Canon Medical Systems ANZ Pty Limited v Berry
[2022] NSWPICMP 231
•25 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Canon Medical Systems ANZ Pty Limited v Berry [2022] NSWPICMP 231 |
| APPELLANT: | Canon Medical Systems ANZ Pty Limited |
| RESPONDENT: | Martin Berry |
| APPEAL PANEL: | Member Deborah Moore |
| DATE OF DECISION: | 25 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant challenged the assessment as regards the PIRS category of employability; Medical Assessor assessed a class 5 rating, namely totally impaired; worker had worked regularly since May 2021; Panel agreed a class 5 incorrect having regard to all the evidence; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 February 2022 Canon Medical Systems ANZ Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 27 January 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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine the 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.
The appellant submits that the MA erred in his assessment in the Psychiatric Impairment Rating Scale (PIRS) category of employability.
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 worker was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury deemed to have occurred on 25 February 2019.
After obtaining a history of the events leading up to Mr Berry’s injury, and detailing his present treatment, the MA noted present symptoms as follows:
“Mr Berry experiences anxiety which is ‘pretty much there all the time because I am constantly trying to move on since the injury’. His anxiety is relatively high (7-8/10, where 10 is maximal). He stated that before the injury, his sleep was ‘just the normal’. I asked him to tell me how many hours he was typically sleeping because of variation between individuals and he estimated that he slept eight hours a night and this has reduced to five hours a night with an hour of rumination-related initial insomnia and he reported that he tends to find that it is ‘hard to unwind’. Mr Berry wakes once or twice a night and then tends to worry about his job situation. His energy levels were rated at 75% of his pre-injury baseline and he stated that he fluctuates between feeling fatigued and restless and anxiously energetic at times and he stated that when he is in such a state, he tends to clench his hands and rub his legs together. When I asked if he was engaging in this during the interview, as his legs were not visible in the video frame he stated, ‘little bit.’ Mr Berry finds that his knees become sore when he is anxious, and it was not clear if this was because of quadriceps or leg tension. He stated that last week he had had an issue at work because someone in his new job was meant to be showing him how to complete tasks but had refused to and he stated that he felt quite anxious, felt like giving up and he felt like he was going to have ‘an anxiety attack’. He stated that he was experiencing stuttering, shaking but ‘trying not to show that’, was somewhat sweaty, has chest pain in the right of his chest and urinary frequency. He described anxiety-related irritability at times.
Mr Berry presented with memory disturbance through the review, and he stated that at home, his family tell him or show him how to do things and after half an hour or the next day he returns to his previous method of completing the task and they have to re-remind him. There were memory difficulties evident throughout the review that were quite regular. He struggled with dates in particular. His concentration was moderately disrupted overall, and this was consistent with his report that he can focus on the television for a brief period of time, limited to around 15 minutes. His concentration may lapse in this period. Mr Berry stated that he tends to try to search for jobs at night for a longer period, but his concentration is maintained for short periods intermittently of around 10 minutes or so. He stated that his family comment on his cognitive difficulties on a regular basis.
His mood is ‘definitely not happy-go-lucky’. He described pervasive depression, rated at 2- 3/10 (where 1 is most depressed, 10 most elated and 7-8 reflect euthymic mood), which was consistent with his presentation and he remarked, ‘I can’t remember the last time that I laughed at something’. Along with degradation of memory, concentration and sleep his enjoyment levels have reduced to 40% of his pre-injury baseline and Mr Berry reported that he last experienced suicidal ideation ‘before Christmas’ in December 2021 but denied any acute self-harm or suicidal ideation, intent or plans. His appetite, however, is preserved at three meals a day of normal size and enjoyment. He spoke of loss of hope – ‘I used to [have hope] but it has reduced – long period to move on and I’ve lost hope’”.
The MA added:
“I then obtained a history of jobs after his injury in a retrospective manner (backwards) because of his memory difficulties, which is how I will relate his history.
He stated that he currently works 40 hours a week for Invitro Technology and that he began last week but he reported that a colleague was meant to be helping train him in tasks but was not willing to do so, and Mr Berry recalled feeling distressed (‘I can’t do this’) and that he was felt that he was going to have ‘an anxiety attack’, which is noted above. He stated that his start date was 10 January.
Before that, he worked at HTC Medical, which makes sterilisers; he worked there for three weeks. He stopped because of ‘a lack of concentration I guess… the manager there saying I’m not really cut out for it and I should look for other work’ and he added that he was given time off for interviews and he explained that he began part time initially and then was fulltime for a month. Before that, he worked for Simon Hegele, a company installing magnets for Siemens, for a week, but he stated that he was ‘working in a new part of Royal North Shore Hospital… I ran into some old colleagues from Toshiba’ and he stated that he began to feel like he missed his old job and he would rather be installing CT machines. He stated that he stopped working in that job after a week because he was ‘finding it very difficult to concentrate.’
Prior to that, Mr Berry worked for Vital Care for a week. He stated that Vital Care makes call systems and buzzers for nursing homes and his job involved installation and maintenance but they ‘thought I wasn’t suitable’. In June 2021, he began with the SCM Group installing equipment for four weeks, but he stated that they ‘called me into the office after four weeks and said I was not mechanically minded’. Mr Berry did not work from 8 July 2020 to 10 May 2021 as far as he could recall (his recollection of dates may be incorrect).”
As regards his social activities and activities of daily living (ADL’s) the MA set out details with respect to all categories in the PIRS.
Relevant to the issue in dispute, he said:
“Adaptation.
Although Mr Berry believes that he has capacity to work there is a proven record of a number of different attempts to return to work since the injury, all of which have been ultimately unsuccessful because of aspects of his symptoms, including lack of energy, concentration and memory difficulties, and anxiety, as well as depressive symptoms. It is my view that despite multiple attempts, all of which have historically failed, there is actually no realistic psychiatric capacity for employment because of his high level of anxiety and depression.”
Findings on mental state examination were reported as follows:
“Mr Martin Berry presented as a 62-year-old male of a thin to average build and an average stature who was seated during the review of about an hour. He was not evidently restless within the video frame, though later he spoke of anxious energy dispelled through restlessness and he stated that he tends to engage in clenching his hands and rubbing his legs and he reported that he was engaging in some of this at the time of the review. His speech was slow, his volume normal, and his thought form was tangential at times, requiring redirection back to the topic at hand at several points. His concentration was moderately disrupted, necessitating requestioning at times. His mood was low and his affect restricted in range, moderately anxious in quality, but not teary or guarded. Mr Berry gave a history of the work injury in a manner that was difficult to understand and thought disordered, but reported that changes in his mental state commenced through the accepted injury in the context of lack of training to service ultrasounds, with training in 2013 and in 2019 he was asked to service an ultrasound and he stated that normally he was busy installing and working on CT machines. He stated that there was a lack of support or training from his employer and he described a punitive approach to him. He described pervasive high anxiety and depression and despite this incapacitation which was evident he stated that he believed that he could work, though he gave an account of a number of different attempts to work since all of which have failed, where he had been asked to leave because of his difficulties functioning in the role. Mr Berry denied acute self-harm or suicidal ideation, intent or plans at review, reporting that he had last experienced this prior to Christmas. He spoke of his difficulties with his GP and feeling a lack of support. His insight into the impact of his injury on his work capacity appeared to be limited.”
He then summarised the injuries and diagnoses as follows:
“Mr Martin Berry is a 62-year-old man employed by Canon Medical Systems Pty Ltd as a Service Engineer. He described the development of a work-related psychiatric injury with the formation of anxiety and depressive symptoms, which have not improved despite psychological therapy. He did have trials of antidepressants, and did struggle to provide a clear history, but these were ultimately not successful trials. Despite multiple attempts to try and return to work in various locations, each has ultimately failed because of his psychiatric symptoms.
He presents with high, pervasive anxiety and depression with both symptom sets at around a moderate-to-severe grade and his symptom severity warrants diagnoses of a DSM-5 major depressive disorder and a generalised anxiety disorder. This is broadly similar to the diagnosis of Dr Martin Allan (January 2021) who diagnosed a major depressive disorder, and Dr Kumar who made reference to both anxiety and depression. Associate Professor Kaplan’s diagnosed an adjustment disorder with anxiety, which he later felt had resolved. It is my view that there may have been periods of improvement in the condition, but at the current time his symptoms have deteriorated relative to those periods. It is my view that the condition itself currently is stable and not likely to change by more than 3% in the next year, with or without medical treatment.”
The MA assessed 15% WPI.
He added:
“In making that assessment I have taken account of the following matters:- The matters described above – examination findings in terms of mental state examination, clinical history, other medical reports and psychiatric reports.
More specifically in terms of the impairment level, I note that Dr Allan (report of January 2021) determined a 22% whole person impairment whereas Dr Kumar (report of June 2021) determined 7% and my impairment assessment of 15% lies in the middle of the two.
I disagree with both the class 2 score of Dr Kumar and the class 1 score of Dr Allan in the domain of Self Care and Personal Hygiene and have determined at the current time that Mr Berry’s functioning in this domain is actually within normal boundaries – he did not describe being prompted to bathe, is bathing and changing his clothes daily, and eating three meals a day with normal meal size and enjoyment; while his functioning in the past may have been poorer, it appears to be better currently in this domain at current. When I asked if there are periodic occasions where his functioning declines in these domains, he denied this being the case. Therefore, the most appropriate domain for that in this section is class 1.
I agree with the class 3 score provided by both psychiatrists in the domain of Social and Recreational Activities. I prefer a score of class 1 for Travel rather than the class 2 scored by Dr Allan because Mr Berry currently is able to travel to his new place of employment 90 minutes away and has had a number of different new jobs since the injury and has been able to commute to them, furthermore it is his own view that he can travel to new places. This is in keeping with Dr Kumar’s finding in this domain…
I ultimately prefer the class 5 Adaptation score provided by Dr Allan over the class 3 impairment score of Dr Kumar because although Mr Berry is of the view that he can return to work ultimately his attempts have all failed in the five roles he had before the current role and I am fearful that the current role will also fail because of his symptoms.”
In commenting on other medical opinions and documentation, the MA said:
“The psychiatric report of Dr Martin Allan (6 January 2021) noted a poor prognosis, diagnosed major depressive disorder and determined a 22% whole person impairment (class scores 3, 3, 2, 2, 3, 5).
The psychiatric report Dr Mukesh Kumar (4 June 2021) diagnosed an adjustment disorder like disorder (other specified trauma–and stressor–related disorder) and determined impairment of 7% (class scores 2, 3, 1, 2, 2, 3) and he commented on areas where his impairment assessment differed from Dr Allan.
A report of general practitioner, Dr Saravanan Royan (27 July 2021) noted capacity to work and that Mr Berry was currently employed in a medical equipment installation role in Sydney and looking for other job opportunities, with no restrictions of work capacity but fluctuant work capacity from February 2020 onwards…
Certificates of capacity were noted…
The psychiatric report of Associate Professor Robert Kaplan (5 August 2019) diagnosed an adjustment disorder with anxiety. His report of 2 March 2020 diagnosed an adjustment disorder with anxiety, resolved. A further copy of Dr Kumar’s report was noted…”
The descriptor for a Class 5 rating for employability (or adaptability) in Table 11.6 of the Guidelines reads: “Totally impaired: Cannot work at all.”
The MA said in the Table accompanying the MAC the following:
“Although Mr Berry believes that he has capacity to work there is a proven record of a number of different attempts to return to work since the injury, all of which have been ultimately unsuccessful because of aspects of his symptoms, including lack of energy, concentration and memory difficulties, and anxiety, as well as depressive symptoms. It is my view that despite multiple attempts, all of which have historically failed, there is actually no realistic psychiatric capacity for employment because of his high level of anxiety and depression.”
The appellant summarised the evidence and the MA’s findings as follows:
“a. On pages 4-5 of the MAC, the MA recorded the Applicant’s post-injury work history (in chronological order) as follows:
i.[from 10 May 2021] Mr Berry worked for Vital Care for a week… Vital Care makes call systems and buzzers for nursing homes and his job involved installation and maintenance but they ‘thought I wasn’t suitable’.
ii.In June 2021, he began with the SCM Group installing equipment for four weeks, but he stated that they ‘called me into the office after four weeks and said I was not mechanically minded’
iii.‘…he worked for Simon Hegele, a company installing magnets for Siemens, for a week, but he stated that he was ‘working in a new part of Royal North Shore Hospital… I ran into some old colleagues from Toshiba’ and he stated that he began to feel like he missed his old job and he would rather be installing CT machines. He stated that he stopped working in that job after a week because he was ‘finding it very difficult to concentrate’.
iv.He worked at HTC Medical, which makes sterilisers… for three weeks. He stopped because of ‘a lack of concentration I guess… the manager there saying I’m not really cut out for it and I should look for other work’ and he added that he was given time off for interviews and he explained that he began part time initially and then was fulltime for a month.
v.‘He currently works 40 hours a week for Invitro Technology … he began last week but he reported that a colleague was meant to be helping train him in tasks but was not willing to do so, and Mr Berry recalled feeling distressed (‘I can’t do this’) and that he was felt that he was going to have ‘an anxiety attack’… He stated that his start date was 10 January (our emphasis).
b. The MA stated: “I ultimately prefer the class 5 Adaptation score provided by Dr Allan over the class 3 impairment score of Dr Kumar because although Mr Berry is of the view that he can return to work ultimately his attempts have all failed in the five roles he had before the current role and I am fearful that the current role will also fail because of his symptoms.”
c. The MA recorded that: “A report of general practitioner, Dr Saravanan Royan (27 July 2021) noted capacity to work and that Mr Berry was currently employed in a medical equipment installation role in Sydney and looking for other job opportunities, with no restrictions of work capacity but fluctuant work capacity from February 2020 onwards”.
d. The MA stated: “Certificates of capacity were noted”.
The appellant submits that the evidence does not support a class 5 rating for reasons set out as follows:
“a. The history of the Applicant’s post-injury employment recorded by Dr Takyar indicates that he has predominately worked at full-time hours in all of his roles since May 2021
b. The Applicant reported that the reasons for his ceasing employment with at least two employers (SCM Group and Vital Care) related to a lack of appropriate vocational skills, rather than any incapacity for work due to his work-related injury (i.e. “they thought I wasn’t suitable” and “they called me into the office after four weeks and said I was not mechanically minded”).
c. Dr Kumar (whose report was filed in these proceedings, see Reply page 215) examined the Applicant on the Appellant Employer’s behalf in June 2021 and considered that he was capable of working up to 20 hours per week in alternative employment.
d. The Applicant’s own GP, Dr Royan, provided a certificate of capacity (also filed in these proceedings, see ARD page 451) stating that the Applicant was fit for pre-injury duties from 3 August 2021. The MA did not refer to this certificate in reasoning that the Applicant was totally impaired for employment.
e. The Applicant reported that he was working 40 hours per week at the time of the examination.”
The appellant added:
“The MA erred in accepting Dr Allan’s opinion that the Applicant was totally impaired in circumstances where Dr Allan’s assessment took place prior to May 2021, prior to the Applicant having resumed employment…
The Applicant’s inability to retain full time employment, particularly in circumstances where the retention is not related to his injury but rather circumstances where he may not be suitable for the role, should not, of itself, result in an assessment that the Applicant is ‘totally impaired and cannot work at all’, which is the PIRS class descriptor for class 5 impairment.”
We agree with the appellant’s submissions.
We accept that the MA correctly noted that Mr Berry had some problems in retaining work, although as the appellant pointed out, this was not always related to his injury.
That being said, Mr Berry’s ability to undertake work, on and off since May 2021, sometimes for many weeks at a time, does not fulfil the requirements for a Class 5 rating, that is, “totally impaired and cannot work at all.”
It seems to us that perhaps Mr Berry found he lacked the necessary skills to perform more technical tasks, but could in our view hold down less technical roles.
We do accept that Mr Berry is impaired in the category of employability.
The descriptor for a Class 3 rating reads: “Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”
The descriptor for a Class 4 reads: “Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
In our view Mr Berry falls somewhere in between these descriptors, but having regard to the totality of the evidence, we are satisfied that a Class 4 rating is appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 January 2022 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
| 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 Dr Ash Takyar 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 Psychological | 25 February 2019 (deemed) | Chapter 11 | Not applicable | 13% | Nil | 13% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
Ms Deborah Moore
Member
Dr Patrick Morris
Medical Assessor
Dr Nicholas Glozier
Medical Assessor
23 May 2022
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