Corrigan v Secretary, Department of Customer Service
[2024] NSWPICMP 77
•19 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Corrigan v Secretary, Department of Customer Service [2024] NSWPICMP 77 |
| APPELLANT: | Debra Michelle Corrigan |
| RESPONDENT: | Secretary, Department of Customer Service |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 19 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for primary psychiatric injury; subsequent development of psychotic disorder; matter referred for assessment; worker appealed assessments in the Psychiatric Impairment Rating Scale categories of employability, concentration, persistence and pace and travel; Medical Assessor erred in assessment of employability and concentration, persistence and pace; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 November 2023 Debra Michelle Corrigan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 October 2023.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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.
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).
RELEVANT FACTUAL BACKGROUND
The appellant developed a primary psychological injury in the course of her employment with the Secretary, Department of Customer Services (the respondent).
The appellant commenced proceedings in the Personal Injury Commission (Commission) on 29 May 2023 claiming weekly compensation and medical expenses. On 9 August 2023, Member Karen Garner issued a Certificate of Determination – Consent Orders in which the Application to Resolve a Dispute (ARD) was amended to include a claim for lump sum compensation pursuant to s 66 based on assessment of 24% WPI in relation to a primary psychological injury. Member Garner also ordered:
“2. The Injury Description in the Application to Resolve a Dispute is amended to delete ‘Aggravation of a constitutional vulnerability of schizophrenia’.
3. The respondent accepts liability for the applicant’s persistent depressive disorder
(dysthymia) with persistent major depressive episode. Initially diagnosed with an
adjustment disorder with mixed anxiety and depressed mood.
…
5. The matter be remitted to the President for referral to a Medical Assessor for assessment of the persistent depressive disorder (dysthymia) with persistent major depressive episode, with a date of injury of 19 May 2018 (deemed). Initially diagnosed with an adjustment disorder with mixed anxiety and depressed mood.”
The Medical Assessor examined the appellant on 25 September 2023 through video link. The Medical Assessor assessed 7% WPI as a result of the injury deemed to have occurred on 19 May 2018.
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 Procedural Direction PIC7.
The appellant did not request that she be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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. They are not repeated in full, but have been considered by the Appeal Panel.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) the date of injury is 19 May 2018 (deemed), representing the appellant's last day of active employment with the respondent and any other employer;
(b) the appellant states that she had stopped working in her secondary employment with NSW TAFE Commission by the 6 April 2018 (in fact, by 23 January 2018). The Income Statement issued by NSW TAFE Commission and the financial records filed by the appellant confirm that she was not engaged in any paid employment from 1 July 2018;
(c) the Medical Assessor opined that the appellant's workplace was a significant contributor to the development of persistent depressive disorder. Whilst not of the opinion that schizophrenia is a workplace injury, the Medical Assessor opined that the workplace circumstances in combination with the ‘already established mood and anxiety disorder .... may have contributed to the development of schizophrenia at this time in Ms Corrigan's life’. The Medical Assessor was not of the opinion that the workplace environment was a substantial or predominant determining factor in the development of schizophrenia;
(d) the Medical Assessor assessed the appellant's presentation during the "latter half of 2018" based upon the contemporaneous medical assessments. He refers to a "retrospective assessment of impairment". For this reason, the appellant does not seek further medical assessment from the Appeal Panel;
(e) demonstrable errors - employability. The Medical Assessor accepts that
"Ms Corrigan 's mood and anxiety symptoms pre-date the development of schizophrenia by several years and appear to arise in the context of her work environment. These increased in the period up until ceasing work in May 2018. From late 2018 it became apparent that Ms Corrigan was experiencing psychotic symptoms which were initially viewed as part of the depressive disorder”;(f) the Medical Assessor accepts that Ms Corrigan was unable to return to the workplace on account of her psychological condition from 19 May 2018, eventually being medically terminated in 2019. The decision made by the employer to medically terminate Ms Corrigan was based upon Dr Abeya's Fitness for Work Assessment report dated 14 January 2019;
(g) however, the Medical Assessor assessed a mild impairment of 2 based on
Dr Abeya's Fitness for Work Assessment in December 2018 (report dated
14 January 2019) whereby he believed that Dr Abeya had determined that the appellant was "fit for a graduated return to work in a different work location with a different employer''. This statement does not accurately reflect the opinion of
Dr Abeya in her Fitness for Work assessment report as she qualifies her opinion as follows: "She is therefore not quite ready for a return to full duties but it would be reasonable in the New Year commencing a slow graded return to work.” This recommendation of Dr Abeya was made on a background of declaring the appellant "permanently unfit” for her pre-injury duties and her acknowledgement after a verbal discussion with the appellant’s general practitioner, Dr Fuljahn that "Ms Corrigan was still not well”;(h) the Medical Assessor made earlier reference to a letter from the appellant’s treating general practitioner, Dr Fuljahn to treating psychiatrist, Dr Christopher Wellard dated 13 November 2018: " ... Debra feels very lethargic, sleepy, has no concentration. She has been sleeping for more than 12h daily. She can barely look after herself and her mother has been visiting to help with the dog. She is over-eating again. She feels numb." The Medical Assessor also had access to
Dr Wellard’s certificate on 12 September 2018 whereby he certified Ms Corrigan "unfit to complete any assessments required for her university degree at the present time";(i) the Medical Assessor is clearly in error when he ascribed a class 2 impairment with respect of employability to the appellant. Dr Abeya was clearly not of the opinion at the time of her assessment in December 2018 that Ms Corrigan was "able to work full time but in a different environment from that of the preinjury job", commensurate with a class 2 classification. With respect of the "graduated return to work in a different work location", Dr Abeya's comments were referenced to a future period of time and were thus, prognostic;
(j) there is unanimous contemporaneous opinion provided by the appellant's treating health practitioners that she was totally incapacitated for any type of employment in the latter half of 2018 and early 2019. In fact, during this time period, she was having difficulty looking after herself and required the assistance of her mother to look after her dog. By February 2019, Ms Corrigan's psychological condition was so severe that hospitalisation was being contemplated;
(k) the Medical Assessor failed to reference the medical certificate of Dr Fuljahn dated 27 February 2019 whereby she certifies Ms Corrigan "unfit for any work commitments, including meetings from 27 February 2019 to 7 March 2019";
(l) if Ms Corrigan lacked capacity to look after herself and her dog in the latter half of 2018 (which was accepted by the Medical Assessor) she would not have possessed the capacity to undertake any type of employment. No evidence supports class 2 with respect of employability in the latter half of 2018, rather, the weight of evidence supports class 5 with respect of employability in the latter half of 2018;
(m) concentration, persistence and pace – the Medical Assessor assessed a Mild Impairment of class 2. The Medical Assessor referenced a letter from Dr Wellard, treating psychiatrist, dated 25 October 2018 which refers to "poor memory and concentration". The Medical Assessor further referenced that "general practitioner notes mention problems with concentration." Such findings misstate and grossly understate the available evidence;
(n) the Medical Assessor fails to reference the certificate provided by Dr Wellard dated 12 September 2018 whereby he certified the appellant “unfit to complete any assessments required for her university degree at the present time.” The Medical Assessor earlier made reference to a letter from the appellant’s treating general practitioner, Dr Fuljahn to Dr Wellard dated 13 November 2018 whereby Dr Fuljahn reported: “…Debra feels very lethargic, sleepy, has no concentration. She has been sleeping for more than 12h daily. She can barely look after herself and her mother has been visiting to help with the dog. She is over-eating again. She feels numb." Yet, the Medical Assessor fails to make reference to this evidence in his determination of concentration, persistence and pace. On
21 November 2018, Dr Wellard made the following observation to Dr Fuljahn: "Unfortunately, Debra's mental state has plummeted where she was feeling lethargic, had hypersomnia and persistent poor concentration." The Medical Assessor fails to make reference to this evidence;(o) in the latter half of 2018, Ms Corrigan's treating practitioners were not describing mild impairment with respect of concentration, persistence and pace. No evidence supports class 2 with respect of concentration, persistence and pace in the latter half of 2018. The evidence supports a class 4 impairment, inter alia, in that Ms Corrigan required regular assistance from her mother (as accepted by the Medical Assessor earlier in his report);
(p) travel – the Medical Assessor assessed a mild impairment of class 2. The Medical Assessor based his assessment upon his belief that "at the time following the workplace injury in 2018, Ms Corrigan appears to have been able to travel independently in her local area, is attending appointments, sometimes going to university";
(q) the aforesaid finding is not consistent with the available evidence which clearly indicates that at the time following the workplace injury in 2018, the appellant was accompanied to her appointments by her mother, was not attending university (as outlined supra), and was at times, unable to travel away from her own residence at all;
(r) there is no evidence available supporting the appellant’s ability to "travel independently in her local area" during the relevant time period. The evidence does not support class 2 with respect of travel in the latter half of 2018. The weight of evidence supports a class 3 impairment;
(s) effects of treatment - in the latter half of 2018, it is established in the available contemporaneous evidence that the appellant was taking significant medication to reduce her psychological symptomatology. The affect upon her level of impairment if the treatment was withdrawn was not considered by the Medical Assessor, and
(t) for all the aforesaid reasons, the Medical Assessor erred and the Medical Assessment Certificate contains demonstrable errors which have had a significant impact upon the appellant's percentage of permanent impairment.
The respondent‘s submissions include the following:
(a) the financial records attached to the ARD cover the period only up to
30 June 2020. The respondent concedes that those records do not evidence any income from paid employment;(b) there are no financial records in evidence for the period from 1 July 2020 to date. Further, the absence of paid employment does not necessarily translate to a finding of total incapacity for work;
(c) the respondent does not dispute that the Medical Assessor expressed the opinion that the workplace was a significant contributor to the development of the accepted workplace injury of a persistent depressive disorder;
(d) employability - it was open to the Medical Assessor to assess the appellant as falling within class 2 for employability. The appellant’s submissions relate primarily to the Medical Assessor’s interpretation of a report from Dr Abeya dated 14 January 2019. On that occasion, the appellant provided a detailed account of her university studies, including a recent enrolment in summer school. Dr Abeya had previously examined the appellant on 25 November 2016. At the time of her examination, Dr Abeya considered the appellant to be permanently unfit to work with her previous managers in Gosford, recommending that she be permanently redeployed to Newcastle. She recommended that the appellant continue to perform her normal duties for four days per week, before upgrading to five days per week within two months. The only permanent restriction being that she not return to her previous location. Furthermore, Dr Abeya considered the appellant fit for secondary employment, indeed encouraging her to do so;
(e) at the time of her examination in December 2018, Dr Abeya confirmed that there had been a reduction in the appellant’s preoccupation with workplace events since she last saw her in September 2018. Her overall level of anxiety was somewhat reduced. At the time of her assessment, Dr Abeya considered the most appropriate diagnosis to be an adjustment disorder with anxiety and depressive symptoms (noting that the depressive symptoms are to a large degree in remission) with the condition now chronic in nature. Dr Abeya goes on to say that from an employment perspective, the appellant would now be able to engage in tasks more consistently, albeit not at her premorbid level. Whilst she was not ‘quite ready’ for a return to full duties, a slow graded return to work in the new year was recommended. She did not seek that there would be any significant barriers to her capacity to take on any task within her skillset. Rather, barriers would be about her location and employers. Due to the issues that gave rise to her claim, Dr Abeya considered the appellant unfit to return to her
pre- injury role, however she expressed an extremely optimistic view regarding her capacity to return to a new location performing the same type of work;(f) the respondent does not accept the appellant’s submission that Dr Abeya’s recommendations are prognostic. Rather, they reflect Dr Abeya’s opinion regarding the appellant’s capacity for work at the time of the assessment in December 2018;
(g) the rating of class 2 for employability made by the Medical Assessor ought to be confirmed;
(h) concentration, persistence and pace - a review of the significant volume of medical evidence attached to the ARD and Reply confirms that the severity of the appellant’s symptoms fluctuated widely in the period leading up to the end of the 2018 year. Indeed, those fluctuations are noted in some detail in the report from Dr Abeya dated 14 January 2019;
(i) it was open to the Medical Assessor to assess the appellant as falling within class 2 for concentration, persistence and pace and that this classification ought not be disturbed;
(j) travel - the evidence referenced by the appellant sheds little light on the appellant’s activities with respect to travel at the time she ceased work in
May 2018. From paragraph 234 of her statement, the appellant references her attendance at multiple medical appointments, including an appointment in Sydney with Dr Abeya on 7 September 2018;(k) it was open to the Medical Assessor to assess the appellant as falling within class 2 for travel and that this classification ought not be disturbed;
(l) treatment effect - the appellant has provided no particulars regarding what medication the appellant was taking to reduce her psychological symptomology (flowing from the workplace injury) or how this treatment was effective in reducing or eliminating her symptoms, nor has the appellant pointed to any evidence to the effect that the appellant was likely to revert if treatment were withdrawn;
(m) no allowance has been made for treatment effect by Dr Canaris (the appellant’s qualified psychiatrist);
(n) the respondent submits that this ground of appeal ought to be dismissed, and
(o) conclusion – the Medical Assessor has acknowledged the complexity of the matter, observing that the appellant’s current impairment due to her mental health arises from a combination of the accepted workplace injury (a persistent depressive disorder) and the subsequently developed mental disorder (chronic schizophrenia). The Medical Assessor has given adequate reasons to account for the basis upon which he has assessed the appellant in respect of each category, including employability, travel and concentration, persistence and pace. Those reasons and the classification made ought not be disturbed. The assessment of 7% WPI ought to 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.
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.
Section 327(2) 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 [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
Psychiatric impairment rating scales categories
The appellant alleged error in respect of the assessment of the psychiatric impairment rating scales (PIRS) categories of employability, travel, and concentration, persistence and pace.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the AMS unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor is required to interview the worker and provide his assessment of whole person impairment (WPI) and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Employability
The appellant submits that the weight of evidence supports a class 5 with respect of employability in the latter half of 2018. The appellant noted that the Medical Assessor assessed a mild impairment of class 2 and based his finding on Dr Abeya's Fitness for Work Assessment in December 2018 (report dated 14 January 2019).
The appellant submitted that the Medical Assessor is clearly in error when he ascribed a class 2 impairment with respect of employability as Dr Abeya was clearly not of the opinion at the time of her assessment in December 2018 that the appellant was "able to work full time but in a different environment from that of the preinjury job", commensurate with a class 2 classification. The appellant argued that with respect of the "graduated return to work in a different work location", Dr Abeya's comments were referenced to a future period of time and were thus, prognostic.
The examples under Table 11.6 for “employability” in the Guidelines are:
“Class 2: Mild impairment: able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: cannot work at all.”
The Medical Assessor assessed the appellant as class 2 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - class 2.
The fitness for work assessment by Dr Abeya in December 2018 finds that Ms Corrigan is fit for a graduated return to work in a different work location with a different employer.
Now, Ms Corrigan has persistent and considerable psychological symptoms including low motivation and energy, low mood, poor self-care, impaired concentration and memory and daytime sleepiness all of which would impair her ability to carry out any work…”
The Medical Assessor at pages 3-4 of the MAC wrote:
“Details of any previous or subsequent accidents, injuries or condition:
At the time Ms Corrigan stopped work in 2018 she had a constellation of anxiety and mood related symptoms. Similar symptoms had been present for several years and attributed to the work environment, though in early 2018 these became particularly intense. During 2018 a diagnosis of adjustment disorder with mixed anxiety and depressed mood was made. During 2019 it became apparent that Ms Corrigan had been experiencing auditory hallucinations of a derogatory and persecutory nature for some time and the diagnosis was changed to major
depressive disorder with psychosis by her psychiatrist at the time, Dr Welland.
A change in diagnosis to schizophrenia with comorbid depression was made by new
psychiatrist Dr Burton in December 2019.
Admission to Warners Bay Hospital in 2020 for the purpose of commencing clozapine was successful. This medication has been significantly more effective than previous medication with resolution of some psychotic symptoms, though with limited effect on negative and cognitive symptoms and with adverse metabolic effects.
The diagnosis of chronic schizophrenia with comorbid persistent depressive disorder has been sustained since late 2019.”
At page 6 of the Certificate, the Medical Assessor wrote:
“Ms Corrigan’s mood and anxiety symptoms pre-date the development of schizophrenia by several years and appear to arise in the context of her work environment. These increased in the period up until ceasing work in May 2018. From late 2018 it became apparent that Ms Corrigan was experiencing psychotic symptoms which were initially viewed as part of the depressive disorder. At the end of 2019 it had become clear, as per the assessment of Dr Burton referred to below, that in addition to the established depressive disorder Ms Corrigan had developed the separate disorder of schizophrenia. I am not of the opinion that schizophrenia is a workplace injury.
To clarify the proportion of current whole person impairment which is attributable to the workplace injury, I believe calculating a whole person impairment score around the time Ms Corrigan ceased work, and before her diagnosis of schizophrenia was made, is necessary. In the PIRS form I have described impairment following the workplace injury and before the diagnosis of schizophrenia, while also commenting on
Ms Corrigan’s current impairment to provide context and, hopefully, clarity.”Dr Chris Wellard, treating psychiatrist, in a report dated 25 October 2018, noted that the appellant had a history of depression and her symptoms were characterised by low mood, anhedonia, poor energy, poor concentration and memory, sleep disturbance and increased appetite with 50kg weight gain. He noted that her depression was in the context of workplace issues which have not been resolved. He wrote:
“Debra has been on multiple psychotropic medications including Cymbalta, Lexapro in combination with Seroquel, Efexor, AJlegron, Efexor plus Zyprexa and Efexor plus Latuda. Unfortunately these medications were only minimally effective or she did not tolerate them due to side effects.
Debra has persistent poor energy and poor concentration and feels deactivated during the day, hence this application to trial a stimulant.
MSE:
Debra was a young woman, overweight, pleasant and dysphoric. Her mood was ‘terrible’, there was no formal thought disorder, no psychosis and no suicidal or homicidal ideation. She was orientated, insightful and hopeful towards the future.”
Dr Wellard, in a report dated 7 March 2019, agreed that the appellant was permanently unfit to return to her role but only with her direct employer, Department of Fair Trading Gosford/Newcastle and not NSW government as a whole. He agreed that she was fit for a graduated return to work at a different work location with a different employer, and that she could now commence the rehabilitation process in relation to this. He wrote: “I would like to make mention, that Debra Is undergoing some investigations over the next week or two and if these investigations are normal, I expect her to be fit for a graduated return to work in the next fortnight”.
In a report to ascertain fitness for work dated 14 January 2019 following an assessment on
7 December 2018, Dr Himalee Abeya, consultant psychiatrist, referred to an earlier assessment on 6 September 2018 when she found the appellant temporarily unfit for a return to a substantive work location. Dr Abeya wrote:“Ms Corrigan spoke about her university studies stating she had previously deferred university exams and said they had been very supportive. As a result she said she had not been stressed about this. She has then restarted and said she had exams coming up in two weeks which included criminal law contracts and torts. Again she noted she was not worried in this relation as she knew if she failed there was means of reprieve due to her recognised disability. If she passes these exams she said she has two more years of study left. Ms Corrigan said she had enrolled into a summer school experience and was very much looking forward to this. She said it was to be over two weeks and she would have two days each week of activities. She said one day was to be "law on the beach and said it was like a walk in service where people with legal issues would attend and they would assist in dealing with this. She said the second day would be at the university office where some pro bono work was taken on.
37.Dr Abeya considered that the appellant’s overall levels of anxiety were somewhat reduced from the last assessment, although the appellant told her that this change has been over a week or so after the recent change in medication. Dr Abeya wrote:
“The impact her work situation has had on Ms Corrigan's health has been quite significant and long lasting. She has always impressed as an intelligent young woman and I note that her actual work capacity has never been questioned. The issue has clearly been with her mental state and preoccupation with her allegations related to bullying and harassment which appear to have affected her functioning significantly at work. As stated previously, it would appear that there has been a change in her overall level of anxiety and preoccupation to a good degree. Overall I believe her condition is best classed as an adjustment disorder with anxiety and depressive symptoms (noting that the depressive symptoms are to a large degree now in remission) with the condition now chronic in nature. It would appear that time away from work has assisted in reducing her level of anxiety and preoccupation to a degree. There appears to have been some benefit from medication too. Given the benefit seen I believe her condition may further improve, yet this is far less likely if she were to return to her previous place of work, given her past responses to her work environment. Whilst there has been some benefit with time away from work and intense treatment with her psychiatrist and psychologist, clearly her recovery is not complete.
From an employment perspective what needs to be considered is her immediate ability to attend to tasks regularly and consistently and her capacity to safely return to her previous work environment. Given the overall improvement in her anxiety levels whilst she is likely to now be able to engage in tasks more consistently, I note that this is not yet up to her premorbid level and her disordered sleep is a likely reflection of her incomplete recovery.
She is therefore not quite ready for a return to full duties but it would be reasonable in the New Year commencing a slow graded return to work. Yet what needs to be defined is the actual location and type of work. In terms of type of work I do not see that there would be significant psychiatric barriers to her capacity to take on any task that is pursuant to her skills and experience. The barrier would be about her work location and employers. Whilst there has indeed been a degree of recovery and Ms Corrigan herself is keen to retry going back to the same place of work, from a medical point of view I have serious reservations that this is likely to leave her considerably vulnerable to an exacerbation of her anxiety symptoms. Whilst there has been some recovery it appears somewhat tenuous and it is important to consider that this has been whilst she is away from work.
Having taken into account all available evidence, including my three assessments, I am of the opinion that Ms Corrigan would need to be considered unfit for a safe return to her previous place of employment. By this I mean to her employment with NSW Fair Trading at Newcastle and Gosford Offices. … She would therefore need to be considered permanently unfit for this role. I do note that Ms Corrigan is a highly skilled young woman and if she has the opportunity for a fresh start in a new place of work she is likely to excel in what she does. Therefore if a workplace rehabilitation option to consider a different department would be an ideal outcome for Ms Corrigan.
I note I discussed my recommendations and the likely outcomes with her general practitioner, Dr Fuljahn. She informed me of her longer term view that Ms Corrigan should move to a different employer owing to her degree of distress and 'obsession' with the current situation. She further informed me that Ms Corrigan was still not well. She said this has been the view of both her psychologist and psychiatrist too…
Recommendation - Ms Corrigan is considered permanently unfit for her substantive role with her employer. I am of the view that she is fit for a graduated return to work at a different work location with a different employer. She could now commence rehabilitation processes in this relation.”
Dr David Burton, treating psychiatrist, in a report dated 3 December 2019 noted that the appellant was studying law at the University of Newcastle but planned to transfer to a less demanding course such as teaching next year. Dr Burton made a diagnosis of a primary psychotic disorder with comorbid depression. He noted that she had experienced persistent auditory hallucination for the last two years despite trials of various anti-psychotics. He wrote:
“Accompanying the onset and development of the auditory hallucinations there has been a deteriorating cognitive dysfunction with particular deficits in working memory, planning and organisation. This is more common in primary psychotic disorders.”
Dr Ben Teoh, consultant psychiatrist, in a report dated 10 November 2020 noted: “She has not been able to be employed since May, 2018. She has a total incapacity to work. She has persistent depressive symptoms, requiring intensive psychiatric treatment”. He expressed the opinion that the appellant had experienced significant psychiatric symptoms prior to the performance and promotion issues in 2016.
Dr Christopher Canaris, consultant psychiatrist, in a report dated 31 January 2022, assessed the appellant as class 5 for employability. He provided the following reasons:
“In her current condition, she cannot see herself in the workforce. She has thought of volunteering, but her psychologist and psychiatrist feel she is not ready for this yet. I noted in this context her social withdrawal, poor concentration, and her lack of motivation.”
Dr Renata Fuljahn, general practitioner, in a referral to Dr Wellard dated 13 November 2018, noted that:
“For the last 8 days, Debra feels very lethargic, sleepy has no concentration. She has been sleeping more than 12 h daily. She can barely look after herself and her mother had been visiting to help with the dog. She is overeating again. She feels numb...”
The clinical notes and records of Bonnells Bay Surgery contain the following entries:
(a) on 28 July 2018, Dr Fuljahn noted that the appellant had been off work for six weeks. She wrote: “medically unfit to work until 30/10 as per Dr Hall”;
(b) on 6 August 2018, Dr Fuljahn noted: “pt still receiving emails from work – not appropriate as pt not well enough to deal with it”;
(c) on 22 August 2018, Dr Fuljahn noted: “Feeling a lot better”;
(d) on 31 August 2018, Dr Fuljahn noted: “sleeping well – uninterrupted… Better concentration during the day with UNI commitments…still employed but unfit to work”;
(e) on 14 September 2018, Dr Fuljahn noted: “medically unfit for 3 months …sleeping much better concentration still a problem”;
(f) on 29 October 2018, Dr Migie Lee noted: “Mum and patient has noticed hypermania, poorer concentration, tremor, occasional sweats, assoc headaches”;
(g) on 13 November 2018, Dr Fuljahn noted: “pt unfit for work until December 18…last 7 days no meds feels very sleepy unable to concentrate, fatigue, lethargic, sleeping for more than 12 hr/day no concentration not emotional difficulty doing the housework overeating feels numb and frustrated ..still living by herself mum visits often”;
(h) on 10 December 2018, Dr Lee noted: “on Ritalin doing much better – normalised energy levels, no longer feeling flat and tired. O/E looks much more alert and engaged”;
(i) on 11 January 2019, Dr Fuljahn noted: “slightly better less preoccupied with work but still unfit to return will likely be medically retired from work then will likely receive rehabilitation to be able to find another job”, and
(j) on 20 February 2019, Dr Fuljahn noted: “for 10 months can hear voices …has a app trying to track neighbours noises has contact police regarding the voices and possible neighbour involvement the voices was saying to her ‘you are doing it all wrong’ when she was doing exams – passes all exams. Discussed possibility of admission to private hospital.”
Dr Fuljahn, in a medical certificate dated 27 February 2019, certified the appellant as “unfit” for any work commitments, including meetings from 27 February 2019 to 7 March 2019. This medical certificate was issued on the same day that Dr Daniel Modesto, psychiatric registrar in the Hunter New England Health District, reported that there had been a referral from the police. In his report dated 27 February 2019, Dr Modesto noted that the appellant had sent a report about a computer being hacked. He noted that there was a long history of workplace bullying and that about 10 months ago the appellant had insomnia and auditory hallucinations. He noted that these symptoms preceded the commencement of Ritalin which the appellant stated had greatly improved her depression and scores at Uni. Dr Modesto under “Impression” wrote: “Psychotic disorder -? primary”.
The Appeal Panel accept that the Medical Assessor filed to provide adequate reasons for rating the appellant as class 2 for employability, when the evidence between 2018 and early 2019 disclosed that the appellant had been certified as having no capacity for work. Further, the Medical Assessor did not take into account the fact that both Dr Abeya and Dr Wellard expressed the view that she was fit for a graduated return to work at a different work location with a different employer and could commence a rehabilitation process in relation to a return to work. The Appeal Panel considered that the Medical Assessor’s reasoning process for rating the appellant as class 2 for employability was unable to be made out. The failure to provide adequate reasons for rating Ms Corrigan as class 3 for employability was an error.
The Appeal Panel reviewed the evidence and concluded that the appellant’s symptoms varied considerably during this period. However, although she was not at work and certified as having no work capacity, both Dr Abeya and Dr Wellard considered that she was fit for a graduated return to work which indicated that she had some work capacity in late 2018 and early 2019. Dr Abeya was of the view that the appellant’s condition had improved and noted that she was doing university studies and planned to attend summer school. The actual return to work appeared to be stymied by the development of a drug induced psychosis in early 2019. Taking into account the variable side effects of the medication prescribed and the erratic nature of her condition, the Appeal Panel considered that a rating of class 4 was appropriate as the appellant at that time would have been unable to work more than one or two days at a time and less than 20 hours a fortnight, her attendance would be erratic and pace reduced.
Concentration, persistence and pace
The appellant submits that the Medical Assessor misstated and understated the available evidence in respect of concentration, persistence and pace. The appellant submits that in the latter half of 2018, Ms Corrigan's treating practitioners were not describing mild impairment with respect of concentration, persistence and pace and the evidence supports a class 4 impairment, inter alia, in that Ms Corrigan required regular assistance from her mother.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4: Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.”
The Medical Assessor assessed class 2 in relation to concentration, persistence and pace noting:
"Dr Wellard’s letter of 25th October 2018 describes problems with poor memory and concentration. He describes these symptoms as part of a depressive illness which has arisen due to the workplace circumstances. General practitioner notes mention problems with concentration. Now, Ms Corrigan struggles to read documents of any length and for her university studies has these converted to audio as she attends better in this way. She is able to watch television programmes, though not movies, and finds it difficult to concentrate if there are subtitles. She estimates that it takes her four hours of study time to make the same progress that it would take one hour of time for another student due to her concentration difficulties.”
Under “Present symptoms”, the Medical Assessor wrote:
“Ms Corrigan describes persistent difficulties with her concentration. She remains enrolled in a law degree course at university though is unable to focus on written text for more than a few lines. She manages this by converting written text to audio as she finds it easier to focus on auditory stimuli. She is unable to read for pleasure and will tend to watch short videos on YouTube for information rather than read text. She is unable to concentrate on a movie though is able to watch some television programmes such as on Netflix.”
Under “Social Activities/ADL” the Medical Assessor noted:
“Ms Corrigan is enrolled in a law degree course at university and attends classes in person two days per week. She spends time most days studying at home. She estimated that it will take her four hours of study to achieve the same results that it would take a person in good health to do one hour of work. She has not been passing any papers though recognises that participation in the University course and achieving as well as she can is a significant accomplishment given her health problems.”
On mental health examination, the Medical Assessor noted:
“The assessment today was by telehealth and so mental state examination necessarily constrained. Initially Ms Corrigan’s mother, Marie, was present to provide support though after a few minutes she withdrew to allow Ms Corrigan to be fully open in the interview. Ms Corrigan showed reasonable self-care and managed the interview situation well. She gave a good history and communicated clearly. Her affect was rather reduced in range. She described feeling anxious in anticipation of the interview and objectively her mood was moderately depressed with increased anxiety. She denied suicidal ideation and was future focused and hopeful. Her thought form was normal. There were no abnormal beliefs in the form of delusions or overvalued ideas, and no abnormal perceptions at time of interview. There were no passivity phenomena such as thought insertion, withdrawal, or broadcast. Ms
Corrigan was fully alert and orientated at interview. She described chronic problems with concentration and memory and referred to some written lists during our meeting to assist her with the interview. I did not carry a formal cognitive assessment at this assessment. Ms Corrigan appeared to have a reasonably good understanding of her mental health needs.”
The medical certificate from Dr Wellard dated 12 September 2018 certified the appellant as unfit to complete any assessments required for her university degree “at the present time".
In a report dated 25 October 2018, Dr Wellard noted that the appellant had a history of depression and “persistent poor energy and poor concentration and feels deactivated during the day, hence this application to trial a stimulant”.
In a report dated 21 November 2018, Dr Wellard noted: “Unfortunately, Debra's mental state has plummeted where she was feeling lethargic, had hypersomnia and persistent poor concentration".
As noted above Dr Fuljahn, in a referral to Dr Wellard dated 13 November 2018, noted that “For the last 8 days, Debra feels very lethargic, sleepy has no concentration. She has been sleeping more that 12h daily. She can barely look after herself and her mother had been visiting to help with the dog. She is overeating again. She feels numb...”
Dr Ben Teoh, consultant psychiatrist, in a report dated 10 November 2020 noted that the appellant had poor concentration and reported paranoid ideation and auditory hallucination. Conversely he wrote: “Her cognitive functions were intact; there was no evidence of short or long term memory impairment.”
Dr Christopher Canaris, consultant psychiatrist, in a report dated 31 January 2022, assessed the appellant as class 3 for concentration, persistence and pace. He provided the following reasons:
“Her mood is generally low, and she is often anxious. She sleeps ‘on and off' with
‘sleeping too much and struggling to sleep’. She has just been through a sleep study but does not know the results.”
And:
“She spends the most part of her day ‘in bed watching TV or Netflix but then I watch stuff and I didn't remember what I saw so I watch it again’. She had been studying law but had to give it up because she could not read more than two or three lines at a time.”
The Appeal Panel accept that the Medical Assessor failed to provide adequate reasons for rating the appellant as class 2 for concentration, persistence and pace, when the evidence between mid 2018 and early 2019 disclosed that the appellant had periods of time when her concentration was severely impaired and she was unable to study. The Appeal Panel accepted that the appellant had other times during that period where her condition had improved and she was able to attend to her studies. The Appeal Panel considered that the Medical Assessor’s reasoning process for rating the appellant as class 2 for concentration, persistence and pace was unable to be made out. The failure to provide adequate reasons for rating the appellant as class 2 for concentration, persistence and pace was an error.
The Appeal Panel reviewed the evidence and concluded that the appellant’s symptoms and impairment varied considerably during this period. The appellant was doing some university studies in law and Dr Abeya noted that she intended to attend the summer school. It did appear from the medical reports and clinical records that the appellant’s condition and ability to focus and concentrate had improved by late 2018. However, taking into account the erratic nature of the appellant’s symptoms, the Appeal Panel considered that the appellant had a moderate impairment in this scale and rated her as class 3 for concentration, persistence and pace.
Travel
The appellant submits that the finding by the Medical Assessor that “at the time following the workplace injury in 2018, Ms Corrigan appears to have been able to travel independently in her local area, is attending appointments, sometimes going to university” is not consistent with the available evidence. The appellant argued that the evidence clearly indicates that at the time following the workplace injury in 2018, Ms Corrigan was accompanied to her appointments by her mother, was not attending university, and was at times, unable to travel away from her own residence at all.
The appellant submits that the Medical Assessor had erred in the assessment by placing the appellant in a class 2 and that the weight of the evidence supported class 3 impairment.
The examples under Table 11.3 for “Travel” in the Guidelines are:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3 Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment”.
The Medical Assessor assessed class 2 in relation to travel noting:
“At the time following the workplace injury in 2018, Ms Corrigan appears to have been able to travel independently in her local area, is attending appointments, sometimes going to university. Ms Corrigan no longer drives, and her car is currently for sale by her mother. She is able to walk in her local area with her dogs. When travelling by car she is driven by her mother or one of her support workers. She occasionally will travel to visit one of her siblings along with her mother either in Sydney or annually to Townsville. Ms Corrigan’s concentration and anxiety is a barrier to independent travel.”
In her statement from paragraph 234 on, the appellant stated that she attended multiple medical appointments, including an appointment in Sydney with Dr Abeya on
7 December 2018. It appears that between 23 May 2018 and 7 December 2018, the appellant attended 16 medical appointments and she only mentioned her mother in one of those appointments, that is, the appointment on 31 August 2018.In a letter dated 6 February 2019, Dr Wellard states:
“It is very difficult for me to continue seeing Debra under these circumstances where she cancels an appointment, but then rings with complaints the day after. There is also marked relationship issues with her mother to the extent where I am unable to see Debra with her mother here, as it turns into a verbal slanging match in my room.”
Ms Callie Buller, psychologist, in a letter dated 3 December 2018, states: “…our appointments have ended up quite spaced out mainly due to her difficulty getting out of the house most days.”
In the clinical notes and records of Bonnells Bay Surgery, on 8 August 2018 Dr Fuljahn noted "mother present'' and on 31 August 2018 she noted that the appellant’s mother "agrees with me" indicating that the appellant's mother was present during the appointment. Further, on 29 October 2018, Dr Lee noted that the appellant was "brought in by mum". However, it appears that apart from these three entries there were no further reference to the appellant being bought in “by Mum” or being accompanied by her mother.
Dr Abeya, in a report dated 14 January 2019 noted that the appellant had enrolled in a summer school experience and was “very much looking forward to this”. Dr Abeya wrote:
“She said it was to be over two weeks and she would have two days each week of activities. She said one day was to “e "law on the beach and said it was like a walk in service where people with legal issues would attend and they would assist in dealing with this. She said the second day would be at the university office where some pro bono work was taken on.”
Dr Abeya made no reference to the appellant being accompanied by her mother or a support person when she attended the assessment whereas Dr Abeya did note in her earlier report dated 25 November 2016 that the appellant had her mother present as a support person.
Dr Christopher Canaris, consultant psychiatrist, in a report dated 31 January 2022, assessed the appellant as class 2 for travel. He provided the following reasons:
“She rarely leaves the house except to go to appointments or shopping. Her treating clinicians are encouraging her to go out on her own for example by taking her dogs for a walk. However, she manages only limited local journeys on her own.”
The appellant argued that the evidence clearly indicates that at the time following the workplace injury in 2018, the appellant was accompanied to her appointments by her mother, was not attending university, and was at times, unable to travel away from her own residence at all and that the weight of the evidence supported class 3 impairment.
The relationship issues with her mother referred to by Dr Wellard are not relevant to assessment in the rating scale for travel, although he suggests she was able to be seen without her mother present.
While there may have been short periods when the appellant was unable to leave her house, for example, following changes to her medication, there were clearly other periods when she was able to leave her house on her own and even travel to Sydney to attend an appointment with Dr Abeya on 7 December 2018.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considers that it was open to the Medical Assessor on the evidence to make an assessment of class 2 for travel considering the evidence available and the history taken during the assessment by the Medical Assessor.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the rating in the PIRS categories of travel and the assessment in this class was not made on the basis of incorrect criteria. The categorisation of class 2 for travel is not glaringly improbable; the Medical Assessor is not unaware of significant factual matters, there is no clear misunderstanding by the Medical Assessor and his reasoning process is sufficiently clear.
Effects of treatment
The appellant submits that in the latter half of 2018, the available contemporaneous evidence established that the appellant was taking significant medication to reduce her psychological symptomatology. The appellant argued that the affect upon her level of impairment if the treatment was withdrawn was not considered by the Medical Assessor.
The Guidelines at 1.32 provide:
“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 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 anti-inflammatory medication for pain relief.”
The Appeal Panel noted that no allowance has been made for treatment effect by Dr Canaris in his assessment of the appellant.
In circumstances where Dr Canaris had not made an allowance for the effects of treatment, the Appeal Panel did not consider that the Medical Assessor had to specifically address the affect upon her level of impairment if the treatment was withdrawn.
In any event, the Appeal Panel concluded that the medication taken by the appellant did not result in an apparent substantial or total elimination of the appellant’s permanent impairment. Indeed the treatment provided had significant impairing side effects and triggered a psychotic state.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the Medical Assessor not considering the effects of treatment in making his assessment of impairment.
Summary
The Appeal Panel was satisfied that there was a demonstrable error in the MAC in relation to the ratings in the PIRS categories of concentration, persistence and pace and employability. The Appeal Panel found no error in the rating for travel.
The Appeal Panel has found that the PIRS scales score 332 234, ascending order 22 333 4 median 3, aggregate 17 so that the final WPI = 19%.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3789/23 |
Applicant: | Debra Michelle Corrigan |
Respondent: | Department of Customer Service |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Alan Doris and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric | 19 May 2018 | Chapter 11 pages 54-60 | 19% | 0 | 19% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0
5
0