Buttenshaw v CASPA Services Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Buttenshaw v CASPA Services Ltd [2023] NSWPICMP 462
APPELLANT:	Chiana Buttenshaw
RESPONDENT:	CASPA Services Limited
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	21 September 2023
CATCHWORDS:	WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in his assessments in respect of a number of the psychiatric impairment rating scale (PIRS) categories; the Panel agreed and a re-examination took place; the Panel found similar assessments in some categories but not all; Held – Medical Assessment Certificate revoked. .

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 April 2023 Chiana Buttenshaw (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 March 2023.
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 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 the worker should undergo a further medical examination because the Medical Assessor erred in failing to provide adequate reasons for his assessment, and failing to provide sufficient details of the evidence before him to enable the parties to properly follow his path of reasoning.

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.

Further medical examination

Professor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on
6 September 2023 and reported to the Appeal Panel on 11 September 2023.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, it appeared to the Panel that the appellant was appealing the psychiatric impairment rating scale (PIRS) categories of Travel, Social Functioning, Concentration, Persistence and Pace, and Employability. Although the appellant mentioned Social and Recreational Activities, the content of that appeal relates solely to Social Functioning.
In reply, the respondent submits that the Medical Assessor has provided sufficient and justifiable reasons to support his conclusions having undertaken a thorough examination and review of the available evidence, and the MAC should be confirmed.

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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury on 26 September 2019.
The Medical Assessor set out the history he obtained as follows:
“She describes excessive workload and bullying leading up to and after the deemed injury date. She describes an insidious onset of psychological symptoms over this period including increased stress, anxiety, low mood, poor sleep, poor energy.”
The Medical Assessor then said:
“Present treatment: psychologist weekly, sertraline 150mg daily. Prn diazepam.
Present symptoms: ongoing low mood, sleep difficulties, feelings of worthlessness, irritability, social withdrawal, anxiety, avoidance.”
The Medical Assessor added:
“She has not worked for CASPA since August 2020. She worked for Nextt as a disability consultant in January 2021. This only lasted 6 weeks she said that she couldn’t cope. She then worked for about 5 months for Wesley as a foster care manager, last working in December 2021 She said that she found this too stressful. She said that she was taking the work home too much and struggled to deal with some of the workplace situations.”
In commenting on the impact of Ms Buttenshaw’s injury on her activities of daily living and social activities, the Medical Assessor said:
“Reduction in social activities. Able to travel independently by car and public transport. Maintains good relationships with family. She has driven to Rockhampton to visit her father. She is able to care for her children.”
Findings on examination were reported as follows:
“Appeared stated age. Flat affect. Nil abnormal psychomotor activity. Depressed and anxious mood. Oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. Nil formal thought disorder. Nil delusions or hallucinations. No thoughts of harm to others.”
He then summarised the injury as “Adjustment Disorder” noting that there were “no obvious inconsistencies” in her presentation.
The Medical Assessor assessed 8% WPI.
He then turned to consider the other medical reports and documents before him, summarising them and saying:
“Dr Chow 22/1/21 diagnosed adjustment disorder.
Dr Khan 30/4/22 diagnosed major depression with WPI 18%.
Dr McDonald 3/8/22 diagnosed adjustment disorder with WPI 7% I have agreed with Dr McDonald except for more impairment in self -care, agreeing with Dr Khan, and added for treatment effect agreeing with Dr Khan in this regard.”
As noted earlier, the Panel agreed that the Medical Assessor’s findings and reasons were inadequately described, such that a re-examination was required.
We do not propose to set out the Medical Assessor’s assessments in his PIRS Rating Form as they are very briefly and cursorily described.
It is thus appropriate at this stage to set out Professor Glozier’s findings and assessments on re-examination.
Professor Glozier said:
“1. The worker’s medical history, where it differs from previous records
This history elicited was similar to that recorded elsewhere although not covered in detail in the Certificate. Ms Buttenshaw confirmed that she had ceased work in CASPA in mid-2020. I note there were issues identified elsewhere about legal cases and her termination at that time which was apparently rescinded with legal help. She said today that because of the problems where she lived as CASPA had quite a large presence, she moved away from the Northern Rivers area to Coffs Harbour where she had few supports apart from her new partner Mack, who came from that area. She worked briefly as a disability consultant, but was apparently unable to sustain this employment, and then worked for many months for a foster care programme with Wesley Mission. She also became pregnant in the middle of 2021. She described what is now construed as ‘moral injury’ exposure in this most recent role where she felt that she was unable to advocate for clients, felt that her ‘hands were tied’ and that the staff were just ‘ticking boxes.’ She said this became an issue because she was a mandatory reporter and that other staff saw no wrong in doing this, which she saw as poor care of the children and facilities. As a result she said that her symptoms worsened, such that by the end of 2021 she ceased work. She was in her mid-third trimester and gave birth to her fifth child Mack in early 2022. She said in this role she was lucky because she was given the possibility to work from home or work flexibly over the COVID period, and described periods of time off with difficulty travelling and at times migraines with the anxiety.
2.   Additional history since the original Medical Assessment Certificate was performed
Since the assessment certificate was performed, she now lives with her partner of three years, Mack. He is a FIFO, working two weeks on/two weeks off currently, leaving her as the sole parent in charge of her five children for a fortnight at a time but with more support at other times.
There were some relationship difficulties due to a period of infidelity on his part last year but they have reconciled. Ms Buttenshaw reported that she remained somewhat isolated, having moved away from her family and friend support systems in the Northern Rivers and with her family living elsewhere. Her parents live in Rockhampton and her father is seriously unwell with melanoma. She became upset relating the MA’s description of the visit to Rockhampton when he was diagnosed, stating that she found this very difficult and was only able to do so because Mack was with her, and they would have to stop and she was distressed frequently on the trip. Her sister lives in Brisbane and she has a brother in Lismore. She has made few friends around Coffs Harbour, although said she has some minimal supports that might help, e.g. Cathy who will organise at times for the boys to go to football when she feels she is unable to drive them. She says she talks to her sister a lot, who is a huge support, and she sees her younger brother every couple of months.
She has a busy household with five children, ranging from three pre-teens (11-13), a five-year-old and 18-month-old Mac who is in daycare twice a week. The management of the house requires quite a significant routine and she describes how she will have to clean up and look after the kids in a somewhat controlled fashion, although there are some days when she is less able to function. She gets into bed between 11:45pm and 12:24am. (She monitors her sleep with an App), having spent a couple of hours reading her university work, the only time she gets uninterrupted and really enjoys this space. She says she has no time to concentrate during the day because she is ‘sweating on managing the kids.’ Although she may fall asleep relatively quickly, she frequently wakes between 2am and 2:30am, and is up for approximately up to 40 minutes, but generally goes back to sleep or dozes. Her son Mac wakes at 4am for ‘a dream feed’ and then she finally wakes at 7am. Her aim is to achieve 5-6 hours of sleep and she is working on this with her psychologist. She says at times she is frequently anxious and shaky in the morning and may even have a panic. In the morning the older children may help the younger children, with her cleaning up after them and making sure everything is done. The four at school get themselves to school and then she feeds Mack, and cleans/vacuums the house. This can be of variable quality depending on how upset or distressed she is during the day. She will do the shopping although because of her anxiety in crowded areas, likes to pick up the kids to go with her for supermarket shops. She does not use the small local bus service and has not flown for some years. When Mack senior is not around she takes the children to their football and dance activities but does not stay or interact with other parents, apart from one who she has identified as a support, and at times the children have to get themselves to these activities. When Mack is back home, they do little socialising and he focuses on jujitsu three times a week although they might spend time out at the weekend as a family, e.g. recently going to a quarry area in the Bush for cycling. She has restarted an associate’s degree in paralegal studies that she commenced some time ago. She has been doing this for many months although with all the demands. She is registered for one unit/semester, being able to only have time to focus and concentrate late at night when all the children are down. She enjoys this but also says that she is taking time and has disability provisions although appears to be going through the speed of the one-unit-per-semester pace. As well as her university work, she finds herself going off down ‘Google rabbit holes’ because she enjoys learning, watching SBS, learning about the world, human rights etc, and can spend some time on the computers and the internet learning about these, which in part form part of her degree but also through her own interests, although said that the time she has for this and to be able to focus on these is limited with all her demands.
She tries many things to maintain her own wellbeing. She uses the ‘Rise’ app to manage her sleep and when she peaks in her activities, using a circadian rhythm algorithm embedded in the app. She avoids ‘poor foods’, and eats healthily. She talks about ‘capacity building’ and other activities aimed at improving her mental state. If it is a good day she will walk around the block or may plan to go to the beach but does these only infrequently because of her anxieties and moods. She does not drink alcohol, smoke, vape, use medicinal or illicit cannabinoids and has not used MDMA, Ketamine, psilocybin or micro-dosing.
She has transferred to a GP in Coffs Harbour and continues to take the same medication of Sertraline 150mg and prn Diazepam. She only gets 10 tablets a month of Diazepam, and will occasionally run out before her time has finished when she just has to ‘manage her emotions.’ She takes an over-the-counter Restavit every night and uses Panadeine Forte for her migraines. Over the past few months she has found a new psychologist in Grafton who has been focusing on anxiety management and sleep hygiene and last fortnight started EMDR. They focused on a childhood traumatic memory (I noticed there were other significant early childhood and youth traumas, according to the notes, although no indication that she had any significant psychiatric sequelae to these) and said that this was in preparation of focusing on the more work-related events.
3.   Findings on clinical examination
Ms Buttenshaw was well-kempt, looked her stated age and showed no signs of ill health or neglect. She spent some time spontaneously covering problems that she had with issues in the previous certificate and other reports and how people had characterised her, particularly views around her travel and employability. She showed excellent focus/concentration throughout the over one-hour assessment, and ability for accurate recall and logical argument construction. She became quite tearful when recalling how her father’s illness has been progressing, the way she felt treated by the last MA, and a sense of unfair treatment in a similar pattern to the treatment she has reported from her workplaces since CASPA and the way that she sees people’s behaviour not aligning with values. She describes a dysphoric mood, being tearful and miserable quite a lot of the time, frustrated, waking anxious and having occasional irritable outbursts. She has a reduced stress tolerance, frequent long periods of arousal, emotion, frustration, the last being yesterday. At times she has the more characteristic shorter intense panic attacks with shortness of breath, hyperventilation, panic cognitions, etc the last being two weeks ago when driving along she could not identify a specific trigger. She does note some triggers, e.g. when her son suggested to her that she doesn’t work, despite the enormous amount that she has to do for them, and when she gets triggered, these can lead to prolonged headaches, anxiety and nausea. She is not anhedonic, describing in particular many cognitive tasks she enjoys when she has the time, as well as to some extent being with her children. She is however avoidant where she can be of areas that she will find stressful and arousing, in particular where she cannot control her environment. There is quite a strong theme of control throughout regarding how she manages her home and the five children. This appears to be anxiety-allaying. She has some mild onset insomnia but marked middle insomnia with a short sleep duration.
Summary
Ms Buttenshaw meets the diagnostic criteria for a Major Depressive Disorder with Anxious Distress. Some of this appears to be recently reconstrued in a trauma framework under moral injury, accounting for her more recent treatment. She appears to have been on the same psychiatric medication for a prolonged period of time now. She would also meet the criteria for Panic Disorder.
It appeared to the Panel that the appellant was appealing the categories of Travel, Social Functioning, Concentration, Persistence and Pace, and Employability. Although the applicant mentioned Social and Recreational Activities, the content of that appeal relates solely to Social Functioning.
The worker shows quite a significant ability to care for herself and her children of a range of ages and undertakes a number of self-care tasks, although at times will struggle with these and has intermittent success at doing them. This is consistent with a mild impairment.
In terms of travel, she can drive locally, both in the town that she has moved to of late, and into Coffs Harbour. She did not drive interstate on her own and prefers it if her elder children accompany her into supermarkets, indicative of a mild impairment.
With regards to social functioning, she has maintained a relationship for three years although there were some problems last year due to his behaviour and they have reconciled. She has good relationships in general with her children. There is some strain due to her irritability. She reported a close relationship with her sister whom she talks to frequently and is close to her parents emotionally, although live a long distance away. She has moved away from all of her friendship groups and made few acquaintances locally: a mild impairment.
She is undertaking one unit a semester of a degree course and has done so for some time with little time to focus on this. However she is able to concentrate for a couple of hours late at night and also described how she enjoyed other cognitively-demanding tasks regarding the world, human rights etc. There was no sign of any cognitive difficulties in the assessment today and she spontaneously interrogated and challenged details of other assessments without any reference to notes, although this was undoubtedly somewhat overlearned. This is a mild impairment.
Finally in terms of employability, she was able to work for a year following her time at CASPA, ceasing in the middle of her third trimester. She was unable to tell me today to what degree this was contributed by any perinatal depression or the anxiety she was experiencing at that time. She has a remarkable number of demands on her, and we have seen that within the COVID period and subsequently people have been able to obtain roles working from home or in sheltered places for some hours a week, and with the ability she mentioned regarding her IT use, could do so. This accords with the severe, rather than total, impairment rated by IME, Dr Khan, and the reasons given.
The only difference between these ratings and that supplied by Dr Khan is in the area of concentration, persistence and pace, where from the history and examination today, she is mildly impaired for the reasons given above.
This results in a 2, 3, 2, 2, 2, 4; which is a total of 15, median class 2; 8% whole person impairment. The MA added 1% for treatment effect which has not been appealed, equating to a total of 9%.”

For these reasons, the Appeal Panel has determined that the MAC issued on 29 March 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W6819/22
Applicant:	Chiana Buttenshaw
Respondent:	CASPA Services Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Gerald Chew and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1.Psychiatric disorder	17 December 2019	Chapter 11, page 54	Chapter 14, pg 361-365	9	0	9
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					9%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2023] NSWPICMP 462

21 September 2023