Campbell v State of NSW (St George Hospital)

DETERMINATION OF APPEAL PANEL
CITATION:	Campbell v State of NSW (St George Hospital) [2022] NSWPICMP 520
APPELLANT:	Sharon Campbell
RESPONDENT:	State of New South Wales (NSW Health Pathology)
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	19 December 2022
CATCHWORDS:	wORKERS cOMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in applying the wrong criteria in finding there was a class 2 in the category of concentration, persistence and pace (CPP) of the Psychiatric Impairment Rating Scale (PIRS) when there should have been a finding of a class 3 impairment; Panel found the evidence supported a class 2 rating; Held – no errors by the MA; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 October 2022 Sharon Campbell (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 (MA), who issued a Medical Assessment Certificate (MAC) on 19 September 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): deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
· the assessment was made on the basis of incorrect criteria,
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 WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (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 WorkCover Medical Assessment Guidelines 2006.
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 although none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in applying the wrong criteria in finding there was a class 2 in the category of concentration, persistence and pace (cpp) of the Psychiatric Impairment Rating Scale (PIRS) when there should have been a finding of a class 3 impairment.
In reply, the respondent submits that no errors were made.

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 MA for assessment of whole person impairment (WPI) in respect of a primary psychiatric/psychological injury resulting from a date of injury of 1 January 2014.
The MA obtained the following history:
“Ms Campbell had worked at St George Hospital in the SEALS Service from 1980. She stopped work in January 2017, and was medically retired by June 2018. She receives Disability support pension from Centrelink now.
In terms of work stress, Ms Campbell reported that she was bullied by her manager and subjected to micromanagement, and that everything she did was always wrong and she was criticised for everything. She was criticised in front of other workers. She described a very high workload. She said her manager did not do proper recruitment or called in workers when they were short staffed, and often she had to do three people’s work. She reported because she is the senior worker, all the pressure fell on her and she had to ensure that service operated properly. Some of the other workers were afraid to approach the manager and so they approached her. There were about seven or eight workers during each day shift.
She also said that the manager would not attend to the roster or the annual leave approval on time, causing further stress.
Similar pattern of behaviour persisted from 2014, and eventually she had to stop work as she could not cope.
Ms Campbell recalled she sought help from HR, the union and the higher manager, and they said that they understood the problem, but nothing was ever done to change it and her stress continued. She thought she started having treatment maybe in 2015 and took an antidepressant medication, but did not find it helpful. She then started consulting Leanne Davies, a psychologist, in relation to work stress.”
After documenting Ms Campbell’s current treatment, the MA then set out per present symptoms as follows:
“Ms Campbell reported since her experience at work, she suffers constant dread, and everything causes her anxiety. She often thinks something awful is going to happen to her and reported that she has no energy to do things. Her anxiety symptoms are triggered by the news, TV, smoke and situations with bushfire, and crowded places.
She was self-harming by biting herself and cutting herself at work, and has stopped this a few years ago.
She reported having depressed mood. She has reduced enjoyment and motivation.
She reported having subjectively major problems with her memory and concentration, compared to how she was before her work injury.
She reported having low energy levels.
She has fleeting suicidal thought. She cut and bit herself, and ceased self-harm behaviour a few years ago.
She gained weight with stress, from 65 to 110kg. She is trying to lose weight and is recently 100kg. She takes walks and parks her car further from the shops to increase her exercise.
She reported having sleep problems and nightmares related to danger and work stress. She has not had nightmares related to bushfires for a long time.
She feels anxious. She has been less social since her work injury.
Ms Campbell denied having irritability problems.”
After noting Ms Campbell’s general health and work history, the MA then set out details of the impact of her injury on her social activities and activities of daily living (ADL’s) as follows:
“Ms Campbell is 59 and lives on her own.
Physically, she is limited and reported she cannot run. She can walk probably one to one and a half kilometres. She does not know how much she can lift, and said she can lift 2 L milk cartons. She only drives locally and said with arthritis in her hand she cannot drive longer than 15 minutes and she is also anxious on the road.
She shops online and goes to the shops every couple of days, and goes to the post office, buys milk, and only buys light items as it is difficult for her to carry heavy items.
She has a cleaner and explained she has no energy to do household chores. She washes her own clothes and does the dishes, sometimes with the dish washer.
Her only family is her brother, sister in-law and their children.
She sometimes watches television all day, but does not watch the news as she is worried about seeing bad news.
She said without a support person, she would stay in the bed until midday and may not shower. She has NDIS support workers for 20 to 25 hours a week, 5 days a week. She stated they would help her make meals because she has no energy to make the meals, and help her when she goes out. She said she has healthy pre-made meals in freezer, but when she is anxious she would eat junk food, such as chips and chocolate. She said she tries to eat proper by herself, and tends to have two meals a day. She said that she does not shower without support. She also said that if there is no support person, she makes sure she showers every second day.
After Ms Campbell gets up, she drinks tea. If she does not have a support person that day, she said she would read. She said she reads, but only with limited success. She reads biographies and fiction, and said she can only focus for ten minutes, but she would read all day by coming back to the material again and again. She goes out to appointments.
I asked about knitting. She said she used to do cross stitching and make baby clothes, but after her work injury she could only make basic knitwear, and then she stopped because she lost interest and does not enjoy it anymore.
She does some painting and beadwork, sometimes for half an hour, sometimes she said does not get much done for couple of hours. She then said she cannot follow patterns.
Sometimes she spends a bit of time in the garden. She lives in a townhouse and has some pot plants. She said she does her own laundry.
In the last few years, she has taken two trips. In 2021, when she flew back to New South Wales to receive an award for her fire-fighting. She said that she was dropped off the airport, she flew by herself, and was picked up at the airport in Sydney. In June 2022, she flew to Perth with her brother and sister-in-law to visit a nephew, and was there for about two weeks.
She has two neighbours but she said she does not consider them to be friends, and said she has not made new friends since she moved to Victoria.
Ms Campbell goes to weekly art group which can be up to 20 people, and said that they have their own table. She would talk to some people and maybe meet people there, but does not consider them to be friends.
She enjoys going to Equine Pathways Australia, which is for disabled riders. She met some people and said she is hopeful she can form friendship there. She goes very four weeks since November 2021, and sometimes there can be 30 to 40 people that go to the rides. She had hand surgery in June 2022 so took time off, and recently returned to the Equine program again.”
Findings on mental state examination were reported as follows:
“Ms Campbell was assessed by video. She was at home and her NDSI support worker Gaynor Lawton was present during the assessment. I assessed her 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. The assessment took 60 minutes, and commenced 10 minutes late.
Ms Campbell had long hair and dark red colour nails. There was no psychomotor slowing or abnormal movements. She was anxious, and was mildly restricted in her affect range and reactivity. She smiled and laughed intermittently, and cried at times.
Ms Campbell provided a good history. She recalled detail well. She remained attentive during the assessment and was not distracted. There were no difficulties in alternating between topics and staying within topics. She maintained a normal pace and speed.
At the end of the assessment, I asked Ms Campbell for additional information that she thought may be relevant and she discussed her anxiety affects everything, she is jumpy and her memory is poor, she mixed up her medications, and needs to set reminders and write things down, she missed important family events due to being in hospital for alcohol management.”
The MA summarised the injuries and diagnoses as follows:
“Ms Campbell described having developed depression, anxiety and alcohol use disorder as a result of stress from her employment. Her condition had fluctuated initially, and alcohol use disorder has remitted with treatment, but her psychiatric injury with depression and anxiety have not resolved. I have diagnosed a persistent depressive disorder.
In addition, she experienced PTSD symptom which only occurred after her work injury had commenced, in the context of bushfire in Australia in relation to her earlier trauma in 1983. Her trauma symptoms have subsided and there is no active PTSD now, but there is psychiatric impairment related to the bushfire (e.g. avoiding fire station), which I have set aside from my assessment as they are causally unrelated to her work injury.
In my assessment, I noted she has extensive osteoarthritis. Her physical injuries are not assessable in the PIRS…
Dr Clark rated concentration, persistence and pace as a 3 and explained she cannot concentrate at length (Comment: the explanation is consistent with a rating of 2, 3, 4 or 5). Dr Prior rated 2, and took a history that she could concentrate on reading for two hours. In my assessment, she told me that she can only read 10 minutes. She reported she does not knit anymore, she has no interest and then told me she cannot follow patterns. In her statement, she noted she could read for 30 minutes. Based on her presentation on the day, her capacity to focus during the entire assessment and to respond to complex questions, my view is that her impairment is more consistent with 2.”
The MA assessed 9% WPI to which he added a further 1% for the effects of treatment, a total WPI of 10%.
He assessed a class 2 in respect of cpp.
He then turned to consider the other medical opinions and evidence and said:
“Ms Campbell's statement noted the issues at work and described being bullied. She described a 1983 injury where she suffered extensive burns from bushfire, and that her father passed away. She did not seek psychological assistance. Due to being bullied, she developed alcohol and psychological problem and took numerous medications. She discussed the impact on her functioning based on the PIRS category. Ms Campbell was an avid traveller, but now she avoids travelling. She said she can read for 30 minutes before she gets fidgety and loses concentration. She watches television such as movies, documentary and comedies.
Dr Thomas Oldtree Clark IME psychiatrist reported on 1 March 2021 diagnosed persistent depressive disorder and provided WPI with a rating of 22%, and added 1% treatment uplift.
Dr Juckes, treating psychiatrist, report 15 March 2018, noted her depression, anxiety and alcohol use disorder which had stabilised by this point, but the gamma GT still remained elevated. She was taking Acamprosate and Pristiq.
Wendy Grice, treating psychologist report, 29 January 2020 noted posttraumatic stress and scored positively on the PTSD checklist PCL-5, and described the symptom in the context of the fire that she survived 37 years previously and experienced acute re-experiencing symptoms, hyperarousal, triggered by exposure to recent bushfire across Australia. Ms Campbell is recovering from alcohol use disorder and reported a four-year history of problematic alcohol use. The diagnosis was PTSD, alcohol use disorder in early remission, and depressive symptom appeared to be in remission at initial assessment.
Dr Michael Prior, IME psychiatrist provided a report dated 8 October 2021, noted Ms Campbell had no prior psychiatric injury or substance use problem. Her work stress had been noted, and she denied experiencing trauma symptoms related to serious burn injury 39 years ago, or traumatic nightmares or avoidant behaviour related to this. He also diagnosed persistent depressive disorder, and alcohol use disorder in remission, and provided WPI with rating of 6%, then added 2% for treatment effects. He described the differences with Dr Clark’s WPI assessment.”
In assessing a class 2 for cpp, the MA said:
“Ms Campbell described having poor concentration, and cannot follow patterns when doing beadwork. She read books, she said for 10 minutes only. Her mental state examination is consistent with 2.”
The appellant submits that she should be assessed as a class 3, and makes the following submissions:
(a)    It is true that the appellant in her statement does say that she can concentrate on a book for about 30 minutes, but she also says that she reads five books at once, as she cannot concentrate on one thing for long. Her evidence at the examination by the MA was that she could only read for 10 minutes at a time. The inability to concentrate for long on one thing is consistent with being able to complete the assessment the MA undertook. The fact that the applicant undertook the assessment is no indicator as to what class should be applied in an assessment of cpp. Nowhere in the table that describes the criteria for the various classes for cpp is this used, and the MA should not have used this as an indicator for a class when deciding what class of cpp the appellant falls into.
(b)    The matters the MA should have considered, are her lack of ability to concentrate, or read for 10 minutes, and her inability to read anything with any continuity, i.e. reading multiple books at a time. Dr Prior’s assessment of two hours of reading has no support in any of evidence given to the MA. The MA should have also considered her inability to knit, her inability to do any complex tasks and her problems with holding a conversation (see her statement).
(c)    When one considers the relevant PIRS class for cpp, the appropriate class would be class 3, that is an inability to read more than a newspaper article. This correlates to not being able to concentrate on reading a novel, but flicking between numerous books, and finding it difficult to follow complex instructions, which the appellant clearly cannot do, as she is unable to knit or follow a pattern for beading a garment. Class 2 implies the appellant can focus on “intellectually demanding task for periods up to 30 minutes.” Clearly on all the evidence before the MA that is not the case
The descriptor for a class 2 reads: “Mild impairment: can undertake a basic re-training course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feel fatigued or develops headache.”
Class 3 reads: “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.”
On mental state examination, the MA noted:
“Ms Campbell provided a good history. She recalled detail well. She remained attentive during the assessment and was not distracted. There were no difficulties in alternating between topics and staying within topics. She maintained a normal pace and speed.”
It is noted that he saw Ms Campbell on 6 September 2022, a considerable time after she was assessed by Dr Clark and indeed some 10 months after her last statement in December 2021.
It must also be noted that Chapter 1.6 of the Guidelines states: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…” (our emphasis).
The MA clearly explained why he disagreed with Dr Clark.

The MA conducted a thorough mental state examination. The assessment itself is a cognitively demanding task that enables an objective evaluation of an appellant’s impairment in concentrating and persisting with such a task, and the pace at which an appellant can do this. The MA recorded Ms Campbell’s presentation as set out above, during an assessment that took one hour.
Contrary to the appellant’s submission that the examination “is no indicator as to what class should be applied” it is an extremely good indicator as to the level of functioning as assessed by an MA on the day of assessment.
In addition, the appellant’s capacity and functioning during the assessment is in our view inconsistent with her stated ability to read for only 10 minutes, and the MA’s observation of her ability to alternate between topics (reflecting the relatively demanding cognitive task of set-shifting) is consistent with her reported ability to read a number of books at a time.
The MA concluded that the appellant’s abilities in this category were mildly impaired and consistent with the general descriptor of a class 2 rating.
The descriptors are just that: a broad outline of the sorts of activities or cognitive impairments in a particular category.
Consistent with his task, the MA based his assessment on all of the evidence to which he referred including his own detailed assessment on the day of examination.
In our view, the MAC was both thorough and detailed, and we cannot see any errors in the findings and assessment of the MA.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 July 2022 should be confirmed.

[2022] NSWPICMP 520

19 December 2022