Chisholm v Life Without Barriers
[2021] NSWPICMP 217
•15 November 2021 (amended 25 November 2021)
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Chisholm v Life Without Barriers [2021] NSWPICMP 217 |
| APPELLANT: | Alison Leigh Chisholm |
| RESPONDENT: | Life Without Barriers |
| APPEAL PANEL: | Member R J Perrignon Dr Patrick Morris Professor Nicholas Glozier |
| DATE OF DECISION: | 15 November 2021 (amended 25 November 2021) |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of whole person impairment (psychological); whether assessor erred in assessing a class 2 impairment in respect of Self-care and personal hygiene; whether assessor erred in assessing a class 2 impairment in respect of Social and recreational activities; Held - Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Chisholm, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Bench dated 4 August 2020.
The appellant suffered psychological injury as a result of the nature and conditions of her employment as a disability support worker and case manager. The date of injury was deemed to be 18 September 2017.
By a Medical Assessment Certificate dated 4 August 2020, Dr Bench diagnosed
Post Traumatic Stress Disorder and Persistent Depressive Disorder as a result of injury, and assessed a 9% whole person impairment (psychological). Under the Psychiatric Impairment Rating Scales (PIRS), he assessed a class 2 impairment (mild impairment) in respect of Self care and personal hygiene and Social and Recreational Activities.The appellant alleges error and the application of incorrect criteria in respect of both rating scales. In both cases, she says that the evidence did not support a class 2 impairment, but rather a class 3 impairment.
The Appeal Panel conducted a preliminary review of Dr Bench’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
The written submissions of the parties have been considered. It is unnecessary to reproduce them in full, but in brief summary, the appellant worker submits as follows:
(a) in respect of Self care and personal hygiene:
(i)the Medical Assessor failed to make the finding required of him by the relevant class descriptor for Class 3, namely that the appellant ‘is’ able to live independently. He only found that she ‘would be’ able to live independently;
(ii)Dr Allan rated the appellant’s impairment as moderate (Class 3), whereas the Medical Assessor and Dr Potter rate impairment as mild (Class 2). Each gave reasons;
(iii)the evidence before the Medical Assessor supported the finding of
Dr Allan that she cannot live independently, because she needs prompting from her partner to shower and brush her teeth regularly. The nightmares, intrusive thoughts and images noted by the Assessor at page 6 of the Medical Assessment Certificate distract her from carrying out self-care and personal hygiene tasks. Her poor memory, evidenced by her statement, also compromises her ability to do so, and causes her to neglect her medication;(iv)though the Assessor relied on a history that the appellant cooks four to five times per week, he did not take into account the evidence in her statement that she now prepares only simple meals, whereas she was not so limited prior to injury, and
(v)the appellant struggles to carry out chores around the house and is prompted by her partner to do so.
(b) in respect of Social and Recreational Activities:
(i)in assessing a class 2 impairment, the Assessor relied on a history that the appellant enjoys watching television and lots of podcasts. In her statement, she explained that she cannot concentrate on television for more than 10 or 15 minutes;
(ii)she is not actively involved in these activities. She remains quiet and withdrawn;
(iii)the Assessor relies on a history that the appellant and her partner were attending cafes and restaurants fairly regularly until the recent lockdown. In fact, she only goes out with a support person, which supports a class 3 impairment;
(iv)the Assessor relies on an implied finding that the appellant regularly attended music concerts until March 2020 when she ceased because of the COVID restrictions. That is not supported by the history he took, and is contrary to the evidence before him in her statement that she struggles to be in loud or overcrowded places, and
(v)the Assessor relies on a history that the appellant is a singer in a band and a member of a cricket club. He did not obtain a sufficiently detailed history of her participation in these activities to justify his assessment of a class 2 impairment.
In summary, the respondent employer submits as follows:
(a) to succeed in respect of either rating scale, the appellant must show that the assessment of a class 2 impairment was so flawed that another reasonable assessor could not have made the same finding: Parker v Select Civil Pty Limited [2018] NSWSC 140 at [66];
(b) in respect of Self care and personal hygiene:
(i)the distinction drawn by the appellant between ‘is able’ to live independently and ‘would be able’ to do so is ‘mere semantics’. He is of the view that she is able to live independently;
(ii)as Dr Potter also assessed a class 2 impairment, it follows that another reasonable assessor could make the same assessment as Dr Bench;
(iii)the appellant does not demonstrate that the Assessor failed to take into account any relevant evidence. It is up to the Assessor to determine what weight to give it: Baxter v State of New South Wales [2019] NSWWCCMA 145 at [105]-[108];
(iv)the Assessor took into account both the appellant’s statement and the report of Dr Allan, and explained why his assessment differed from Dr Allan’s. He explained that on the history he took, the appellant showered daily (with prompts), brushed her teeth daily, and cooked four or five times per week. To the extent that history differed from that in any statement or taken by any other doctor, the Assessor was entitled to prefer the history he took, and
(v)the reasons given by the Assessor were adequate to explain his path of reasoning.
(c) in respect of Social and Recreational Activities:
(i)Dr Bench was entitled to take into consideration the appellant’s participation as a singer in a band, notwithstanding Dr Allan’s view that it constituted self-treatment rather than a social event;
(ii)the history on which the Assessor relied was set out in his reasons. There was no failure to take an adequate history;
(iii)the Assessor did not fail to take into account the appellant’s statement evidence. He reviewed it in the Medical Assessment Certificate. He was entitled to prefer the history he took at examination, however. That includes a history that the band was ‘playing shows’ monthly until lockdown, and
(iv)in any event, the history taken, of enjoying television, listening to podcasts, enjoying activities with her son, singing in a band, and playing with the cricket club, is inconsistent with a class 3 impairment.
Self care and personal hygiene
In the PIRS Rating form, the medical assessor gave the following reasons for assessing a class 2 impairment in respect of Self care and personal hygiene:
“The applicant is living with [her partner] Sarah and [her son] Harrison in a mortgaged residence in Sutherland. She is showering "every night when Harry has a bath, and Sarah reminds me". She brushes her teeth, "usually when Sarah tells me to … usually once a day". With regard to changing her clothes, she stated, "I wear the same shirts and jumper. Sarah will then put them in the wash, and I will have to put something else on". The applicant noted she cooks four to five times per week for the family. She noted, "Sarah does most of the chores". As such, it is the evaluator's opinion the applicant would be able to live independently. This is most consistent with a mild impairment.”
With respect to the sentence highlighted, we can discern no practical distinction between the phrase, ‘would be able to live independently’ and the formula used in the Guidelines: ‘able to live independently’. We interpret Dr Bench to mean that, in his view, the appellant was able to live independently, for the reasons he gave.
Dr Bench noted Dr Allan’s assessment of Self-care and personal hygiene, and explained the difference from his own assessment in the following terms - emphasis added:
“Dr Allan has assessed a moderate impairment in Self-care and personal hygiene, noting she requires significant prompting to care for herself, cooking less frequently and simpler foods than she would previously prepare. He opined she would be unable to live independently. Such was not consistent with the history given during the clinical evaluation. The applicant is showering daily, at times requiring prompts. She brushes her teeth once a day, and she completes the cooking four to five times per week. Her partner does most of the chores. In this context, it is the evaluator's opinion she would be able to live independently. This is most consistent with a mild impairment.”
The descriptors for class 2 and 3 impairment are as follows:
| “Class 2 | Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food. |
| Class 3 | Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.” |
The task of the assessor is to compare the history and findings on examination with the descriptors in each of these classes and determine into which class the evidence best fits. In part, the history taken is consistent with the example in class 3 of ‘needs prompting to shower daily’. However, other elements are inconsistent with a class 3 impairment, such as ‘does not prepare own meals’.
Dr Bench took into account the entire history that he was given at examination, the reports of Dr Allan, Dr Potter and others, and the appellant’s own statements, particularly the statement of 15 October 2020, which set out the effects of her disorder on activities of daily living, from which he quoted extensively. He took into account the symptoms of intrusive thoughts and images, and the evidence in the appellant’s statements. That included evidence that she suffered from poor memory, that the meals she now prepares are simpler than those she used to prepare before injury, and that she struggled to carry out chores around the house, as to which she was prompted by her partner.
After taking all this evidence into account, he considered that the appellant ‘would be able to live independently’.
In our view, whether or not that was the only possible conclusion, it was reasonably open to him on the evidence, and he was entitled to come to it. Dr Bench carefully explained in his reasons why he reached that conclusion, and why it differed from the opposite conclusion reached by Dr Allan. His reasoning was patent, and adequate to support the conclusion to which he came, that the appellant was able to live independently. That conclusion supports a class 2 impairment.
In our view, the evidence did not compel a finding that, in order to live independently, the appellant required regular support, which is one of the descriptors for a class 3 impairment, and was quite inconsistent with another descriptor, namely, ‘Does not prepare own meals’. Viewed as a whole, the evidence did not compel a class 3 assessment.
We can identify no error in the assessment of a class 2 impairment, or the application of incorrect criteria.
Social and recreational activities
In the PIRS Rating form, the medical assessor gave the following reasons for assessing a class 2 impairment in respect of Social and recreational activities:
“The applicant is a singer in a band, South Street Trio. She noted prior to the lockdown, they were playing shows approximately on a monthly basis. They have not played in seven weeks due to the lockdown. She enjoys watching television such as The Handmaids Tale or Dr Death. She listens to lots of podcasts. She participates in various activities with Harrison, such as kicking a ball. She is a member of the University Women’s Cricket Club, however, will only play the home games. She refuses to play away games due to the distance. She does not attend practice. Prior to the current lockdown, she and Sarah were going out to cafes and restaurants “fairly regularly”. She has not gone to any concerts or music festivals since March 2020. Given the applicant is a member of a band and the University Cricket Club, this is most consistent with a mild impairment.”
Noting that Dr Allan had assessed a class 3 impairment, he explained the difference from his own assessment in the following terms:
“Dr Allan assessed a moderate impairment in Social and recreational activities, noting she would only socialise in the presence of a very close friend or partner. "I do not regard her to be able to go out alone to social events, nor do I regard her involvement as a singer in a band as being a social event; rather, it is part of her self treatment." On the other hand, such is not consistent with the Permanent Impairment Guidelines. She is a member of the University Women’s Cricket Club. She was a member of a band and was playing up until the current lockdown. Such is more consistent with a mild impairment.”
The descriptors for class 2 and 3 impairment are as follows:
| “Class 2 | Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team). |
| Class 3 | Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.” |
The appellant did not submit that Dr Bench erred in taking into account an irrelevant consideration, namely, watching television and enjoying podcasts. She argued that she lacked the mental capacity to concentrate on them because her pathology distracted her, and that, as she was not actively involved, but remained quiet and withdrawn, it was consistent with a class 3 impairment.
Even if she had argued successfully that watching television and enjoying podcasts was irrelevant, it would have made no difference to the outcome because, for the reasons which follow, it is our view that a class 2 assessment was reasonably open on the other evidence.
Dr Bench was entitled to rely on the history he took, and to prefer that history to earlier histories taken by other clinicians, or advanced in the appellant’s own statements. He did not take a history that the appellant was incapable of concentrating on television, by reason of distractions or otherwise. Dr Bench did not take a history as to the appellant’s social activities, if any, while watching television or podcasts, so it is not possible to determine whether she was ‘quiet and withdrawn’ as submitted.
We accept the appellant’s submission that going out to cafes and restaurants with her partner is consistent with going out with a support person. However, it is not consistent with a class 3 impairment, because the appellant went out regularly before lockdown. A class 3 impairment would require that she ‘rarely’ do so. These activities, though relevant, are incapable on their own of determining into which class the impairment best fits.
We do not accept the appellant’s submission that the Assessor relied on an implied finding that the appellant regularly attended music concerts until lockdown in March 2020. In his reasons, he noted only that she had not attended a festival since March 2020.That was simply a recitation of what she told him, and an indication that he took it into account. He did not, so far as we can tell, draw any inference from it as to what she did with respect to concert-going before lockdown. Even if he did, contrary to our understanding, he was simply reciting the history given to him. The fact that it was recorded in his reasons and not under the heading, ‘History relating to the injury’, does not persuade us to the contrary.
The appellant is correct in submitting that the Assessor relied on the history of the appellant’s participating as a singer in a band and playing with a cricket club. By necessary implication, he inferred that singing in a band, and playing cricket, were social activities. In our view, that inference was readily open to him. Whether or not the appellant spoke with audience members, it is a reasonable inference that she would have to interact, at least to some degree, with other members of the band, and other members of the cricket team. No contrary allegation is made in the submissions.
That is sufficient to mark the activity as a social activity. The Assessor was under no duty to interrogate the worker with a view to ascertain the level of her capacity to participate, her need if any for a support person or prompting to attend, the location of games, her precise relationship with other players, or her reasons for not attending cricket practice.
Having regard to her activities in the band and at cricket, in the context of the evidence as a whole, the evidence was consistent with a class 2 impairment, and such an assessment was reasonably open to the Assessor. We can identify no error, or the application of incorrect criteria.
Conclusion
For the reasons given, the Medical Assessment Certificate of Dr Bench is confirmed.
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