delegate of the President referred this matter for a WPI caused by psychiatric and psychological disorders alleged to have occurred on a deemed date of 14 September 2020.
The appellant had been employed in the aged care sector for more than 20 years and had been working for HammondCare (the respondent) since 2009. From 2020 she developed a psychiatric condition because of the attitude of new managers who had different methods of conducting the business. She felt dismissed, excluded and humiliated by being unsupported.
The MA assessed 9% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant indicated by ticking the various “yes” boxes in the application form that:
· she sought a re-examination by a medical assessor who is a member of the Appeal Panel;
· she sought the opportunity to present oral submissions to the Appeal Panel, and
· she relied on additional information that was not available before the medical assessment.
We assume that the above “yes” boxes were ticked inadvertently. No submissions were made as to why the appellant requested the opportunity to present oral submissions to us and neither was there in fact any additional relevant information relied on.
With regard to the re-examination, for excess caution we find that no such re-examination was required, as no demonstrable error had been established.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
These have been considered by the Appeal Panel.
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.
The grounds alleged by the appellant were firstly that the MA had applied incorrect criteria in his finding that no uplift for the effects of treatment was warranted.
Secondly, the appellant submitted that the MA had fallen into error when he found that the value for concentration, persistent and pace in the psychiatric impairment rating scale (PIRS) was 2 when it in fact should have been a class 4.
It was also submitted that the MA had given inconsistent assessments in any event.
The MAC
In reporting on the appellant’s social activities and activities of daily living, the MA said:[1]
“Ms Bradley is 57, living with her husband who works in the coal mines. They have five adult children who do not live with them.
She has a healthy diet and eats a lot of vegetables. She does craft and diamond art, recently she started a project where she follows a diamond art pattern made from a photo of her husband and her. This involves finding the correct beads identified through numbers and letters, and she would do 1 hour then rest, and do another hour. She does 2 hours a day. She previously read magazines on healthy and eating, wellbeing and said she never read books. She is not reading currently as she is focussing on her diamond art. She spends time with her husband, they talk and watch movies and spend time in the backyard. She does some housework and her husband does some laundry and mows the lawn. She makes different dishes, e.g. pastry and butter chicken from online recipe and the cooking generally turns out fine. There is no problem driving her car. Her daughter and grandchildren visit her. She talks to her friends. Normally she has regular contact with 8 couples. They meet up every 2-3 weeks at home to talk, over tea and biscuits, although not everyone would come. She became withdrawn from people. She has a good relationship with her mother and siblings and they visit each other regularly. She had divorced around 20 years ago and been with her current husband about 22 years, and married for ten. She said they have a beautiful marriage and he is very supportive.”
[1] Appeal papers pages 23-24.
The assessment was via video link and the MA made the following observations:[2]
“Ms Bradley was bespectacled. She engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. There was no apparent distress during the assessment. She was not restricted in her affect range and reactivity. She smiled and laughed briefly. She spoke spontaneously. She was keen to speak and gave long answers. She remained attentive during the assessment and was not distracted. There were no difficulties in alternating between topics and staying within topics, and she maintained a normal processing speed. At the end of the assessment, I asked Ms Bradley for additional information that she thought may be relevant and she discussed her career being ripped away from her, she has no confidence and would not wish this on anyone.”
[2] Appeal papers page 24.
In his summary the MA said:[3]
“[Ms Bradley] ceased work as her anxieties were overwhelming, and she has had regular treatment with her psychologist and taken the same antidepressant medication, however, she has not gained significant improvement or remission over time. There is a consensus she developed an Adjustment disorder.”
[3] Appeal papers pages 24-25.
In considering the opinions of other experts, the MA said relevantly:[4]
“Dr Martin Allan, IME psychiatrist reported on 20 August 2021 noted similar history at work. There was no prior psychological problem. She does not report any improvement with treatment so far and he recorded that she was on the same treatment as she is currently having. … Comment: In terms of concentration, persistence and pace, Dr Martin rated 3 and noted Ms Bradley does not read to any extent. Her brain is like a sponge and does not attend to complex tasks. I rated 2 on the grounds that she can focus on following pattern when doing a diamond art for about an hour, and has been doing this every day. She can also follow recipe and experiment with different cooking and pastries, and this is more consistent with 2 according to the Guides.”
[4] Appeal papers pages 26.
When considering a report dated 31 August 2020 by Dr Yajuvendra Bisht, the MA noted a comment that Ms Bradley needed regular treatment. In his report of 3 December 2021 Dr Bisht alleged that she had not had adequate treatment and accordingly maximum medical improvement (MMI) had not been reached. The MA commented:[5]
“Comment: In my assessment, I noted that she essentially maintained the same treatment since she stopped working. There is no plan to make further adjustment. As her treatment and her psychological symptoms have stabilised, my view is that MMI has been reached.”
[5] Appeal papers page 26.
In the PIRS with regard to concentration, persistence and pace the MA assessed a class 2 evaluation,[6] but in his reasons he said:[7]
“Ms Bradley reported having reduced concentration. She has not undertaken study since the subject injury. She can focus on following recipe and crafting patterns, around 1 hour. Her mental state examination is consistent with 3.”
[6] Appeal papers page 29.
[7] Appeal papers pages 29-30.
At the bottom of the PIRS chart the MA noted there was no pre-existing injury and he also awarded a 0 WPI in respect of treatment effects. He said:[8]
“Treatment effects. No substantial or total elimination of impairment with treatment, and therefore no treatment uplift.”
SUBMISSIONS
The appellant
Treatment effect
[8] Appeal papers page 30.
The appellant submitted that the MA had applied incorrect criteria in relation to his finding about treatment effects. It was submitted that the MA did not “specify the basis on which he drew his conclusion” when he gave no uplift for treatment effects.
It was alleged that the MA did not “describe the likelihood” that the symptoms would be substantially or totally eliminated with treatment and did not explain or comment on the degree of the effectiveness of the treatment. Chapter 11.8 of the Guides was referred to.
We were referred to the medico-legal expert retained by the applicant. The appellant identified him as “Dr Martin”, but he was in fact Dr Martin Allan, consulting psychiatrist. However, the appellant continued to refer to him as “Dr Martin” throughout her submissions.
The MA’s comment, it was alleged, represented the application of incorrect criteria “as the Treatment effect is meant to measure the degree that positive improvement has masked any underlying condition.” We assume the appellant was referring to chapter 11.8 of the Guides in support of that assertion.
It was alleged that the MA had not determined whether any other treatment might be given that was more or less effective, and he did not determine whether the appellant had reached maximum medical improvement.
It was further submitted that the MA did not indicate what would happen if the current treatment were withdrawn or changed. The appellant referred to chapter 1.32 of the Guides.
The appellant then stated that no comment had been made (presumably by the MA) on the advisability of further treatment. The appellant said:
“… particularly in circumstances where the head there is said to have been no substantial proven…”
We were unable to understand that submission. Doing the best we can, we assume that the appellant was submitting that the MA had an obligation to specifically consider further treatment.
The appellant submitted that it was “open” for an allocation of 1% to the effects of treatment and the MA, it was argued, had not given a satisfactory explanation as to why he did not.
It was further alleged that the MA failed to provide any reasons concerning the apparent effectiveness of treatment.
Discussion
This ground may be dealt with shortly.
Chapter 11.8 provides[9]:
“Effects of treatment
11.8 Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”
[9] Guides page 55.
We would observe that there is no requirement as alleged by the appellant that the psychiatrist was required to comment extensively on treatment. The guideline states that the MA “may” make a comment. Moreover, the MA has given clear and concise reasons as to why no uplift was appropriate in any event. Indeed he used the language of chapter 1.32 of the Guides, which provides:
“1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
The MA said there was “no substantial or total elimination of impairment,” as we indicated above. It was not suggested by any of the specialists who have assessed the appellant that there had been any relevant treatment effect. Unsurprisingly, the MA was of the same view.
With respect, it did not appear that the appellant was as familiar with the relevant guidelines as perhaps she might have been. We are surprised that this ground was advanced when there was no relevant supporting evidence.
This ground is dismissed.
Concentration persistence and pace
The appellant referred to the 20 August 2021 report of Dr “Martin” noting that he had said that the appellant’s concentration had become impaired, that she lacked focus, and avoided complex tasks. It was alleged that the MA was under an obligation to refer to the appellant’s “degree of difficulty” when she was performing the activities described as “diamond art”.
It was alleged by the appellant that diamond art in any event was not intellectually demanding by the appellant. It was submitted that “it may be that a non-impaired individual can complete the Diamond art tasks in five – 10 minutes before taking a break as described.” We assume that the “break” referred to is the break described by the MA as occurring after one hour’s work on the diamond art.
Again there is no evidentiary basis for the appellant’s statement “it may be that”.
We note the submission at paragraph 22:
“[The appellant] does not and presumably cannot complete a course and study to any extent. Such”.
We were unable to comprehend the appellant’s meaning. The appellant had been addressing the fact that Ms Bradley “eschews reading to any extent,” which, it was argued, was consistent with a class 3 finding. However, the appellant appears to have overlooked the MA’s comment, reproduced above, that Ms Bradley had never read books, and that she was not currently reading as she was focussing on her diamond art.
The appellant relied on further comments by Dr “Martin” that the appellant needed a degree of assistance from her husband to function adequately, and we were referred to statements that confirmed that she could follow a recipe and experiment with cooking methods but that such activities were very different to following a complex pattern of knitting, making clothes or doing tapestry.
It was alleged that the MA had made a “Freudian slip” in referring to a category 3 in the reasons he gave in the PIRS for concentration, persistence, and pace when he had given a 2 category underneath the appropriate column.
It was said that “it remains unclear to the lake reader” which class was applicable. We are unclear as to what a “lake reader” is.
Discussion
It can be seen in his discussion of the opinions of other experts that the MA specifically disagreed with Dr Allan’s rating of class 3. He stated unequivocally that his assessment was class 2. He repeated that assessment, as we have noted, in the PIRS chart itself and he has clearly stated that there has been no substantial or total elimination of impairment with treatment and therefore no treatment uplift.
We therefore are satisfied that when he said the mental state examination was consistent with “3” in his reasons within the psychiatric impairment rating scale itself that he had made a typographical error. There was no basis for the suggestion that there had been a “Freudian slip.”
The appellant submitted that the MA was under an obligation to refer to the applicant’s “degree of difficulty” when she was doing her “diamond art.” This submission may also be dealt with shortly.
Firstly, the MA did not record any complaint of difficulty by Ms Bradley in performing this activity. It would seem that we were being asked to draw an inference from her reference to Dr Allan’s report.
Secondly, however, Dr Allan did not mention Ms Bradley’s “diamond art” activity, so that we were in effect being asked to speculate that Dr Allan’s general comments in 2021 must have meant that an activity he did not refer to was conducted with a “degree of difficulty.”
Thirdly, in her statement of 19 April 2021 Ms Bradley simply said:[10]
“…I have also started doing diamond art which takes my mind off a lot of things. ….”
[10] Appeal papers page 43 at [37].
Fourthly, the appellant was also seen by Dr Greg Cameron for injury management purposes for the insurer. He reported on 24 May 2021[11] and he noted that there were no problems in respect of the appellant’s activities of daily living, that she helped her children with the grandchildren “and had taken up Diamond art”.[12]
[11] Appeal papers page 313.
[12] At [315].
Fifthly, Mr Thomas O’Neill, a consultant psychologist retained by the insurer, noted in his report of 15 July 2021:[13]
“Ms Bradley has recently taken up diamond art, very much enjoys this, and can sit for hours engaging in this activity. It provides her with relief from her symptoms. …”
[13] Appeal papers page 321.
With respect, it also did not appear that the appellant was as familiar with the evidence as she might have been. There was no suggestion in the evidence that Ms Bradley had any degree of difficulty with her diamond art. Further, it appears that not as much care had been taken in the preparation of her submissions as would ordinarily be expected, which we infer from the incidental matters we have referred to in these reasons.
The MA has given a thorough and carefully reasoned MAC. His function was to form and give an opinion on the medical question referred to him by applying his own medical experience and his own medical expertise. He was also required to show his path of reasoning in his explanation.[14] It is well established that an MA had a wide discretion within the descriptors given for each class in chapter 11 of the Guides.[15] The class 2 assessment was within the range, and was clearly and carefully explained.
[14] Sydney Local Health District v Chan [2015] NSW SC 1968 at [13] citing Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
[15] Ferguson v State of New South Wales [2017] NSWSC 887
For these reasons, the Appeal Panel has determined that the MAC issued on 20 June 2022 should be confirmed.
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