Clarke v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	Clarke v Secretary, Department of Communities and Justice [2024] NSWPICMP 634
APPELLANT:	Briony Clarke
RESPONDENT:	Secretary, Department of Communities and Justice
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	6 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment under the psychiatric impairment rating scale (PIRS); appeal with respect to social and recreational activities and social functioning; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 May 2024 Briony Clarke lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Aman Suman, who issued a Medical Assessment Certificate (MAC) on 30 April 2024.
Ms Clarke 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.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made an assessment in the basis of incorrect criteria with respect to the assessment under the Psychiatric Impairment Rating Scale (PIRS) table for social functioning. We conducted a review of the original medical assessment, limited to the grounds 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).

RELEVANT FACTUAL BACKGROUND

Ms Clarke suffered a psychological injury which is deemed to have occurred on 10 September 2020 in the course of her employment by the Secretary, Department of Communities and Justice (the Secretary) in the Sheriff’s Office.
Using the Psychiatric Impairment Rating Scale (PIRS), the Medical Assessor assessed 9% whole person impairment (WPI), placing Ms Clarke in class 2 for each of social and recreational activities, travel, social functioning and concentration, persistence and pace. He assessed her in class 3 for self care and personal hygiene and class 5 for employability. He added 1% for the effect of treatment and did not make a deduction under s 323 of the 1998 Act, resulting in total WPI of 10%.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Ms Clarke to undergo a further medical examination because the MAC does not disclose error.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
Ms Clarke submitted that the Medical Assessor erred in his assessment under the PIRS tables for social and recreational activities, social functioning and concentration, persistence and pace.
With respect to social functioning, she said that Dr Chow (who assessed her at the request of her solicitors) and Dr Doris (retained by the Secretary) assessed her in class 3. (That statement is incorrect – Dr Doris assessed Ms Clarke in class 2). Ms Clarke referred to the statement evidence about the strain in her relationship with her husband to argue that the Medical Assessor was wrong to assess her in class 2.
Ms Clarke said that the Medical Assessor erred in assessing her in class 2 for social and recreational activities on the basis of photographs taken three years before the assessment and when she was taking medication which “caused her to be manic”. She said that it was incorrect for the Medical Assessor not to consider her extremely full social life before the injury.
Though the summary of submissions indicated that Ms Clarke also appealed in respect of the assessment of concentration, persistence and pace, no substantive submissions were made.
Ms Clarke sought re-examination.
In reply and with respect to social functioning, the Secretary submitted that the Medical Assessor did not err in assessing Ms Clarke in class 2, he had assessed all documents and had exercised his clinical judgement and “the MAC is presumed to be correct”.
Turning to social and recreational activities, the Secretary submitted that the Medical Assessor had justified his assessment in class 2 and considered the inconsistencies between Ms Clarke’s description and the investigation report.
The Secretary noted that Ms Clarke did not make any submissions with respect to concentration, persistence and pace and said that there was no basis to re-examine which would provide Ms Clarke with a “de novo determination of impairment to which she is not entitled”.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].

The MAC

The Medical Assessor noted that Ms Clarke lives with her husband and six children and that she said her “husband lives in a caravan on the property and their relationship is “not the best”. He said:
“Ms Clark told me that she had been doing well in her mental health before she started with the sheriff's office in October 2017, ‘I was living with my family. I worked as a funeral director for approximately three years before I decided to take up the job with the sheriff's office. I had a group of friends. I was quite social. I used to enjoy playing indoor and outdoor netball. I was very much involved with my kids’ school activities. I was an outgoing and confident person. I would never leave my house without makeup. I used to be quite empathetic towards others’.”
Describing Ms Clarke’s history of her treatment, the Medical Assessor said that she told him:
“‘At one point, I experienced elated symptoms with Mirtazapine, which was then changed. I also experienced side effects to Sertraline’. Ms Clark denied receiving inpatient psychiatric admission. Dr Adesanya’s (consultant psychiatrist) clinical records highlight trials of various antidepressant medications, including Sertraline, Mirtazapine, and, more recently, Fluoxetine. She has continued to use Diazepam and Quetiapine in addition to her antidepressant treatment, indicating the severity of her symptoms.
Ms Clark’s description indicates her experiencing persistent depressed mood with panic attacks over the last approximately four years. She highlighted her ongoing struggle with her energy and motivation. Ms Clark told me that her mental health has adversely affected her relationship with her husband and her kid. She told me, ‘I spend most of the time in my room; I am sensitive to light and noise’. She told me that over the years, she has struggled to manage activities of day living and household chores. She said, ‘I don't care about myself as much’. Ms Clark highlighted that she has struggled with confidence and avoids taking on tasks or responsible jobs. She has avoided returning to any form of work due to ongoing mental health stressors.
Ms Clark confirmed that she has been on holiday with her family and friends. ‘Each time I have been away, I would either get a panic attack or feel miserable.’ She told me that she does not enjoy such activities or engagements.”
The Medical Assessor set out his history of Ms Clarke’s activities by reference to the PIRS tables and transposed that information to the PIRS Rating Form. For social and recreational activities, he said:
“Ms Clark told me that she has been experiencing anxiety in the context of being away from her place. She told me that despite mental health issues, she has been on various trips, as highlighted in ProCare report. She said, ‘It's hard for me. I have been unable to enjoy these outings’. Ms Clark highlighted that she has not been able to enjoy her hobbies, including playing netball.
I have considered the information available from the ProCare report in allocating class 2 under this heading.”
For social functioning the Medical Assessor wrote:
“Ms Clark told me that her relationship with her husband is strained. She said, ‘Everybody in my family is walking on eggshells, interacting with me.’ She told me she had lost contact with almost all her friends except two.”
The Medical Assessor described his mental state examination and summarised relevant material from the file. With respect to the Procare investigation report dated 19 October 2023, he said:
“…Since the date of the injury, the claimant has socialised with friends, played netball, attended art classes, gone to hairdressers, attended other social events, and travelled to Queensland, Victoria, and additionally, her social media provides many images of drawings, paintings, and homemade bird houses.”
He said:
“Ms Clark’s description indicates severe functional deficit due to her ongoing complex mental health issues. Her description of her symptoms does not match the detail evident from the ProCare report.
I was not able to elicit past psychiatric history, history of addiction disorder or Ms Clark presenting with specific personality traits or deficits contributing to her presentation.
Overall, as per the review today, I am of the opinion that Ms Clark’s presentation/symptoms satisfy the criteria of
• Persistent depressive disorder.
• Panic disorder.”
The Medical Assessor did not explain his addition of 1% for the effects of treatment but, in the absence of a ground of appeal, we have not considered that component of the assessment.

Evidence in the file

The evidence in the file shows that Ms Clarke continues to experience symptoms and is unable to work. The determination of the appeal requires a brief consideration of the salient features of evidence which are relevant to the impairment measured by the PIRS.
Ms Clarke made two statements dated 12 May 2023 and 16 February 2024. The second addresses the investigation report dated 19 October 2023 and she provided comments on several of the social media posts highlighted in the report. In particular, she highlighted posts in January and February 2021 and said that was when she was taking Mirtazapine, as was a photograph of her playing netball in May 2021. She said that all of the photographs of paintings and sketches were for art therapy and took her weeks to do.
Ms Clarke’s husband provided a statement dated 16 February 2024 describing the changes he observed in Ms Clarke since the injury. He said that he sleeps in the caravan in the carport because Ms Clarke asked him for space.
The reports from Ms Clarke’s treating practitioners are mostly dated between 2020 and 2023. Notes from Dr Edwards, Ms Clake’s general practitioner, show that Mirtzapine was prescribed on 1 February 2021 and ceased on 18 March 2021 due to her adverse reaction. An incident causing facial burns was one of the reasons for that cessation as was impulsive spending. Dr Edwards recorded that the bad decisions and snappiness settled by 26 March 2021. Dr Edwards noted a decline in Ms Clarke’s condition in mid-June 2021 and inpatient treatment was considered.
According to those notes, Ms Clarke suffered some further relapses in 2022 though on 22 August 2022 she attended her general practitioner’s rooms “limping and simply said ‘netball’ as she walked in”. On 19 September Ms Clarke said that she “has been busy with netball finals which she’d normally enjoy but hasn’t been enjoying”. By 10 November 2022 she had “increased interest in her hobbies (eg normally enjoys painting, had disengaged from it but now findings herself painting more again and looking into other arts/crafts (resin)”. Ms Clarke had increased motivation to cook.
In December Ms Clarke saw Dr Edwards on the same day as she was meeting a friend for morning tea and in January went out for dinner. The notes show that her capacity to enjoy activities also ebbed and flowed throughout 2023 and on some occasions she experienced panic attacks. Ms Clarke underwent a number of changes of medication. In July 2023 she felt overwhelmed and was “counting down to the end of the school holidays, which is highly unusual for her as she’s normally very close with her children”. She was able to enjoy some limited socialising. The notes end in September 2023.
Ms Clarke began consulting Dr Adesanya, psychiatrist, in May 2021. He noted that she had suffered facial burns from a can of condensed milk in the oven which she attributed to manic-like side effects from taking Mirtazapine. She had ceased taking it by the time of his first consultation. By November 2021 she had seen him five times and he had adjusted her medication. He diagnosed panic disorder and unspecified caffeine-related disorder. His last report is dated in January 2022 but his clinical notes continue until June 2023. On 31 October 2022 Dr Adesanya recorded:
“Briony reported feeling depressed, numbed, crying and functioning well despite adherence with the current medications. She would like to trial another antidepressant medication for her condition. Briony further advised that a previous trial of treatment with Mirtazapine Tabs was effective but made her hypomanic, but is happy to recommence the medication at a lower dose.”
Ms Clarke ceased taking Mirtazapine in March 2023. Dr Adesanya did not note hypomania as a side effect, the primary issue being weight gain.
Dr Chow assessed Ms Clarke at the request of her solicitors and reported on 4 August 2023. He noted that she had hypomanic behaviours when first taking Mirtazapine. He assessed Ms Clarke in class 3 for social and recreational activities because she was not engaging in hobbies or activities and not engaging socially. He assessed her in class 3 for social functioning because:
“Ms Clarke is not seeing friends and has lost friendships. The relationship with her husband is strained. They have recurrent arguments. There is no intimacy. There have been talks of separation. She sleeps in the lounge most of the time. She is more distant with her children. She has limited contact with her siblings and her parents. She has recurrent arguments with her family due to her irritability.”
Dr Doris saw Ms Clarke at the request of the Secretary’s insurer on 8 March 2022. He noted that she experienced a prolonged hypomanic episode when taking Mirtazapine. He said that she had started going to the gym with some friends in recent weeks before “becoming unwell with coronavirus”, and that she can get some enjoyment from attending an art class or time spent with her children. Diagnosed a major depressive episode with anxious distress, which in retrospect appears part of a bipolar II disorder.
Dr Doris prepared another report dated 10 August 2023. He recorded that Ms Clark was a member of the painting therapy group, which meets weekly, though she estimated she was only able to attend every few weeks. He confirmed his previous diagnosis. He assessed 17% WPI, and noted that she had deteriorated. Dr Doris assessed Ms Clark in class 1 for social and recreational activities, because even though she experiences discomfort in public, she attends her children sporting events, and will occasionally go out for a family event, or on a family outing, even though she may find the environment, overwhelming and aversive. She had gone ice-skating with her family shortly before the examination. Dr Doris assessed Ms Clark in class 2 for social functioning and said:
“Briony lives with her husband and their six children. She maintains some contact with members of her extended family and friends. She has lost contact with a number of friends during the course of this illness. There are some tensions in the relationship between Briony and her husband as he has taken on more the domestic chores while she has been unwell. Briony continues to be a regular supporter of her children’s sporting activities.”
Dr Doris prepared a further report dated 9 October 2023 after reviewing some other information. He did not see the investigation report dated October 2023.
The investigation report dated 19 October 2023 reviewed a number of social media profiles, including an out of date profile on LinkedIn. She had an active Facebook page, last updated two weeks before the date of the report, a private TikTok account updated three days before and a public Instagram account, which was updated two months before.
It is important to remember that the PIRS recognises that there is a variety of conduct which can be described as normal. Assessment in class 1 is appropriate where there is “no deficit or minor deficit attributable to the normal variation in the general population”.
We have considered the PIRS tables in the order in which the parties addressed them.

Social functioning

The social functioning table measures the strength of relationships. The examples for class 2 (mild impairment) and class 3 (moderate impairment) are:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
When those examples are considered in light of the evidence we have summarised above, it is clear that the assessment made by the Medical Assessor was correct. Ms Clarke continues to live at home with her husband and six children.
Mr Clarke’s statement conveys sadness about the changes observed as a result of the injury and the resulting strain but confirms that Ms Clarke’s marriage and family remain intact. Ms Clarke’s statement to the Medical Assessor that her husband lives in caravan on the property is inconsistent with his own statement. While Mr Clarke sleeps in a caravan in a carport, he said that it is because there are not enough bedrooms in the house. The use of the caravan is equivalent to Ms Clarke and her husband sleeping in separate rooms in the same house, which would not, of itself, lead to assessment in class 3.

We accept that an investigation report such as that 19 October 2023 will rarely tell the full story of a person’s functioning. The photographs from social media accounts confirm that Ms Clarke undertakes some activities with her family and with friends. All of the relevant posts were made by Ms Clarke and they show that she is able on some occasions to participate in activities. For some people, occasional social media posts can be their method of social interaction. Ms Clarke’s posts, read with her general practitioner’s notes, show that she continues to maintain relationships in person, though at a reduced level.
Ms Clarke has lost some friendships and there is some strain and change in her family relationships but there is no evidence of separation. She told the Medical Assessor that she is receiving increasing care and support from her family. The Medical Assessor’s assessment in class 2 does not disclose error.

Social and recreational activities

The social and recreational activities table measures the extent of a worker’s participation in those activities and the examples generally involve some interaction with others[3] though recreational activities are not necessarily always undertaken in company.[4]
[3] Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [100].
[4] See Lancaster v Foxtel Management Pty Ltd [2022] NSWWSC 929 at [72]-[73].
The examples for classes 2 and 3 are:
“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).
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.”
While there were a series of Facebook posts of activities with friends during that short period in early 2021 when Ms Clarke suffered hypomania as a result of taking Mirtazapine, the occasions depicted on all of her profiles were not limited to that time period. Where those posts were different from the history that Ms Clarke provided, it was important for the Medical Assessor to consider and contrast what was depicted with what she said.
The notes from Ms Clarke’s general practitioner suggest that Ms Clarke played netball in 2022 and confirm that she wanted to increase her hobbies in November 2022 and that she dressed to meet a friend for morning tea on the same day as an appointment in December 2022. They also show that there were times when Ms Clarke found it difficult to interact.
Ms Clarke’s submissions list activities that she has undertaken but sought to stress that she found them challenging or did not enjoy them. The lack of enjoyment is a symptom not an impairment. The fact that she found activities hard or did not enjoy her holidays is not relevant to the assessment. The examples in the PIRS contemplate that a worker may attend activities while remaining quiet and withdrawn. The important fact is that Ms Clarke is participating, even if her motivation is to be involved with her family.
Ms Clarke also sought to characterise the art classes she undertakes as art therapy. We do not consider that her frequent social media posts displaying her work justify that description. Ms Clarke is participating in art classes in a group and in what appears to be a recreational setting. She has posted her artworks on social media and, whether or not they took an extended time, she has finished those she has displayed.
We observe that the social media posts in the investigation report were all made by Ms Clarke and were not posts by others in which she was tagged.
The Medical Assessor was correct to assess Ms Clarke in class 2 for social and recreational activities.

Conclusion

We have not considered the ground of appeal with respect to concentration, persistence and pace in the absence of any submissions explaining why Ms Clarke considers that the Medical Assessor was wrong in his assessment.
For these reasons, we have determined that the MAC issued on 30 April 2024 should be confirmed.

[2024] NSWPICMP 634

6 September 2024