Cairns v Ausgrid

[2023] NSWPICMP 616

DETERMINATION OF APPEAL PANEL
CITATION:	Cairns v Ausgrid [2023] NSWPICMP 616
APPELLANT:	Adam Cairns
RESPONDENT:	Ausgrid
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	28 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Appellant alleged error in the assessment under two of the categories under the psychiatric impairment rating scale (PIRS) namely, social functioning and concentration, persistence and pace; the rating of class 2 in each class was open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 6 September 2023 Mr Adam Cairns (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 August 2023.

2. 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.

3. 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 grounds of appeal on which the appeal is made.

4. 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.

5. 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

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. The appellant did not request that he undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

1. 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

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.

2. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·    Date of injury: 2/08/2021 (deemed)

   ·    Body parts/systems referred: Psychiatric/Psychological disorder

   ·    Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	2/08/2021 (DEEMED)	11 page 55-60	14	7	0	7
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					+1% treatment uplift =8%

1. The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	Adam Cairns	Claim reference number (if known)	W2359/23
DOB	Xxxx	Age at time of injury	40-year-old
Date of Injury	2/08/2021 (DEEMED)	Occupation at time of injury	Ausgrid Pty Ltd
Date of Assessment	8/8/2023	Marital Status before injury	Never married

Psychiatric diagnoses

1. Adjustment disorder

2.

3.

4.

Psychiatric treatment

Psychologist Psychiatrist Medications No psychiatric admission

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

2

Mr Cairns has regular meals and does not usually eat breakfast. He mainly eats premade meals, and he cooks vegetables and makes steaks. When he cooks, he cooks enough for one week. He showers daily. He does not shower daily. He said his attendance to household chores is about the same or “a bit lazy”. This is almost 1.

Social and recreational activities

3

He used to have an active social life and went out with his friends regularly. He stopped attending social gatherings. He has no social recreational activities now. His recreational activities have not improved with eased COVID-19 restrictions.

Travel

2

He drives on his own locally. He described road rage and yelling at other drivers on the road.

Social functioning

2

He is anxious and socially avoidant, and ceased contact with all of his friends. The relationship with his general family has become distant.

Concentration, persistence and pace

2

Mr Cairns reported having reduced concentration. He can focus on intellectually demanding tasks for more than 30 minutes, such as writing music and focused well during the assessment today.

Employability

3

He performs full-time work with the same employer but cannot work with the same management line or perform his pre-injury duties. He can manage lower-stress employment with some difficulties.

Score

Median Class

2

2

2

2

3

3

=2

Aggregate Score Impairment

Total

%

+

+

+

+

+

14

7

Pre-existing injury

0

Treatment effects

There has been mild substantial elimination of impairment with treatment, and he has been able to return to work.

1

Final WPI

8

1. The worker appealed. The appeal concerned only the assessments made under two of the PIRS categories, namely social functioning and concentration persistence and pace. 

2. In summary the appellant submitted that the Medical Assessor erred in his assessment under two of the PIRS categories, namely social functioning and concentration, persistence and pace for failures that included the following:

   (a)    when he assessed a Class 2 for social functioning and a Class 3 should have been assessed, and

   (b)    when he assessed a Class 2 for concentration, persistence and pace and a Class 3 should have been assessed.

3. In summary, the respondent employer, Ausgrid (the respondent), submitted that the Medical Assessor did not err and nor did he make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

4. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor.  He is however not bound to follow the opinions of the IMEs whose reports are in evidence including the IME opinion upon which the worker relies to bring the claim for permanent impairment. Rather, the Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.

5. The Medical Assessor took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The Medical Assessor recorded as follows:

   “● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   Mr Cairns started working at Ausgrid in October 2019 and was a full-time customer service officer. He reduced to part-time work as a result of work stress and then stopped working in his substantive role in January 2022.

   He reported the work stress all related to a specific manager and he was bullied almost immediately on starting work. Psychologically, he noticed he declined significantly about six months into the job. He reported that because his manager had bullied him consistently he could not cope. He also said that there were isolated instances of bullying behaviour from a couple of other workers, but it was predominantly the manager’s behaviour that caused the psychiatric injury.

   Mr Cairns’ statement noted bullying started shortly after he commenced work. He was regularly made fun of and people mocked him and it was said loud enough so he could hear it. There were group emails sent about him that were intimidating. He started treatment with a GP in August 2021. He returned to work for the same company in a different role. He still has a large amount of anger and a very short fuse. He has problems with concentration.

   He reported he engaged with psychological treatment, and that he felt really good in late 2022, and then returned to work in Novemeber 2022. Since then there had been a small amount of psychological decline, and overall he is maintaining a stable trajectory. He said he still suffers low moods and feels very angry about the way he was treated. He has motivation problems and a lack of self-worth.

   He is in a different management line. He is now working in the business to a business team, doing work from home on a full-time basis. He reported that he does administration and data entry work, and would process service orders for retailers. Mr Cairns works between 7.30 and 4 p.m. and whenever the service orders come in, he will action it. He said that he is a good manager and has a good team, but felt he has had a few setbacks and feels anxious and is thinking whether he should continue doing office work or look for something that is not in an office.

   Mr Cairns said the work is busy and has a set timeframe, and he has spoken to his supervisor about his performance in the current role. He reported that the supervisor is accommodating and that he can slow down when he needs to, and there are no performance issues raised.

   ·    Present treatment:

   Mr Cairns is taking:

   ·    Sertraline 200 mg

   ·    Mirtazapine 15 mg

   ·    Seroquel has been ceased

   ·    Vitamins

   He has been consulting Aimee Norrish, psychologist since February 2022 and had a recent consult. He consulted Dr Justin Ho, psychiatric for 4 sessions.

   He has not had inpatient or group-based treatment.

   ·    Present symptoms:

   Mr Cairns reported having depressed variable moods.

   He has reduced enjoyment and motivation.

   He described having reduced concentration and memory overall.

   He described having low self-esteem.

   Suicidal ideation has improved. He self-harmed around 1 year ago.

   He reported having sleep problems sometimes, with middle insomnia and not often having nightmares now.

   He has had panic attack-like symptoms.

   He has been irritable without physical aggression.

   He avoids social situations due to his anxieties.

·    Details of any previous or subsequent accidents, injuries or condition:

Mr Cairns told me that he started a job a couple of years ago and there was a bit of hazing, and he did not suffer a psychological injury. He had no problem continuing at work and he did another job before he started at Ausgrid and aside from this, there was no other psychiatric problem.

There is no subsequent psychological injury identified.

Mr Cairns was born in Australia and grew up with his parents, being the second of five siblings. He does not have a family history of psychiatric illness. His parents separated when he was 2. His step-father joined the family, and he said that there was some verbal bullying and no domestic violence. He said because there were three boys at home, and boys will be boys, there were some disciplinary actions.

He reported that his alcohol intake fluctuated. When feeling stressed he had been drinking more. More recently he might drink once or twice a week, about six beers. He drinks at home he said to escape reality. He used cannabis and would use it weekly, but not in the last one year.

·    General health:

No relevant medical conditions.

·    Work history including previous work history if relevant:

He completed his Higher School Certificate and left home when he was 18 or 19 and then moved back home briefly, and then moved out again when 21.

He studied music business and technology, and later studied design at TAFE.

He had done waterproofing work and worked as a labourer, and in the last 10 years predominantly performed office-based work.

·    Social activities/ADL:

Mr Cairns is living on his own and has no dependents.

He avoids driving now, and generally only drives once a week to do the shopping. He said he has had several road rage incidents; people were not indicating or driving too slowly on the roads, and he will start yelling in his car. He does not challenge the other drivers or get into any kind of physical altercation.

Previously, Mr Cairns enjoyed playing guitar and writing songs. He used to play in a band, although he has never really done a gig. He still plays on his own occasionally but he has been writing songs a lot less now.

On the days when he is not working, he does not do a whole lot. He said he will walk across the road to Newcastle beach to take walks, but he has no social life. About a year ago a friend asked him to come out for a coffee, and since then he has not caught up with any friends or gone out.

Mr Cairns has never been married. He has had a few partners that lasted a few years. When he started at Ausgrid he had started dating a woman, however, they wanted different things and had different views about having children, so that relationship did not continue. He has not had another partner since.

His brother and mother live about 45 minutes away. He does not talk to them that much or see them that much, but he will text them. Another brother lives two hours away. He said they know what happened to him, but he does not really tell them everything that has happened.

Mr Cairns used to go to the gym regularly and he will still go occasionally, but he will go late at night to a 24/7 gym when there is nobody there.”

1. The Medical Assessor conducted a mental state examination and recorded his findings as follows:

   “Mr Cairns was assessed by video. He was at home during the assessment. I assessed him from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.

   Mr Cairns wore a beanie and a tee shirt, with holes in it. He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and had a bland expression all through the assessment. He spoke spontaneously. He was softly spoken without latency in his reply. He was not thought disordered. Mr Cairns provided a reasonable history and focused during the assessment. He did not perseverate.”

2. The Medical Assessor made a diagnosis as follows:

“● summary of injuries and diagnoses:

Mr Cairns had no prior psychiatric diagnosis and I noted he is a person with psychological vulnerability from early childhood adversity. He described starting work at Ausgrid and having been consistently bullied by his manager, which led to him stopping work and having psychiatric treatment. He improved significantly by late 2022, and had started work in a different section for Ausgrid. There had been a mild psychological decline, and overall he is managing and his condition has remained stabilised. He suffered from a major depressive disorder which has been sufficiently treated now.

In terms of a WPI assessment, Dr Teoh rated social functioning as a 3 and noted a strained relationship due to irritability and lack in communication, I noted his explanation can be consistent with 2 according to the Guides, which is my preferred rating.

In terms of concentration, persistence and pace, Dr Teoh also rated a 3 and again the explanation is also consistent with a 2. He also seemed to incorporate some functional impairment that was better placed in other categories.

In terms of employability, Dr Ahmed rated a 2, and noted that Mr Cairns returned to work full-time with the same employer. However, he is not performing his normal duties and now has some struggles overall without significant performance problems. His impairment between 2 and 3, but overall I think this is closer to 3 than 2, as he cannot perform his pre-injury duties.

·    consistency of presentation

I have found no inconsistency in Mr Cairns' presentation.”

1. The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessment in the categories of social functioning and concentration, persistence and pace are the subject of complaint on appeal.

2. The Medical Assessor had regard to the other evidence that was before him and made brief comments as follows:

   “Dr Ben Teoh, IME psychiatrist reported on 25 November 2022, noted Mr Cairns' work injury and then gradually returning to work in alternative duties. He said there was a history of domestic violence and verbal and emotional abuse by the stepfather.

   He drinks twice a week up to eight drinks, and there is no history of substance abuse. There was no evidence of short or long term memory impairment. He was working full-time. He diagnosed an adjustment disorder and provided a WPI that came to 15%.

   Dr Ho, Treating Psychiatrist, provided several reports. 30 July 2022, noted some improvement in anhedonia and enjoyed music and playing guitar more, but remained socially withdrawn. There were two undated DASS 21 scores provided in the same report with different scores. He had reduced alcohol to about eight to 10 standard drinks once a week. A diagnosis of major depressive disorder.

   Ms Norrish, Psychologist, provided several reports and noted depression and anxiety and having CBT treatment.

   Mr Cairns' psychologist provided several reports and entries and noted some improvement, particularly towards the end of 2022. 6 May 2022, noted mood has stabilised, going out for coffee, exercising and reading.

   GP records have been noted. 15 January 2022, very stressful job and poor concentration, smoking marijuana once a week and drinking alcohol two or three days a week, 10 standard drinks. Later entries noted some improvement in 2022.

   Certificates of capacity noted major depression, Generalized anxiety disorder, poor sleep, poor concentration, low mood, no pre-existing factors, thoughts of self-harm and called Lifeline. Certified having five hours three days a week in June 2022 by the GP, Dr Ian Jeffery.

   Dr Ho, 21 January 2023, noted improvement compared to October. Doing exercise at home on the beach doing squats, playing guitar and doing some song writing.

   Dr Tanveer Ahmed, IME psychiatrist provided a report dated 2 March 2023, noted enjoys music and makes music, but not currently engaged in doing this. He is working full-time from home, largely housebound, but occasionally goes to the beach. He has an adjustment disorder. He provided a WPI and said that the adjustment disorder is in partial remission and the WPI came to 7%.

   Labour Market Analysis has been noted with suitable jobs, such as administration, purchasing work, customer service.

   The Certificate of capacity dated 3 November 2022, noted some anxiety since he started back at work.”

1. The appellant complains that the Medical Assessor has erred in respect of his assessment of social functioning as Class 2 and concentration, persistence and pace as Class 2. The appellant says that for both categories a Class 3 should have been assessed.

2. The Panel cannot interfere with the ratings ascribed by the Medical Assessor absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be a demonstrable error or assessment on the basis of incorrect criteria.

3. In respect of Social Functioning, Table 11.4 of the Guides provides as follows:

   Table 11.4: Psychiatric impairment rating scale – social functioning

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. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

1. The Medical Assessor assessed Class 2 with the following reasoning:

   “He is anxious and socially avoidant, and ceased contact with all of his friends.

   The relationship with his general family has become distant.”

2. The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3.

3. The Medical Assessor clearly explained why his opinion differed from that of Dr Teoh, the IME qualified on behalf of the appellant who had assessed a Class 3 as follows:

   “In terms of a WPI assessment, Dr Teoh rated social functioning as a 3 and noted a strained relationship due to irritability and lack in communication, I noted his explanation can be consistent with 2 according to the Guides, which is my preferred rating.”

4. The assessment by the Medical Assessor accords clearly with Class 2. A mild impairment is the best fit and the Medical Assessor has applied his clinical judgment on the day of examination and rated Class 2 in accordance with the correct criteria for that Class. The appeal panel can discern no error in the Class 2 rating.

5. In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:

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 (eg 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.

1. The Medical Assessor assessed Class 2 or mild impairment with the following reasoning:

   “Mr Cairns reported having reduced concentration.

   He can focus on intellectually demanding tasks for more than 30 minutes, such as writing music and focused well during the assessment today.”

2. The appellant submitted that a moderate impairment or Class 3 should have been assessed. Dr Teoh had assessed the appellant at Class 3 and the Medical Assessor explained why his opinion differed as follows:

   “In terms of concentration, persistence and pace, Dr Teoh also rated a 3 and again the explanation is also consistent with a 2. He also seemed to incorporate some functional impairment that was better placed in other categories.”

3. Assessment cannot be based on self-report alone. The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise. The Medical Assessor has clearly done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 2 which is the best fit.

4. The Appeal Panel can discern no error in the rating of a mild impairment. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of Class 2 is clearly in accordance with the criteria in the Guidelines. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria, provided reasons for why he did so, specifically why he was of the view that the appellant’s rating was different to that of Dr Teoh. The Appeal Panel can discern no error.

5. For these reasons, the Appeal Panel has determined that the MAC issued on 15 August 2023 should be confirmed.