Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd v Sias
[2021] NSWPICMP 142
•5 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd v Sias [2021] NSWPICMP 142 |
| APPELLANT: | Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd |
| RESPONDENT: | Milena Sias |
| APPEAL PANEL: | Member John Wynyard Dr Patrick Morris Dr Douglas Andrews |
| DATE OF DECISION: | 5 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from finding of 22% for psychological injury; Medical Assessor (MA) had previously found no maximum medical improvement; whether deteriorated condition of worker being adequately treated by new psychiatrist; whether sufficient time elapsed for treatment since last MA assessment; possibility of improvement with treatment; Held- new guideline for Maximum Medical Improvement considered; thorough review of case by MA; worker significantly psychologically injured; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 May 2021 Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 28 April 2021.
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,
· 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 30 March 2021 Consent Orders were made referring this matter to the MA, who had previously conducted a MAC in November 2020, and found that maximum medical improvement had not been reached.
Accordingly, on 6 April 2021 an amended referral was referred back to the MA for an assessment of WPI caused by a psychological injury that occurred on a date described in the referral as:
“21 November 2018 (deemed), nature and conditions of the applicant’s employment with the respondent (deemed date of injury 21 November 2018)”.
Ms Sias had been employed as a pizza attendant and waitress with the respondent since 15 May 2005. In 2018 she suffered a psychological injury following a meeting with officers of the Club.
From January 2019 she was under psychiatric care. She suffered a gamut of symptoms and underwent a variety of medication to treat her worsening condition. She was under the care of Dr Ann Stephenson until Dr Stephenson retired some months before the assessment.
Ms Sias also was treated by Dr Zoran Protulipac, a Psychologist who spoke Ms Sias’s language.
The MA assessed a WPI of 22%.
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.
The appellant employer requested that Ms Sias be re-examined by a member of the Appeal Panel. However, for the reasons given below no appellable error was established, and no re-examination was required.
EVIDENCE
Documentary evidence
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
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
Both parties made written submissions which have been considered by the Appeal Panel.
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 sole ground of the appeal was that the MA had erred in his conclusion that Ms Sias’s psychological condition had reached maximum medical improvement.
MAC dated 17 November 2020
In his first MAC of 17 November 2020 the MA explained his decision not to make an assessment. He said:[1]
“I have not made an assessment of whole person impairment as I do not believe she has reached maximum medical improvement from the clinical presentation today. There are quite discordant assessments and diagnoses from the clinicians and IMEs who have seen her previously. Her presentation could either represent a severe presentation of a depression or anxiety, or given the cognitive impairment and thought disorganisation, represent a late-onset Schizophrenia, as suggested by two IMEs.”
[1] Appeal papers page 27.
The MA considered the evidence before him at that time. He noted that the presentation by Ms Sias to him was more severe than that described by Dr Ann Stephenson in her report dated 30 April 2020.
The MA in answer to a question whether maximum medical improvement has been reached said:[2]
“No. From her presentation today she appeared quite unwell and probably cognitively impaired. For a 49-year-old woman the degree of confusion, inconsistency and problems could not be accounted for by age, information technology problems or dementia, and would thus indicate an ongoing clinical condition that cannot be considered to have reached maximum medical improvement.”
[2] Appeal papers page 26.
The MA noted the report of Dr Zoran Protulipac dated 12 December 2019 indicating that Dr Protulipac noted a major depressive disorder but without any psychotic features.
The MA also referred to two reports by Dr Graham Vickery dated 29 January 2019 and 12 May 2020 the latter of which elicited more severe symptoms including psychotic features such as hallucinations. Dr Vickery suggested that Ms Sias was on the “schizophrenia spectrum disorder”. He also referred to the report of Dr McMahon dated 2 October 2019 who thought that based on his testing that Ms Sias was either feigning spectrum disorder or was suffering from schizophrenia. The MA concluded his survey by saying:[3]
“In toto there appears to be marked discrepancies between the doctors regarding Ms Sias, although many have identified inconsistencies and some cognitive difficulties which were much more marked today, possibly exacerbated by the Zoom assessment.”
[3] Appeal papers page 28.
In discussing his findings on mental state examination the MA said that he had to terminate the assessment in the end as he was unable to elicit or explore more extensive aspects of her mental state. He described Ms Sias as sometimes providing quite detailed circumstantial answers with quite a high degree of inconsistency and at other times providing answers that the interpreter said were tangential at best.
The current MAC
Whilst the earlier assessment had been conducted via Zoom, Ms Sias was interviewed in person in a face to face consultation. The MA stated:[4]
Ms Sias was, although still impaired, able to give a more coherent history
than she had done in November 2020. Her history was far more consistent with that in her statement.
[4] Appeal papers page 36.
The MA made the following observations as to Ms Sias’s present symptoms. It is convenient to reproduce the entirety of these findings, which we have divided into paragraphs:[5]
“She reports feeling low, aroused, and frightened. Much of this now concerns what appears to be quite an extensive set of psychotic features which we spent some time trying to elicit today. These are quite confusing and even with the aid of the interpreter, we were not entirely certain we got this correct.
She believes that she has four personalities, one of which exists on her left shoulder, one on her right. These enable her to keep the ‘evil one’ inside her ‘at bay’ and asleep. She said that the personalities talk to each other and keep the evil one asleep because if he wakes up it will be ‘very bad for me’. She links this evil one to the ‘incubus’ that occurs during her episodes of night terrors. This is a not uncommon hypnagogic hallucination amongst people with night terrors, waking feeling the presence of an evil being in the room, often with a crushing sensation which she experienced. As a result she keeps the light and television on all night, again to keep the evil one at bay.
The personalities talk to each other but do not have any commanding aspects to them nor any running commentaries. They did not, for instance, tell her to harm herself or others but appeared to talk to stop the evil one. However, they do not say anything positive to her and appear to be mood congruent. She denied any control or passivity phenomena, although again noted that during her night terrors she is, as is common, ‘frozen’.
She believes that this being exists with a fixed and unshakeable quality, and describes the voices as being hallucinatory rather than pseudo-hallucinations. She finds her mind wandering and tries to do things to keep her calm because otherwise she feels chronically aroused and anxious. She describes going to bed late to prevent these things happening at night and if she does wake in the night, continues to feel the evil presence in her room.
She believes that the ‘evil one’ can make things move around the room, raise the bed in the air and described many supernatural activities which she attributes to this evil presence. As a result she sleeps little at night and also feels chronically tired, fatigued and has little motivation.
Of note she described that the messier her house and less active she is, the more the ‘evil one’ likes this and thus she tries to do little to keep it pleased. She describes poor concentration in many activities, e.g. when driving drifting away such that others beep her.
She ceased going to church which in part she attributes to the evil presence. She describes difficulties focusing, concentrating and with short-term memory problems. She continues to have frequent levels of arousal which at times form panic attacks. She feels ‘fat, ugly’ with no confidence.”
[5] Appeal papers page 37.
In his current MAC, the MA summarised the situation as follows:[6]
“● summary of injuries and diagnoses:
Ms Sias appears to have become unwell with predominantly anxiety symptoms over 2017/2018 in the context of her perceived treatment at work. Since a panic attack at work then she has decompensated into a markedly disabling and apparently treatment-resistant depressive disorder which over the past year or so has developed mood congruent psychotic features. With the elements of thought disorder noted today, this may be a late onset schizophrenia. Supporting this diagnosis was the incidental provision of an MRI ordered by her general practitioner in late 2020 on the basis of some chronic physical symptoms which does not provide any intracranial psychopathological explanation for her condition, e.g. a space occupying lesion or some form of early onset dementia.
She has received extensive psychotherapy, at least three different types of
antidepressants and a long-term treatment with an antipsychotic, over many months at a near-neuroleptic dose. Although she has just commenced with a new psychiatrist, given the chronicity of her condition and how disabled she is, her impairment is unlikely to have a change in her impairment of 3% or more in the next 12 – 18 months.”
SUBMISSIONS
[6] Appeal papers page 39.
Appellant employer
The appellant employer referred to the medical evidence summarised by the MA. In particular it submitted that the psychotic features that were described by the MA had not been noted by any other treating physician. These somewhat concerning symptoms involved auditory and visual hallucinations, and appeared to have surfaced over two years since Ms Sias ceased employment.
The appellant employer noted that the MA had emphasised the protracted duration of psychotherapy, but observed that there was no sign that there had been any significant treatment regarding the management of the auditory and visual hallucinations. The extensive treatment had only been for the depressive and anxiety symptoms suffered by Ms Sias.
The appellant employer submitted that it was not possible in view of the late onset of these most serious symptoms to be confident that maximum medical improvement had in fact been achieved, and the MA had fallen into error in so finding. The MA, it was submitted, had not given due consideration to the presence of the new significant psychotic symptoms about which Ms Sias’s treating physicians were unaware.
The appellant employer’s submission was made on the assumption that the Guides mandated a test which required consideration of whether a person’s medical condition had been stable for the previous three months and was unlikely to change by more than 3% WPI in the ensuing 12 months.
A related submission suggested that if Ms Sias’s psychotic condition were to be further treated, the psychiatric impairment rating given by the MA for the category of “employment” might result in the rating changing from class 5 to class 4, which would result in a reduction of more than 3% WPI.
The respondent worker
The respondent noted that Ms Sias had been interviewed by the MA both via Zoom video link on 13 November 2020, and in person on 21 April 2021. The MA had made a comprehensive diagnosis in a thorough and considered assessment, the matter having been referred back to him by consent.
Ms Sias submitted that the appellant employer did not rely on any further evidence in seeking to have the MAC revoked, and indeed was treating the appeal process as if it were a merit review.
A period of five months had elapsed between the assessments by the MA, the respondent said, and the MA had had the advantage of a face-to-face assessment which, it was submitted, was consistent with his impression of the worker on the Zoom assessment.
The reports referred to by both the appellant employer and the MA from Dr Stephenson and Dr Protulipac were significantly dated, predating the original MAC by at least 12 months, it was submitted. Dr Vickery and Dr McMahon were concerned with the question of injury, which was not relevant when the matter was referred to an MA.
Whilst the appellant employer-based its submissions to some extent on the proposition that the treatment given to Ms Sias was inadequate, that conclusion had not been reached by the MA. The suggestion that there could be a 3% change in the worker’s condition was based on speculation, and should be dismissed.
The MA had exposed his reasoning process, and carefully considered the other opinions before him, including those of the insurer’s experts, the respondent argued, and the appeal should accordingly be dismissed.
DISCUSSION
A misconception appears to have been shared by the parties and the MA relating to the current definition for whether a person has reached maximum medical improvement. The Guides no longer require a consideration of whether an injured worker is likely to have a change in his/her impairment of 3% or more in the next 12-18 months. The new criteria are set out in the Guides at chapter 1.15-1.16 as follows:
“Maximum medical improvement
1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement.
This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation ....”
This error on behalf of the MA we do not regard as being critical, and indeed it has not been raised by the parties. In Ms Sias’s case the timeframe based on the pre-existing criteria adopted by the MA is reasonable in answering the question of whether Ms Sias’s impairment is likely to improve further.
The MA gave thoughtful and considered review of this case. Ms Sias has been unwell for over two years now. She is receiving extensive psychotherapy including at least three different types of antidepressants and long term treatment with an antipsychotic over many months at a neuroleptic dose. The issue of a new psychiatrist is not a factor that would affect Ms Sias’s prognosis. Her condition is chronic and she is significantly disabled. We are of the view that she is unlikely to improve given the opinions of the medical experts in the case.
We reject the submission by the appellant employer that further treatment might improve the degree of WPI. As was submitted, this submission was speculative, and not based on any evidence. The MA considered whether the commencement of treatment with a new psychiatrist was a relevant factor, and he specifically referred to both the degrees of chronicity and of impairment that now afflict Ms Sias. Applying the correct test, the MA has made it clear that he considers that the degree of permanent impairment is unlikely to improve further and is unlikely to change substantially in the next year. We can find no error in the opinion of the MA. Ms Sias has attained maximum medical improvement.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 April 2021 should be confirmed.
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