Collar v Stride Mental Health Limited t/as Aftercare
[2023] NSWPICMP 611
•24 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Collar v Stride Mental Health Limited t/as Aftercare [2023] NSWPICMP 611 |
APPELLANT: | Colleen Collar |
RESPONDENT: | Stride Mental Health Limited t/as Aftercare |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 24 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant alleged error in the assessment in respect of one of the categories under the psychiatric impairment rating scale (PIRS) namely self-care and personal hygiene; Medical Assessor’s reasons inadequate including history taken; Appeal Panel considered a re-examination was necessary; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 May 2023 the worker Ms Colleen Collar (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 May 2023.
The appellant 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 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 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, 4th ed
1 March 2021 (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.
The appellant requested that she be re-examined. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.
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.
Further medical examination
Professor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 20 October 2023 and reported to the Appeal Panel.
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. They are not repeated in full, but 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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 29/07/2022 (deemed)
· Body parts/systems referred: psychological
· Method of assessment: WPI”
The Medical Assessor issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. psychological
29/7/23
11
11
9
9
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
9
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
Name
Collar
Claim reference number (if known)
DOB
Xxxx
Age at time of injury
Date of Injury
1. 29/07/2022 (deemed)
Occupation at time of injury
Support Worker
Date of Assessment
27/4/23
Marital Status before injury
Single
Psychiatric diagnoses
1.Major Depressive Disorder
2.
3.
4.
Psychiatric treatment
Psychology in the past, psychotropic medication
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Some reduction in personal ADLs
Son does most of cooking
Social and recreational activities
3
Has withdrawn from social and recreational activities
Maintains some activities with family.
Travel
2
Is able to drive independently to familiar areas
Social functioning
2
Maintains good relationships with some family and friends
Concentration, persistence and pace
2
Subjectively impaired concentration
Is able to do puzzles and crochet
Employability
5
Is unable to work, in receipt of DSP
Score
Median Class
2
2
2
2
3
5
2
Aggregate Score Impairment
Total
%
+
+
+
+
+
16
9
The Medical Assessor made no deduction under s 323 in respect of a pre-existing condition or abnormality.
The worker appealed.
In summary, the appellant complained on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and made demonstrable errors as follows:
(a) by assessing a Class 2 impairment for Self-care and Personal hygiene when he should have assessed a Class 3 impairment as the appellant is clearly on the evidence unable to live independently of her son.
In summary, the employer Stride Mental Health Limited t/as Aftercare (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The reasons for making assessments in each category must be adequately explained.
The Medical Assessor recorded a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Colleen is a 61 year old woman who lives in Perth with her 26 year old son who is a student.
She worked for Aftercare for around 6 years. Her last day of work was 21/10/16. She described bullying, harassment and victimisation in the workplace from around November 2015. She reports a change in structure of her workplace where she was also expected to support mental health clients as well as disability clients. The team leader Janice was rude, dismissive and unsupportive.
· Present treatment: She is not engaged in psychological therapy. She is prescribed venlafaxine 300mg and quetiapine 100mg by her GP. She sees her GP fortnightly.
· Present symptoms: ongoing low mood, sleep difficulties, feelings of worthlessness, irritability, social withdrawal, anxiety, avoidance. She reports intermittent suicidal ideation with no plan.
· Details of any previous or subsequent accidents, injuries or condition: Diagnosed with PTSD in relation to sexual assault age 10. She sought help for this around the age of 30 and attended psychology for a short period. She reported no functional deficits from her trauma. She continued to work fulltime and function well.
· General health: past thyroidectomy on thyroxine, hypertension on antihypertensives, hypercholesterolaemia on medication.
· Work history including previous work history if relevant: She reports that she has worked in the disability sector of over 30 years. She has qualification in disability care from Melbourne Institute of Technology. She worked for Sunnyfield disability service for 27 years then the MS Society as manager of care for 4 years prior to joining Aftercare.
· Social activities/ADL: reduction in ADLs. Reduction in social activities. Unable to work – in receipt of the DSP. She spends most of her time at home. She is able to independently go to the shops 1-2 times a week ‘straight in and out’. She has a niece in Perth age 52 who she sees approximately once a fortnight visiting each others houses. She has 2 close friends in Sydney who she has known for many years. She has regular phone contact with both. She said that she previously had a bigger network of friends who she has lost since the injury. She enjoys puzzles and crochet. She struggles to read. Her son does most of the cooking and cleaning. She showers approximately every second day. She attends to her garden most days for around 30 minutes. She is not currently in an intimate relationship. She has not been in a relationship for 15 years. She was with her son’s father for 16 years.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Appeared stated age. Flat affect. Nil abnormal psychomotor activity. Depressed and anxious mood. Oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. Nil formal thought disorder. Nil delusions or hallucinations. No thoughts of harm to others.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
Major Depressive Disorder
· consistency of presentation
no obvious inconsistencies”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessments of self-care and personal hygiene at Class 2 is the subject of complaint on appeal.
The Medical Assessor made no deduction under s 323 and this is not the subject of complaint on appeal.
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“Dr Cassimatis 8/9/22 WPI 7%
Dr Grama 20/7/22 WPI 22%
Dr Smith 18/4/18 WPI 20%
Dr Wotton 6/7/18 WPI 22%
Dr Wotton 25/3/19 WPI 8%”
The Medical Assessor is required to reach his own independent opinion but he must explain his reasons adequately. The appellant submits that the Medical Assessor failed to do so and his assessment of Class 2 for Self Care and Personal Hygiene is not supported by reference to the other evidence before the Medical Assessor. In determining whether the path of reasoning is adequate the MAC must be read as a whole. However, the Medical Assessor has failed to record a sufficient history and his reasons for assessment are brief without any attempt to explain where his assessment differs from the other experts whose opinions were in evidence before him. The Appeal Panel in these circumstances considered a re-examination was necessary.
Professor Nicholas Glozier, a member of the Appeal Panel was appointed to conduct the re-examination. He conducted the examination on 20 October 2023 and reported to the Appeal Panel as follows:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W7410/22 |
Appellant: | Colleen Collar |
Respondent: | Stride Mental Health Ltd t/as Aftercare |
Date of Determination: | 20 October 2023 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 20 October 2023 – via MS Teams platform (there were no technical difficulties) |
1. The worker’s medical history, where it differs from previous records
Ms Collar confirmed prior significant psychiatric difficulties resulting from abuse and traumatic events in her childhood and later at the hands of one of her partners, which appear to have continued to trouble her to this day, given her recent experiences. She also noted that many years ago she used to have panic attacks and was drinking more heavily ‘in my 20s and 30s.’ She had a partial gastrectomy approximately five years ago when she reached her maximum weight of 110kg. She currently takes Thyroxine 150ug mane, Noten 15mg daily, Esomeprazole 20mg OD, Cardia OD, Atorvastatin 20mg OD, Venlafaxine 300mg OD and Quetiapine 100mg nocte. She takes complementary medicines including Maltofer, Vitamin D3 and Centrum. She smokes 2 or 3 cigarettes a day but vapes extensively using a 6000-use vape in a week and a half. She no longer drinks alcohol and does not use any illicit drugs.
She has now been living in Perth for 15 months with her son Zac. She said that Perth was ‘home’, she had been living away for 40 years and felt she needed to go back to Perth, not having many friends where she was in Windsor and not open to making new friendships. Although she had two brothers and a sister there, she had little contact with them (one of them has intellectual disability). However she was in much closer contact with her niece who lived in one of the southern suburbs of Perth and so moved to Rockingham to be close to her and her children, with whom she has a good relationship. Since being in Perth she has had only infrequent contact with her brother and sister, although up until a few weeks ago when she became destabilised following a medication reduction, she had started to visit her sister and brother on an approximately weekly basis.
She said that some time ago she announced that she was going to move to Perth to her son when he left home. He then suggested that he go with her. Since arriving in Perth he then did a course as a childcare worker and has been working at a childcare centre for two months now.
She had bilateral knee replacements sometime just before moving to Perth. There have been no more medical interventions since moving to Perth.
2. Additional history since the original Medical Assessment Certificate was performed
She has only just sought further treatment for her psychological problems. Her GP initially tried to decrease her nocte Quetiapine to 75mg. This led to a destabilisation of her sleep with the re-emergence of nightmares. She said these were predominantly nightmares from her childhood and early adult traumatic experiences, although could at times be of what happened seven years ago. This destabilised her mood, led to daytime anergia and she became temporarily more impaired and symptomatic. She went back on 100mg Quetiapine about 10 days ago and her sleep has nearly returned to normal, alongside gaining the losses she made temporarily.
Functioning
She said the days are all pretty similar with no regular changes. She did go to her grand-niece’s guitar ensemble at school yesterday but said her niece picked her up and took her to that. Zac, her son, is quite isolative and keeps himself to himself, either working or being in his room on his computer much of the time, with little social life and little interest in this. When she wakes around 7am or 7:30am she feels ‘quite good’ and will see Zac before he goes to work. Because of her partial gastrectomy she has very small and limited meals. She will have a breakfast shake and then a bar for lunch. She will at times cook meals for herself if Zac has not got home, e.g. making steak or chicken in the air fryer, but if Zac comes home earlier he will cook. They tend to be responsible for their own parts of the home, looking after themselves, cleaning up after themselves. She, for instance, does the dishes and looks after all of her own clothes and self-care. She said that when she goes out she does not put on make-up but always tries to ‘look good for the day,’ showering regularly and getting dressed for the day rather than spending the day in bedclothes, even if she is not going out, which she does rarely. They do the large shop every two weeks together and during the week she will go over to the local shops to pick up any small items that she has been missing. They have a similar pattern at the weekend. Throughout the day she spends much of it crafting: sewing, crocheting and – up until her recent destabilisation – was making ‘little Santas’ for Christmas for her grand-nieces and nephews and has only just started getting back into these following the temporary destabilisation. She will go to the local craft shop by herself if necessary. She watches quite a lot of TV and has just finished the sixth season of The Good Doctor. However she relates that she enjoys little and sees much of this as ‘passing the time’, although conversely when talking about these, her affect did change to an even more positive and enthused affect. She is now 92kg which has been an increase since her lowest post-gastrectomy. She says she does not eat junk food and limits her snacks but will have occasionally ‘naughty food.’ She does h no exercise or activity but has not done so for many decades although used to do these in her 20s and 30s. She says she always has an excuse why she should not do exercise. However she does little else socially, beyond seeing her close family and has not made any new friends apparently in the locale since arriving, has not joined any craft groups or other social activities. Neither has she engaged in any more vocational activities, e.g. volunteering, courses etc. Her GP has just referred her to a psychiatrist for review.
3. Findings on clinical examination
Ms Collar was well-kempt and fully-dressed, despite it being 6:30am in Perth. She was jovial, friendly, laughing from the beginning and almost giggly at times. However her affect changed right at the end when I asked her about her thoughts about herself, and when she recalled the re-emergence of her traumatic incidents when her sleep medication was reduced and she became slightly tearful. As such she appeared to have a full and reactive affect. Day-to-day her moods are ‘level’ although she has reduced enjoyment. She at times has struggles with energy and may lay down with her e-reader in the afternoon and occasionally nap. She has a range of negative cognitions about herself, particularly being lazy and the change in how she is, and feels as though she is just ‘waiting for the end.’ She has not had panics for some decades now but has a significant degree of avoidance, loss of trust and withdrawal. There are no psychotic phenomena. She was a focused, detailed historian, showing no overt cognitive difficulties throughout the assessment and remained fully engaged and a pleasure to assess.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Ms Collar currently would meet the diagnostic criteria for a Persistent Depressive Disorder with generally level moods but reduced enjoyment, energy and a range of negative cognitions about herself. Given the history and the re-emergence of significant early traumatic events recently when her medication was reduced, as well as the current level of cognitions, she certainly has a significant pre-existing psychiatric history. Probably the most parsimonious diagnosis for her is of a Complex Post-Traumatic Stress Disorder underpinning much of her life. Although both IMEs for both the insurer and the appellant made a Section 323 deduction, the Medical Assessor did not and this has not been appealed and so cannot be re-assessed.
The appeal centres around self-care. The history elicited indicates significant personal care, being able to manage her diet, prepare meals, manage her day-to-day care around the home and regularly making herself presentable for the day and washing, as well as being able to shop locally for herself. All of this is completely concordant with the class 2 self-care and personal hygiene rated by the Medical Assessor. There is no evidence that she has required her son to move with her, but rather he has chosen to do so, in part due to his own personal circumstances, and that he does not provide significant care for her that she would otherwise be unable to do.
Signed: Professor Nicholas Glozier
Date: 20 October 2023”
The Appeal Panel adopts the findings and the report of Professor Glozier. On this basis, the Appeal Panel confirms the assessment of the Medical Assessor of Class 2 for Self-Care and Personal Hygiene.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 March 2023 should be confirmed.
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