Collins v Dux Manufacturing Ltd
[2021] NSWPICMP 131
•23 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Collins v Dux Manufacturing Ltd [2021] NSWPICMP 131 |
| APPELLANT: | Shirley Anne Collins |
| RESPONDENT: | Dux Manufacturing Ltd |
| APPEAL PANEL: | Senior Member Glenn Capel Dr Julian Parmegiani Dr Douglas Andrews |
| DATE OF DECISION: | 23 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal on grounds of demonstrable error and incorrect criteria in respect of assessment of a psychological injury; whether the Medical Assessor erred in his assessment of the PIRS categories for Self-Care and Personal Hygiene, and Social functioning, in failing to make an adjustment for the effects of treatment and in failing to give reasons; Vitaz v Westform (NSW) Pty Limited and Ors and Wingfoot Australia Partners Pty Ltd v Kocak discussed and applied; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 April 2020, Shirley Anne Collins (the appellant) 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 10 March 2020. The MA assessed 8% permanent impairment resulting from psychological injury deemed to have happened on 22 August 2017.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.
On 7 May 2020, the appellant’s application to appeal against the decision of the MA was dismissed by a delegate of the Registrar because he was not satisfied that at least one ground of appeal had been made out.
On 11 June 2020, Arbitrator Wright issued a Certificate of Determination (COD), confirming that the appellant had no entitlement to lump sum compensation because she did not reach the threshold for lump sum compensation, as required by s 65A(3) of the Workers Compensation Act 1987 (the1987 Act).
The appellant filed judicial review proceedings in the Supreme Court, and on 2 March 2021, Harrison AsJ quashed the decision of the Registrar and set aside the COD. She ordered that the matter be remitted to the Workers Compensation Commission (now the Personal Injury Commission) (the Commission) according to law.
On 8 June 2021, an Appeal Panel was constituted to determine the matter according to law.
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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury as a result of harassment by a work colleague during the course of her employment with the respondent on 22 August 2017 (deemed). She ceased work in August 2018, did some restricted duties from about February 2019 to April 2019, and her services were terminated on 14 August 2019.
In late 2019, the appellant’s solicitor served a notice of claim on Employers Mutual Ltd (the insurer) claiming lump sum compensation pursuant to s 66 of the 1987 Act.
On 25 November 2019, the insurer issued a notice pursuant to s 78 of the 1998 Act, disputing that it was liable to pay lump sum compensation on the grounds that the degree of the appellant’s permanent impairment did not pass the threshold in s 65A(3) of the 1987 Act.
The appellant filed an Application to Resolve a Dispute (the Application) in the Commission on 16 December 2019. She claimed lump sum compensation in respect of 19% whole person impairment due to a psychological injury sustained on 22 August 2017 (deemed).
On 31 January 2020, the matter was remitted to the Registrar for referral to an Approved Medical Specialist, now a Medical Assessor (MA), for assessment of permanent impairment. On 10 March 2020, Professor Glozier issued his MAC in respect of the permanent impairment caused by the appellant’s psychological injury.
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 submits a re-examination is warranted in order to evaluate the effects of treatment on her level of permanent impairment.
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. The examination by the MA was comprehensive and the Appeal Panel was satisfied that there was sufficient material available to deal with 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.
Appellant’s evidence
The appellant’s evidence is not repeated here in full. The following is a summary of the relevant evidence.
In her statement dated 13 August 2019, the appellant described the circumstances of her injury, her symptoms and treatment. She advised that she had purchased a business that had been conducted by her children and she spent time at the business at the rear of the premises. She stated that she was constantly anxious and felt unsafe, had lost confidence, was forgetful and was easily overwhelmed. She had started to smoke cigarettes, and she drank excessively. She was no longer able to walk her dogs, ride her bicycle or socialise with family and friends. She suffered anxiety attacks and was nervous when driving.
The clinical noes of Dr Roche show that the appellant was still complaining of psychological symptoms at the offer of suitable duties was withdrawn in April 2019. The typed notes do not extend beyond May 2019.
The medical certificates of Dr Roche show that the appellant had no current work capacity from 24 July 2018 until she was cleared to perform some work for 10 hours per week from
18 February 2019, and for 40 hours per week of normal duties, but away from the work colleague, from 4 March 2019. A final certificate for the appellant’s psychological injury was issued on 29 July 2019.Astrid Toscan, psychologist, reported on 28 March 2018. She diagnosed Post-Traumatic Stress Disorder with moderate levels of depression. She indicated that the appellant would be able to return to work at the respondent provided that any reconnection with work colleague was properly managed.
Dr Rastogi reported on 16 August 2019. She recorded a detailed history of the appellant’s injury, symptoms, and treatment. The doctor reported that the appellant needed prompting with shower, missed and skipped meals, had issues with driving due to poor concentration and anxiety, was isolated socially and had lost all friendship, avoided public places and friends, did not take her dog for a walk and had stopped riding her bike, did not connect with her children and grandchildren, had poor concentration and amotivation which impacted on her ability to undertake household tasks, and she was unable to say at home by herself.
Dr Rastogi diagnosed a Major Depressive Disorder with anxiety with post traumatic features as a result of the events at work, and she believed that the appellant continued to have residual anxiety and depression as a consequence of her work injury. She stated that the applicant had no capacity to work, and she felt that the appellant’s future prospects of returning to work were poor. She assessed 19% whole person impairment.
Respondent’s evidence
The respondent’s evidence is not repeated here in full. The following is a summary of the relevant evidence.
Dr Synnott reported on 12 November 2018. He reported that the appellant had no issues with self-care apart from being anxious if alone. She felt vulnerable when socialising and was cautious when travelling. She had a good relationship with family members although her anxiety had an impact. She had difficulty focussing and her memory was patchy. Nevertheless, she was able to manage her money and provide a coherent history.
Dr Synnott diagnosed a Major Depressive Disorder with prominent anxiety, or an Adjustment Disorder with anxiety and depressed mood. He stated that she was psychologically incapable of returning to work at the respondent, but he was satisfied that she had a capacity to work, as demonstrated in her activities in the family business.
In a report dated 12 November 2019, Dr Synnott recorded that the appellant had been looking for work, but there were no available positions in the area other than at the respondent. The doctor reported that the appellant’s psychiatric symptoms were worse than 12 months ago. He noted that the appellant was independent with regard to feeding, dressing, and washing herself; but was too apprehensive to have a shower. She had no social life except at the family run child play group. She went to a school concert on one occasion. She interacted with her partner and children but had arguments because of her irritability. The appellant was still anxious in cars and apprehensive and vigilant about coming into contact with her former work colleague. She had some difficulties with concentration and memory. He noted that the appellant could work for 40 hours per week elsewhere.
Dr Synnott diagnosed a Major Depressive Disorder with prominent anxiety, and he assessed 5% whole person impairment.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
Professor Glozier provided a MAC on 10 March 2020. He recorded a consistent history of the appellant’s injury, the nature of her symptoms and her treatment regime. She returned to work and was reported by her general practitioner as doing well at work before the suitable duties were withdrawn. She had continued to take medication and have psychotherapy. He reported that there were no previous or subsequent psychological issues, apart from a brief episode of “baby blues” after the birth of her second child.
Professor Glozier reported the appellant’s symptoms as follows:
“Present symptoms:
Her pervasive symptoms are of anxiety, fear, distrust and a desire for security and safety. Although dysphoric, this does not have an overly depressive quality and she is not anhedonic. She is very focused on her need for security, preferring people to be with her if at all possible and not putting herself into situations where she might confront ‘the creeper’ or be in places where he might find her. Although she knows rationally that there is an incredibly small chance, even coming to Sydney leaves her feeling at times unsafe, aroused, and hypervigilant as she fears him following her. If she sees triggers, e.g. a silver car or the man, she will have high levels of arousal with marked physical features. She appears to be able to control these from turning into a full-blown panic attack although may decompensate when she gets home as she does not want him to see how she reacts. She is aware of the effect this has on others and her relationship and is trying to overcome this. She said the only place she really feels safe is at the family play centre business, Nini’s, where she can even be on her own because there is a heavy metal gate which she lock, and she is not entirely certain that he knows of the location or that she might be there. She tends to go to bed earlier than she needs to because her partner retires and gets up early, and often lays awake for an hour or so as she is not tired. She does not have nocturnal disturbance but generally wakes around 4am, having achieved approximately six hours of sleep. She is trying to motivate herself and complete tasks within her need for safety and security. She has lost some of her libido although remains intimate with her long-term partner. She finds it difficult to focus when she is over aroused.”
Professor Glozier noted that the appellant lived with her partner and one of their four children. Her partner’s two daughters stayed with them at the weekend. She tried to have someone with her because she fears for her safety. She had continued to do most of the household chores at home, but her partner now did some cooking at the weekends and her son helped. She did the shopping at specific times that avoided any contact with her former work colleague.
Professor Glozier reported that the appellant displayed and reported no significant difficulties with her self-care. She was much more socially isolative as a result of her fears. She went out less frequently than before and only when accompanied. She was highly aroused when she went to a club recently with a friend. She did not ride her bike, and only went out with her partner and family. She now drank up to two bottles of rum per week and she had almost no alcohol-free nights.
Professor Glozier reported that the appellant’s life was focused around the family business where she attended almost every day. She helped at the counter, served coffee and some receipts, and talked to the customers. She found it harder to strike up conversations, even though she felt safe. She liked to go to the centre when it is closed, and she read the newspaper and did some cleaning and minor chores. She was able to drive locally, but she avoided several places due to her phobic anxiety and fears of confronting her work colleague. She was well supported by her partner and children, although she had a more distant relationship with her many siblings and saw less of her friends. She had arguments with her partner because he thought she was having an affair. There was also tension in the household because her partner felt that they should move away and distance themselves from their current situation.
Professor Glozier noted that the appellant read the Sunday papers over two days, used her telephone as before, and still required help for more complex IT tasks. She had not been able to do any gardening due to her shoulder injury and she did not go to the garden at the front of the house or walk her dogs because of her fears. She attended yoga for some time with her daughter although it was unclear whether this continued.
Professor Glozier recorded his findings on examination as follows:
“FINDINGS ON MENTAL STATE EXAMINATION
Ms Collins was well-kempt but had her arm in a sling. She was able to extricate this and use it and said her surgeon who was trying to encourage her to use it more. She was polite, anxious and a high context speaker, focused on many aspects of the ‘creeper’ and how he might continue to affect or harm her, even though she knows that this may be irrational. She was over an hour early because she was worried she might be late. She has an anxious, rather than depressive, dysphoria, is not anhedonic, pushes herself within her limits but at times can have some decreased energy. She has a normal sleep duration and some behaviourally induced mild onset insomnia. There are no nocturnal re-experiencing phenomena now. She has marked levels of phobic avoidance, entrenched safety behaviours, hypervigilance, and hyperarousal but tends to limit the impact of these from turning into a full-blown panic attack. There are no psychotic phenomena. On cognitive testing her attention, registration and five-minute recall were intact. Tests of processing speed and executive function showed that she was almost exactly the population average for her age and educational background. On the latter she made an initial error but immediately corrected herself indicating no objective cognitive impairment. She sees herself as a very different person now, particularly socially.”
Professor Glozier provided a diagnosis as follows:
“Summary of injuries and diagnoses:
Ms Collins reports repeated and prolonged episodes of harassment by a male colleague, including assaultive behaviour. Investigations and the organisational response appear to have been unsatisfactory and she was continually placed in proximity to the aggressor. She developed marked anxiety, phobic and avoidant symptoms. There also appear to have been more marked depressive phenomena initially, according to some of the other IMEs although these were not prominent according to her psychologist. Today she noted that she has feared for her life because of his weird behaviour, obsessiveness and that he has guns. Thus although the incidents may have objectively not met the Criterion A for Posttraumatic Stress Disorder, they may well be perceived as such in her mind. She developed symptoms in most of the symptom domains and thus I think her condition is best described as Posttraumatic Stress Disorder given that she has symptoms in all of the four required domains. This anxiety and fear is far more prominent than any depressive component and currently she does not meet the criteria for a Major Depressive Disorder. She also has prominent panic attacks which would negate the Adjustment Disorder suggested by her treating psychiatrist Dr Bisht. Given the treatment he has been prescribing, he too would appear to perceive her as having a more severe condition, given the use of two antidepressants and an augmenting atypical antipsychotic.
Ms Collins also now consumes over 40 standard drinks a week, despite knowing the dangers associated with this. Although there are no features of dependency that I could elicit, she may well have a Substance Abuse Disorder.Although some of her symptoms have ameliorated and she is able to put in place many strategies, she continues to have high levels of anxious, arousal and phobic symptoms with impairing sequelae. These appear to be somewhat static and there has been no change following the recent psychotropic medication changes.”
The Professor disagreed with three of Dr Synnott’s PIRS category ratings and commented as follows:
“In terms of Self-Care and Personal Hygiene, although in general she is able to manage many of the daily activities of shopping, cooking and cleaning, she reported intermittent motivational problems and that over and above her physical limitations, her husband and son have taken over some of these activities. Her increased regular and potentially harmful alcohol intake is also indicative of a mild impairment in Self-Care. He rated her Social Functioning as a class 2, whereas she appears to do nothing unaccompanied, has stopped all of her solo activities and restricts her social life to brief interactions accompanied by her partner, close friends or within the family which is a moderate impairment. Although he notes that ‘in a good work environment she could work 40 hours a week,’ she reports only doing a few hours of productive activity even in the very supportive environment of the family’s play centre, indicative of a severe rather than mild impairment.”
In respect of the report of Dr Rastogi, the MA advised that he disagreed with two of the doctor’s ratings with regard to Adaptation and Concentration, Persistence and Pace. These categories are not the subject of this appeal.
Professor Glozier assessed 8% whole person impairment based on the following calculations:
| PIRS Category | Class | Reason for decision |
| Self-Care and Personal Hygiene | 2 | Although in general she is able to manage many of the daily activities of shopping, cooking, and cleaning, she reported intermittent motivational problems and that over and above her physical limitations her husband and son have taken over some of these activities. The increased regular and harmful alcohol intake is also indicative of a mild impairment in Self-Care. |
| Social and Recreational Activities | 3 | She appears to do nothing unaccompanied, has stopped her solo activities and restricts her social life to brief interactions accompanied by her partner, close friends or within the family. |
| Travel | 2 | Although she can drive around Moss Vale and take public transport up to Sydney and Campbelltown, she reports a phobic avoidance of certain places in town and not riding due to the footpath going near the assailant’s property. |
| Social Functioning | 2 | She remains well-supported by her family and close friends although has lost contact with many of them and is socially withdrawn. |
| Concentration, Persistence and Pace | 2 | Ms Collins continues to be able to read a newspaper and magazines when she feels safe and showed no objective impairment on testing today or any subjective difficulties concentrating and focusing in the assessment. |
| Employability | 4 | She reports only doing a few hours of productive activity even in the very supportive environment of the family’s play centre. |
Classes in Ascending Order: Median Class
| 2 | 2 | 2 | 2 | 3 | 4 | =2 |
Aggregate Score Impairment: Total %
| 2+ | 2+ | 2+ | 2+ | 3+ | 4 | 15 | =8% |
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
APPELLANT’S SUBMISSIONS
Social Functioning
The appellant’s solicitor, Mr Ferraro, submits that the MA erred when assigning Class 2 category for Social Functioning. On pages 7 and 8 of the MAC, the MA seemed to disagree with Dr Synnott’s rating of Class 2 category for Social Functioning, and he concluded that a moderate impairment rating was warranted. However, the MA still assigned a Class 2 rating for Social Functioning. This was inconsistent and amounts to a demonstrable error, and the MA has not given adequate reasons to reconcile this discrepancy.
Failure to adjust for the effects of treatment
Mr Ferraro submits that the cl 1.32 of the Guidelines allow for an increase in the degree of whole person impairment to take account of the effects of treatment. He submits that the reasons of the MA were consistent with a substantial elimination of the appellant’s permanent impairment
Mr Ferraro submits that the MA recorded details of the treatment provided by Ms Toscan and how the appellant had used cognitive behavioural techniques to manage her symptoms. The MA noted that the although some of the appellant’s symptoms had ameliorated, she continued to have “high levels of anxious, arousal and phobic symptoms with impairing sequelae. The MA also noted in his PIRS rating form that the appellant’s Post-Traumatic Stress Disorder was in partial submission. These comments are inconsistent with the MA’s conclusion that the appellant’s treatment had not resulted in a substantial elimination of permanent impairment. Such a conclusion is at odds with his other findings, giving rise to a demonstrable error. Alternatively, the MA has not provided adequate reasons.
Self-Care and Personal Hygiene
Mr Ferraro submits that the MA applied incorrect criteria in his assessment regarding
Self-Care and Personal Hygiene. The MA recorded a history of problematic and escalating alcohol use, and he raised the possibility of a substance abuse disorder.Mr Ferraro submits that given the history recorded by the MA, the appellant’s alcohol use warranted a class 3 rating. He submits that the descriptor for Class 2 impairment referred to workers being able to look after themselves adequately. The appellant’s escalating alcohol use is at odds with a Class 2 rating for Self-Care and Personal Hygiene.
RESPONDENT’S SUBMISSIONS
The respondent’s solicitor, Ms Angwin, submits that the MAC should be read as a whole and not finely attuned for error[1]. She submits that the appellant has failed to establish that the MAC and assessment provided by the MA contained demonstrable errors or were based on incorrect criteria.
[1] Vitaz v Westform (NSW) Pty Limited and Ors [2010] NSWSC 667 (Vitaz), [35].
Social Functioning
Ms Angwin submits that the MA assessed a Class 2 impairment for Social Functioning, noting that the appellant was “well-supported by her family and close friends although has lost contact with many of them and is socially withdrawn”. This history is consistent with the evidence and with a finding of mild impairment within Class 2. The MA has provided adequate reasons in support of his assessment.
Ms Angwin submits that the comments made by the MA are not inconsistent and have been appropriately considered in other PIRS categories, specifically in respect of Social and Recreational Activities, which the MA classed as Class 3. She submits that cl 11.12 of the Guidelines confirms that the PIRS categories are only examples of categories and are “generic and general in their description”[2].
[2] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, [62].
Ms Angwin submits that the findings of the MA were open to him, based on the available evidence and his clinical judgment, and he provided adequate reasons in support of his opinion, which are not inconsistent with the remainder of the MAC. His comments regarding the other evidence cannot be evidence of an error in respect of his own opinion and assessment, and his assessment discloses no error.
Failure to adjust for the effects of treatment
Ms Angwin submits that there is no evidence that there is substantial or total elimination of the appellant’s impairment due to treatment, nor is there evidence that her impairment would increase if such treatment ceases. If such evidence exists, which is not admitted, the MA did not fall into error by simply not providing an additional assessment of whole person impairment for the effect of treatment.
Ms Angwin submits that it was open to the MA not to provide an additional assessment for treatment effect and that the failure to do so, or failure to provide reasons for not doing so, does not amount to an error.
Self-Care and Personal Hygiene
Ms Angwin submits that the MA explained why he assessed a Class 2 impairment, and this is consistent with a mild impairment. He provided adequate reasons in support of his assessment, which was open to him.
Ms Angwin submits that the MA referred to the appellant’s drinking and took this into account when he assessed a Class 2 impairment. He provided adequate reasons in support of his opinion and did not fall into error.
Ms Angwin submits that the MA has adequately taken into account his clinical examination of the appellant as she presented on the day of assessment, applied his clinical judgement, and had regard to the relevant history and medical evidence before him. His findings were soundly made and were open to him based on his examination and assessment of the appellant. The appeal should be dismissed, and the MAC dated 10 March 2020 should be confirmed.
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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[3]. The Court held that while prima facie the Appeal Panel is confined to the grounds let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard.
[3] [2008] NSWCA 116
Section 327(2) of the 1998 Act was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made.
In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[4], Davies J considered that the words used in s 328(2) of the 1998 Act, namely “the grounds of appeal on which the appeal is made” were intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
[4] [2013] SC 1792.
In Campbelltown City Council v Vegan[5], 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.
[5] [2006] NSWCA 284
In this matter, the matter was remitted by the Supreme Court to be dealt with according to law. The Panel has accordingly conducted a review of the material before it and reached its own conclusion.
The appellant takes issue with the PIRS categories in respect of Social Functioning and
Self-Care and Hygiene. She also submits that the MA failed to adjust his assessment to take into account the effects of treatment.
Social Functioning
According to Table 11.4 of the Guidelines, a Class 2 rating for Social Functioning is characterised as follows:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Dr Synnott recorded the following history regarding the appellant’s social functioning which he considered warranted a Class 2 rating:
“Social Functioning - She loves and cares for her partner, but there are arguments because she could be irritable and avoidant; also, with her children, she can be avoidant and irritable.”
The history recorded by Dr Synnott is consistent with the descriptor in Table 11.4 and explains why the doctor included the appellant within Class 2. The Panel also notes that
Dr Rastogi considered that the appellant only had mild impairment and included her within Class 2.When one examines the history in the body of the MAC, it is clear that the history recorded by the MA is not dissimilar to that of Dr Synnott. Professor Glozier reported that the appellant was well supported by her partner and children. She had arguments with her partner and there was tension regarding their present situation.
In the PIRS Table, the MA described his reasons for a Class 2 rating as follows:
“She remains well-supported by her family and close friends although has lost contact with many of them and is socially withdrawn.”
Both the history in the MAC and the MA’s reasons are consistent with a Class 2 rating for Social Functioning.
The Panel agrees that the MA seemed to take issue with Dr Synnott’s rating of Class 2 for Social Functioning in the body of his MAC. The MA considered that a moderate impairment rating was warranted, which would suggest a rating of Class 3.
However, when one examines the MAC as a whole, it soon becomes apparent that the MA was not challenging the assessment provided by Dr Synnott in respect of Social Functioning. Rather, the MA is disputing Dr Synnott’s assessment in respect of Social and Recreational Activities. It is apparent that the MA inadvertently referred to “Social Functioning” in the body of the MAC when in fact he meant to refer to Social and Recreational Activities.
Dr Synnott included the appellant within Class 2 for Social and Recreational Activities based on the following history:
“Social/Recreational Activities - No social life except at the family run child play group, where she goes most days; she interacts with her partner on weekends (they live together, but he works during the week); in the last two months, went to a school concert on one occasion.”
Professor Glozier included the appellant within Class 3 for Social and Recreational Activities and gave the following reasons:
“She appears to do nothing unaccompanied, has stopped her solo activities and restricts her social life to brief interactions accompanied by her partner, close friends or within the family.”
According to Table 11.2 of the Guidelines, a Class 3 rating for Social and Recreational Activities is characterised as follows:
“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.”
When one considers the history and reasons of the MA regarding Social and Recreational Activities, one can understand why he disagreed with the assessment of Dr Synnott and included the appellant within Class 3 for this PIRS category. The Panel also notes that
Dr Rastogi agreed that the appellant had moderate impairment and included her with Class 3.Therefore, whilst is seems on the face of the MAC, the MA was challenging a Class 2 rating for Social Functioning, this was clarified in the PIRS Table and in the Panel’s opinion, this is consistent with the evidence and does not constitute a demonstrable error, particularly when one considers the descriptor for a Class 3 rating for Social Functioning in Table 11.4 of the Guidelines, which provides:
“Moderate impairment: previously existing relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Panel notes that there is no evidence that would justify the appellant’s inclusion within Class 3 for Social Functioning. Therefore, the Panel is satisfied that the MAC does not contain a demonstrable error with respect to Social Functioning.
Self-Care and Personal Hygiene
Professor Glozier included the appellant within Class 2 for Self-Care and Personal Hygiene. According to Table 11.1 of the Guidelines, a Class 2 rating for Self-Care and Personal Hygiene is characterised as follows:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.”
Dr Synnott recorded that the appellant consumed 1.5 bottles of spirits per week, and he noted the following history regarding the appellant’s self-care and personal hygiene, which he considered warranted a Class 1 rating:
“Self-Care and Personal Hygiene - Psychologically independent with feeding, dressing and washing herself; due to the noise made by her shower, she is too apprehensive to have a shower - so she has baths.”
Dr Rastogi recorded that the appellant drank one bottle of spirits per week, and she noted the following history regarding the appellant’s self-care and personal hygiene, which she considered warranted a Class 2 rating:
“Mild impairment as needs prompting with meals and dressing due to amotivation and poor energy levels, skipping meals constantly and loss of appetite.”
In his MAC, Professor Glozier reported that the appellant did not have any significant difficulties with self-care, she continued to do most of the household chores, and she drank up to two bottles of rum each week. He explained why he included the appellant within Class 2 for Self-Care and Personal Hygiene as follows:
“Although in general she is able to manage many of the daily activities of shopping, cooking, and cleaning, she reported intermittent motivational problems and that over and above her physical limitations her husband and son have taken over some of these activities. The increased regular and harmful alcohol intake is also indicative of a mild impairment in Self-Care.”
Mr Ferraro submits that the appellant’s alcohol use warrants a Class 3 rating for Self-Care and Personal Hygiene. None of the doctors who have provided a whole person impairment assessments have suggested that the appellant falls within such a category. Further, all were told about the appellant’s alcohol consumption of one to two bottles of spirits per week.
According to Table 11.1 of the Guidelines, a Class 3 rating for Self-Care and Personal Hygiene is characterised as follows:
“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.”
When one reviews the appellant’s evidence and the entire medical file, there is no evidence that is consistent with such a descriptor. Dr Synnott, Dr Rastogi, and most importantly,
Professor Glozier, were fully aware of the appellant’s alcohol intake and they would have taken this into account when assessing the appellant. The is no evidence to suggest that the appellant’s alcohol intake has impacted on her self-care and personal hygiene. Accordingly, the Panel is of the view that the appellant’s inclusion within Class 2 of Table 11.1 of the Guidelines discloses no error on the part of the MA.
Failure to adjust for the effects of treatment
Clauses 1.32 of the Guidelines allows for adjustments to take account of the effects of treatment. It provides:
“1.32 Where the effective long-term treatment of an illness or injury results in
apparent substantial or total elimination of the claimant’s permanent
impairment, but the claimant is likely to revert to the original degree of
impairment if this treatment is withdrawn, the assessor may increase the
percentage of WPI by 1%, 2% or 3%. This percentage should be combined
with any other impairment percentage, using the Combined Values Chart.
This paragraph does not apply to the use of analgesics or ant-inflammatory
medication for pain relief.”Clause 11.8 of the Guidelines is also relevant in respect of the assessment of psychiatric and psychological disorders. It provides:
“11.8 Consider the effects of medication, treatment and rehabilitation to date. Is the
condition stable? Is treatment likely to change? Are symptoms likely to
improve? If the injured worker declines treatment, this should not affect the
estimate of permanent impairment. The psychiatrist may make a comment in
the report about the likely effect of treatment or the reasons for refusal of
treatment.”Mr Ferraro submits that the MA has fallen into error by his failure to increase his assessment of impairment to take account of the effects of the appellant’s treatment. He submits that the appellant has used cognitive behavioural techniques to manage her symptoms. He submits that Professor Glozier’s comments regarding the appellant’s condition were inconsistent with his conclusion that the appellant’s treatment had not resulted in a substantial elimination of her permanent impairment. He also submits that the MA failed to give adequate reasons.
Ms Angwin challenges such a submission and submits that there is no evidence of any substantial or total elimination of the appellant’s impairment due to treatment, nor is there evidence that her impairment will increase if such treatment ceases. There is merit in the respondent’s submission.
It is true that the MA diagnosed Post-Traumatic Stress Disorder that was in partial remission, but that does not mean that there has been a substantial or total elimination of the appellant’s permanent impairment.
In Vitaz, the Court of Appeal discussed the obligations of medical assessors to give reasons:
“…An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”[6]
[6] Vitaz, [43].
According to Dr Rastogi, the appellant required ongoing psychological counselling with cognitive behavioural therapy, treatment by her psychiatrist and ongoing pharmacotherapy. This doctor did not suggest that the appellant’s permanent impairment would increase in the absence of such treatment, and she made no adjustment of her assessment in accordance with the Guidelines.
Dr Synnott recorded a history of on-going symptoms and regular attendances on her clinicians for counselling and medication. Like Dr Rastogi, he saw no reason to increase his assessment to take account of the effects of treatment.
Professor Glozier recorded similar details of the appellant’s treatment regime. This included antidepressants Mirtazapine 30 mg and Brexpiprazole 1 mg each night, and Desvenlafaxine 50 mg in the morning. These would have some effect on her psychological condition, but the Guidelines provide that there must be substantial or complete elimination of impairment for an assessor to increase the percentage of whole person impairment.
There was no history of any substantial or total elimination of her symptoms and/or permanent impairment. The MA also observed that Dr Bisht had prescribed two antidepressants and an antipsychotic, which suggested the existence of a more severe condition.
The MA noted that only some of the appellant’s symptoms had ameliorated and observed that she still had “high levels of anxious, arousal and phobic symptoms with impairing sequelae. These appear to be somewhat static and there has been no change following the recent psychotropic medication changes”. Therefore, he has given due thought to Clause 11.8 of the Guidelines.
Professor Glozier had regard to the effects of treatment as commented as follows:
“Although the treatment has resulted in some improvement in her symptoms and impairment, it does not meet the apparent substantial or total elimination criterion in the guidelines.”
The Panel considers that this view is consistent with the evidence of a persistence and increase in the appellant’s overall condition, rather than a substantial or total elimination of symptoms and impairment due to the effects of treatment.
The Guidelines give a MA a discretion to make an adjustment in certain circumstances by the use of the term “may”. Whilst it is true that the MA did not explain in detail why he refrained from adjusting his assessment for the effects of treatment in paragraph 10 of his MAC, the reasons for his decision are readily apparent in paragraph 7. The MA conducted a thorough examination of the appellant and the evidence, and his reasoning is clear and logical when one examines the MAC as a whole, consistent with principles discussed in Wingfoot Australia Partners Pty Ltd v Kocak [7].
[7] [2013] HCA 43.
The Panel notes that there is no evidence that there has been a substantial or complete elimination of permanent impairment in this case and therefore it was not appropriate for the MA to make an adjustment for effects of treatment. Further, neither Dr Synnott nor
Dr Rastogi made an adjustment for effects of treatment. In the circumstances, the Panel considers that there was no error by the MA failing to adjust his assessment due to the effects of treatment.In summary, the Panel agrees with the MA’s PIRS ratings for Social Functioning and Self-Care and Personal Hygiene. There was no challenge to the MA’s assessments regarding the other PIRS categories.
The Panel is satisfied that the MA used his clinical judgment and carried out his assessment of the appellant on the day of his examination in accordance with his skills and training as a SIRA Approved Assessor of Permanent Impairment. Whilst it is true that he misdescribed a PIRS category in the body of his report, this was not replicated in his PIRS Table and it did not affect his overall assessment of whole person impairment.
The Panel is also satisfied that the MA did not fall into error by failing to adjust his assessment due to the effects of treatment. Even if the Panel is wrong and there in fact was a failure on the part of the MA to explain and to adjust his assessment due to the effects of treatment, such a failure would be immaterial to the final outcome.
The Panel notes that the addition of the maximum of 3% whole person impairment for the effects of treatment would only result in an assessment of 11% whole person impairment on the Combined Values Chart in AMA V. Such an assessment would not pass the threshold prescribed in s 65A(3) of the 1987 Act to entitle the appellant to an award of compensation pursuant to s 66 of the 1987 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 March 2020 should be confirmed.
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