Cullen Steel Fabrications (NSW) Pty Ltd v Mansfield; Mansfield v Cullen Steel Fabrications (NSW) Pty Ltd
[2024] NSWPICMP 530
•1 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cullen Steel Fabrications (NSW) Pty Ltd v Mansfield; Mansfield v Cullen Steel Fabrications (NSW) Pty Ltd [2024] NSWPICMP 530 |
| APPELLANT: | Cullen Steel Fabrications (NSW) Pty Ltd |
| RESPONDENT: | Troy Mansfield |
| APPELLANT: | Troy Mansfield |
| RESPONDENT: | Cullen Steel Fabrications (NSW) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 1 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against various psychiatric impairment rating scale (PIRS) categories filed by both parties; Medical Appeal Panel confirmed the Medical Assessor’s (MA) assessments in all categories; MA made an adjustment for the effects of treatment; Held – MA erred in making an adjustment for the effects of treatment; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
The employer’s appeal: M1-W644/24
On 8 April 2024 Cullen Steel Fabrications (NSW) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
11 March 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)
· the assessment was made on the basis of incorrect criteria, and
· 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).
The worker’s appeal: M2-W644/24
On 6 May 2024 Troy Mansfield lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 March 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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).
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.
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 because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The employer’s appeal
In summary, the appellant submits that the Medical Assessor erred in his assessments with respect to three categories in the psychiatric impairment rating scale (PIRS) namely Travel, Social Functioning, and Concentration, persistence and pace (cpp), and in making an adjustment for the effects of treatment contrary to the Guidelines.
In reply, the respondent submits that no errors were made in the assessments but also agrees that the Medical Assessor erred in making an adjustment for the effects of treatment.
The worker’s appeal
In summary, the appellant submits that the Medical Assessor erred in his assessments with respect to two categories in the PIRS namely Self-care and personal hygiene and social and recreational activities.
The appellant however concedes that the Medical Assessor erred in adding 1% for treatment effects without adequate explanation.
In reply, the respondent submits that no errors were made.
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.
For the purposes of both appeals, we now set out details of the MAC issued by Medical Assessor Yu-Tang Shen on 11 March 2024.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of 10 December 2020.
The Medical Assessor obtained the following history:
“He said that he experienced derogatory harassment by the owner, being told he was useless and had no clue, which commenced early in 2019 and persisted.
He said he had onset of psychological symptoms in the first half of 2019. When he left the company, his psychological symptoms included not wanting to go to work, recoiling when he saw the owner, and avoiding the owner. He said at the time, he was feeling depressed, he was more socially withdrawn, and he had insomnia sleeping 4-5 hours, and his appetite may have changed, and his motivation was reduced, and his concentration was reasonable as he had to focus on his work, but he required more effort to sustain his focus.
He said he has been feeling pessimistic occasionally. He had suicidal ideations, such as ‘tying a knot’, with no plans. He was having panic attacks, which occurred multiple times a week, which would in turn make him more withdrawn. He has been worrying about negative evaluation from others, leading to avoidance of social interactions.
He has seen two psychologists, seeing his first psychologist for two years before his psychologist moved, and he has been seeing his current psychologist for the past year. He has found it helpful stopping him from doing something ‘stupid’.
He has been seeing his psychiatrist for two years, for oversight of his treatment. He has not been on any medications, as he refuses to take any medications on account of his past experiences of previous medications. He has tried and not tolerated Valdoxan.”
Present treatment was noted as:
“He has been seeing his psychologist every 2-3 weeks. He has been seeing his psychiatrist every three months. He has been seeing his general practitioner once a month. He is not on any medications now. There are no planned changes to his treatment.”
Present symptoms were noted as follows:
“He has been feeling depressed often. He said he has been able to enjoy going down the coast to some degree, but less than before. He has been sleeping about four hours at night. He said that his appetite has been generally ok, though some days he doesn’t care to eat, and he has made a conscious effort to avoid junk food, and he finds food sometimes taste bland. His energy remains low. He has been walking regularly every night. He has been feeling pessimistic often. He said he cannot care if he didn’t wake up, though he denied any suicidal plans.
He said he has been having panic attacks, occurring a couple of times a week, which leads him to feeling more exhausted. He has been worrying about negative evaluation from others. He has ongoing social anxiety and avoidance. He avoids going to the gym as he feels other people are staring and judging him.”
When asked to provide “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor said:
“He said he has been on medications towards the end of his marriage in 2009. He said he had been diagnosed with Bipolar Disorder, with highs lasting days to a week when people could tell he was different to his usual self and he felt disinhibited such as driving fast and not caring if he was pulled for speeding and didn’t care what he spent his money on; and other times he would have symptoms of depression, and he had been on Epilim 100mg bd and Cymbalta, and he didn’t think the medication stabilised his mood, and it made him more emotional and he put on about 30kg and he was malodorous. He said the symptoms of this occurred during his marriage, due to the stress of the marriage, and he was on the medications for two years prior to the marriage ending, and he continued it for three years after it ended. He said it was diagnosed by his general practitioner, and he had seen a psychologist. He said that after he finalised the separation with his ex-wife, he came out with a large tax debt and had no money left to his name, which was very stressful, and contributed to further emotional disturbances. He said he ceased the medications, while away down the coast. He said after he moved on with his life with obtaining mainstream employment, he had no further major mood disturbances.
Prior to the subject injury, he would drink a glass of wine most meals. He said he now drinks every day, and he consumed 4-5 bottles of wine a week, without any significant negative consequences, and he has been drinking more to get the same effect, and he has had withdrawal symptoms when he has breaks from drinking, with diaphoresis, with cravings. He said he uses alcohol use as an escape, and he has been trying to reduce his consumption.
He denied any substance use. He denied any forensic history.
He finished Year 12. He has not undertaken any formal studies, but he has informally learned how to read engineer and architectural details to be a draughtsman.”
As regards Mr Mansfield’s activities of daily living, the Medical Assessor said:
“He lives with his 19-year-old son. He has two older daughters. He currently doesn’t have a partner, and his last relationship was with Angela and lasted 2-3 years from before the subject injury and ended in April 2021.
He said his previous relationship started around the same time he was at Cullen Steel, and it was going ok and they had travelled overseas together. He said after the subject injury, he said his relationship was affected as a result of the subject injury and leading to conflict in the relationship and separation.
He said his relationship with his son has been “really good”. His relationship with his two daughters has been strained for a long time since his divorce with his wife in December 2009.
He said he has about three friends, and he said he is in contact with his friends every couple of weeks. His friends live down the coast about 2 hours away and he sees them once a month on average, and go water-ski occasionally, and he has attended a football game when they visited him last year, with encouragement from his friends. Prior to the subject injury, he would see them on weekends, and they would water-ski frequently.
He had travelled overseas in October 2023 for three weeks with his friends, to South-East Asia, and he said he was supported by his friends, who organised it for him, and supported him through it. He said he was able to enjoy that.
He said he grows orchids, and he cooks a bit, which he has always enjoyed. He walks once a day. He said prior to the subject injury, he would cycle and bush-walk and other water sports regularly down the coast.
He said he showers himself every day, and he said he sometimes has to push himself, but he doesn’t require assistance or reminders. He said he shaves himself every couple of weeks when he needs to make himself presentable, whereas prior to the subject injury he would shave every day. He said he has been cooking daily, and he has always cooked. He said he has been cleaning the house and doing his laundry regularly. He said he has been shopping regularly once a week, though he struggles being around people when he goes.
He has been driving regularly, to the shops and to his appointments. He has been able to drive down the coast by himself, which is not an issue for him, though he struggles driving in the city, due to anxiety with high traffic areas.
He said he has been struggling with his concentration, and he has to re-read a recipe multiple times and he has to read an instruction manual multiple times, and he can sustain his focus less than five minutes. He has also bought a model aircraft to try to assemble and he was not able to follow instructions and felt overwhelmed. He said prior to the subject injury, he had no issues with his concentration, and he would be able to compile plans for steel fabrication and buildings and computer control machinery, and he could sustain his concentration for 10-12 hours in a day.
He said he has not been working or studying, and he has not returned to work since the subject injury, as he feels useless. He said he would be apprehensive and scared to return to work. He said prior the subject injury, he was the general manager for the company, managing the factory, including being involved in logistics, personnel, ordering steel and paint and organising it together. He was working five days a week, 12 hours a day.”
Findings on mental state examination were reported as follows:
“He presented as a smartly dressed and reasonably groomed middle-aged man. He had an average build and appeared to be his stated age. He engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail. He told me he was feeling anxious and depressed. He displayed some emotional reactivity and appearing dysphoric and irritable at times during the interview. He spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody. He had frequent pessimistic thoughts of himself, and fantasies of not being around, but he has no suicidal ideations. He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.”
The Medical Assessor summarised the injury as:
“Persistent depressive disorder, due to the chronicity of his depressive symptoms.
Panic Disorder, due to the recurrent panic attacks, leading to a state of impairment afterwards.
Social anxiety disorder, due to his fears of negative evaluation and associated avoidance of social interactions.
Alcohol Use Disorder, due to his excessive alcohol use, with associated tolerance, withdrawal and cravings.”
The Medical Assessor assessed 17% WPI from which he deducted 10% in respect of the pre-existing condition, then added 1% for the effects of treatment leaving a total WPI of 16%.
He then set out a detailed summary of the evidence before him to which we will refer in due course.
We will now consider the submissions by both parties in respect of each of the categories both parties have appealed.
The categories
Travel
The Medical Assessor assessed a Class 2 rating and said:
“He has been driving regularly, to the shops and to his appointments. He has been able to drive down the coast by himself, which is not an issue for him, though he struggles driving in the city, due to anxiety with high traffic areas. As he has been able to drive to familiar places alone, but with significant anxiety in high-traffic areas, he has mild impairment.”
The descriptor for a Class 2 reads: “Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
For a Class 1 it reads: “No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
The employer submits as follows:
(a) the Medical Assessor took the following history in relation to travel: “He has been driving regularly, to the shops and to his appointments. He has been able to drive down the coast by himself, which is not an issue for him, though he struggles driving in the city, due to anxiety with high traffic areas”;
(b) this was based on the workers lengthy experience of frequently visiting the south coast over many years. In other words, the travel is in a very familiar area;
(c) the appellant acknowledges that the respondent struggles driving in the city but says that this is not a sufficient basis to assess him in a class 2;
(d) the Medical Assessor also noted that the respondent travelled overseas in October 2023 for three weeks to South-East Asia. This demonstrates his ability to travel to new environment well outside ‘only familiar areas’, consistent with a class 1 assessment, and
(e) the respondent’s reported functioning reveals no deficit, or at worst, a minor deficit in terms of travel, consistent with a class 1 assessment.
The worker submits as follows:
(a) the Medical Assessor has recorded the workers ability to travel to the south coast “which is not an issue for him” based on the workers lengthy experience of frequently visiting the south coast over many years. In other words the travel is in a very familiar area;
(b) the Medical Assessor correctly noted that the worker’s ability to travel overseas was only in the company of three friends acting as support persons, and
(c) the assessment is consistent with the assessments made by Drs Chew and Khan and does not disclose any error.
Discussion
The Medical Assessor made reference to several statements prepared by the worker, noting:
“Since leaving the company, he has kept himself busy going down the coast with his sons, spending time with his girlfriend and tending to his garden.
He avoids leaving his house and only leaves to attend appointments with significant anxiety and only driving to familiar areas.”
The Medical Assessor also summarised various reports and clinical notes he had. Relevant to this category, he said:
“Psychologist, John McQuillen on 30 January 2023: On 19 June 2023, he feels panicked around people and was anxious when he went to the city to see Vivid with friends.
Dr Thomas O’Neill, psychologist, dated 22 May 2023: He is able to go to the shops independently and prefers to go in the middle of the day when there are fewer people. He has visited his friends on the South Coast…
Dr Abdal Khan, psychiatrist, dated 12 July 2023: His travel was mildly impaired as he travels to most familiar places on his own, although he struggles with anxiety, panic and avoidance of crowds.
Dr Gerald Chew, psychiatrist, dated 1 September 2023: He had mild impairment of travel as he was able to travel to familiar places alone without a support person.”
Although not bound by the opinions of other doctors, the Medical Assessor’s assessment is consistent with that of the other two IME’s, and other medical practitioners referred to above.
In August 2023, Mr McQuillen, the treating psychologist said:
“He reported attempting to go to the boat show with friends and struggled with the people, the noise, described it as chaotic. He reported he just wanted space and stated he finds it overwhelming if he doesn’t have space. He also reported difficulty standing in a queue.”
The evidence points to increased symptoms of anxiety when travelling in certain situations, that is outside of the normal variation in the general population, and a level of avoidance regarding travel. As the Medical Assessor stated, he suffered from a panic disorder which led to “a state of impairment afterwards.”
In our view, the Medical Assessor’s assessment was consistent with all the evidence, and we see no error with respect to this category.
Social functioning
The Medical Assessor assessed a Class 3 rating and said:
“He said he had a relationship which started around the same time he was at Cullen Steel, and it was going ok and they had travelled overseas together. He said after the subject injury, he said his relationship was affected as a result of the subject injury and leading to conflict in the relationship and separation.
He said his relationship with his son has been “really good”. His relationship with his two daughters has been strained for a long time since his divorce with his wife in December 2009.
He said he has about three friends, and he said he is in contact with his friends every couple of weeks. His friends live down the coast about 2 hours away and he sees them once a month on average, and go water-ski occasionally, and he has attended a football game when they visited him last year, with encouragement from his friends. Prior to the subject injury, he would see them on weekends, and they would water-ski frequently.
He has lost a relationship only recently formed around the time of the subject injury, and has been in less frequent contact with his friends, but maintains a good relationship with his son and still has regular contact with his friends, he has moderate impairment.”
The descriptor for a Class 3 rating reads: “Class 3: Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
For a Class 2 it reads: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The employer submits as follows:
(a) the Medical Assessor took a history that the worker had a ‘really good’ relationship with his son. He also recorded that the worker had three friends and was in contact with them every couple of weeks. He saw them once a month. This history is inconsistent with a class 3 assessment;
(b) consultation notes from Dr Robert Ng dated 5 February 2020 note the following: “seeing someone for a yr but she is taking a secondment in UK for a yr - she is going away in May. He cannot go with her. He went away on holiday. Back at work”;
(c) further consultation notes from Dr Robert Ng dated 5 May 2021 note the following: “broke up with girlfriend about 5 wks ago”;
(d) the history provided to the Medical Assessor that the worker’s relationship broke down in the context of the subject injury inconsistent with the contemporaneous records, and
(e) the history taken by the Medical Assessor supports a class 2 assessment.
The worker submits:
(a) the Medical Assessor has demonstrated his understanding of the requirement to apply table 11.4 in referring to the worker’s previous relationship which ended as a result of the subject injury, and
(b) the assessment is consistent with the assessments made by Drs Chew and Khan and does not disclose any error.
Discussion
The Medical Assessor noted:
“He said his previous relationship started around the same time he was at Cullen Steel, and it was going ok and they had travelled overseas together. He said after the subject injury, he said his relationship was affected as a result of the subject injury and leading to conflict in the relationship and separation.”
The psychologist Ian Davidson noted that on 10 August 2021, “he was binge drinking on two bottles of wine and was struggling with the Covid-19 restrictions impacting negatively on his mental health and struggling with living with his parents.”
The psychologist, John McQuillen noted that:
“On 13 March 2023, his son had moved to live with his mother because of how the claimant’s mental state affected him and so feels alone. On 19 June 2023, he feels panicked around people and was anxious when he went to the city to see Vivid with friends.”
In a note to Dr Ng dated 3 July 2023, Mr McQuillen said:
“I am trying to engage Troy in some values based work as a structure for shaping behaviour as he has reported being quite lost in relation to goals and the return to work process. The one obvious problem to be confronted is his loneliness but then the contradictory behaviour that lacks any meaningful attempt to establish connection with others. I am hoping if this can be resolved it might open a path to recovery as the loneliness and disconnection is certainly a maintaining factor.”
This observation demonstrates to us the long-term impact of Mr Mansfield’s injury on his social functioning.
Dr James Oldham, psychiatrist commented that he had: “intrusive thoughts, avoidance of social opportunities and people, negative changes in thoughts and mood including irritability, anger and other changes in arousal and reactivity…”
Dr Thomas O’Neill, psychologist, in May 2023 said:
“He is currently single and experienced a loss of relationship in 2021, which he found quite distressing.
He has two adult daughters and he has had a breakdown in his relationship with his daughters for a number of years and said his ex-wife ingrained in them that he was a difficult person. He has tried without success to reconnect with them. He was very close with his 18 year old son, who was living with him until recently, as his son was finding it difficult to be around his father and his mental distress.”
The Medical Assessor also referred to “the letter addressed to Angela, undated” and said: “There were references to a breakdown in a relationship and this was after an accumulation of alleged bullying at his workplace for the past two years”.
His relationship broke up in May 2021, and he then lived with his parents which he found so strained, that he had to move out.
Dr Khan noted: “His social functioning was moderately impaired as his previous relationship of three years ended six months after the subject injury, due to the fragile mental state he was in.” He also rated a Class 3.
Dr Chew said: “He had moderate impairment in social relationship functioning, as his previous relationship ended because of the subject injury.” He too assessed a Class 3.
The totality of the evidence in our view clearly supports a Class 3 rating in this category, and we see no error in the Medical Assessor’s assessment.
Concentration, persistence and pace
The Medical Assessor assessed a Class 3 rating and said:
“He said he has been struggling with his concentration, and he has to re-read a recipe multiple times and he has to read an instruction manual multiple times, and he can sustain his focus less than five minutes. He has also bought a model aircraft to try to assemble and he was not able to follow instructions and felt overwhelmed.
He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.
He has complained of difficulties with his concentration and having to re-read recipes and struggling interpreting manuals, but not to the extent that it would be overtly observable during a brief conversation, so he has moderate impairment.”
The descriptor for a Class 3 reads:
“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.”
For a Class 2 it reads:
“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.”
The employer submits as follows:
(a) the Guidelines provide at 1.6: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”;
(b) the Medical Assessor reported that the worker “appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.” This supports that the worker is able to focus on intellectually demanding tasks for periods of up to 30 minutes, consistent with a class 2 assessment;
(c) in line with the Guidelines, the way the worker presented on the day of assessment, should be considered over the subjective impairment reported by him, and
(d) the Medical Assessor’s own observations at the time of his examination support a class 2 assessment.
The worker submits:
(a) the mere demonstration of an ability to participate in a medical assessment is not sufficient evidence of only mild impairment;
(b) a medical examination by a competent medical assessor should not be “an intellectually demanding task”. It is assumed that the Medical Assessor will provide guidance and couch his or her questions in such a manner as to be easily understood by the person being examined; that the examiner will make every attempt to make the worker feel at ease and be provided with ample opportunity to provide accurate responses to the examiner’s enquiries;
(c) the operative guidance under Table 11.5 is the inability to follow complex instructions, and
(d) contrary to the opinion of Dr Chew, watching television or engaging with friends does not equate to following complex instructions.
Discussion
The clinical notes of the various treating practitioners are consistent with the observations of the Medical Assessor.
For example, Mr McQuillen noted in July 2023:
“He reported difficulty with making decisions without guilt, he worries about being frowned upon by others…
Reported hasn’t been able to do eulogy, can’t praise self or say nice things about self.”
On 29 November 2022 Dr Oldham said: “He feels ‘not the best’ because he has been upset more frequently than usual, can’t make decisions…as soon as things get complicated he gets confused.”
On 28 February 2023 Dr Oldham noted:
“I reviewed Mr Mansfield today. He’s been ‘struggling’…
He’s decided not to proceed with any Day Hospital program at this time. He’s vulnerable to becoming confused when he experiences any kind of complexity. This is one of the symptoms of PTSD, a difficulty in managing usual executive functions.”
There are numerous other entries throughout the notes describing Mr Mansfield’s capacity in this category.
What they demonstrate is that he is overwhelmed by undertaking even relatively simple tasks.
Dr Khan also said:
“His concentration, persistence and pace were moderately impaired as he struggled with his attention and concentration and had difficulties focussing on cognitively challenging tasks and easily distracted with impaired memory.”
Dr Chew said:
“He had mildly impaired concentration, persistence and pace as he was able to concentrate on the interview and able to concentrate watching tv and engaging with friends.”
Given the descriptor for a Class 2 noted above, the evidence overall does not suggest that the worker could “undertake a basic retraining course, or a standard course at a slower pace.” The difficulties noted by the treating specialists noted above would not, in our view, enable Mr Mansfield to undertake any such course.
Similarly with his ability to “focus on intellectually demanding tasks for periods of up to 30 minutes”. The evidence does not support a Class 2 rating.
As the worker correctly pointed out, “watching television or engaging with friends does not equate to following complex instructions.”
The employer has focussed mainly on the requirements of Clause 1.6 of the Guidelines, and the Medical Assessor’s statement that the worker “appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.”
Sustaining concentration is only one aspect to consider in this category. The term “grossly cognitively intact” indicates only that the worker was not unimpaired. Having made these observations the Medical Assessor was of the opinion that these did not indicate a mild impairment.
In our view, the assessment made by the Medical Assessor was consistent with all of the evidence, and he was entitled to make the assessment he did.
Self-care and personal hygiene
The Medical Assessor assessed a Class 1 and said:
“He said he showers himself every day, and he said he sometimes has to push himself, but he doesn’t require assistance or reminders. He said he shaves himself every couple of weeks when he needs to make himself presentable, whereas prior to the subject injury he would shave every day. He said he has been cooking daily, and he has always cooked. He said he has been cleaning the house and doing his laundry regularly. He said he has been shopping regularly once a week, though he struggles being around people when he goes. He presented as a smartly dressed and reasonably groomed middle-aged man.
As he has been able to maintain his personal hygiene and self-care on a regular basis, albeit to a lesser standard than his pre-injury state, but within the range of the normal population with reasonably regularity with his showering, cooking, household tasks and shopping, he has minor impairment.”
The descriptor for a Class 2 reads: “Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
For a Class 1 it reads: “No deficit, or minor deficit attributable to the normal variation in the general population.”
The worker makes the following submissions:
(a) the Medical Assessor was in error in his assessment which is not consistent with the assessments made by Drs Chew and Khan and appears to be based on an under-assessment of the consequences of the worker’s alcohol consumption, and
(b) it is submitted that the appropriate assessment would be Class 2 based on the Medical Assessor’s comments: “He said he now drinks every day, and he consumed 4-5 bottles of wine a week, without any significant negative consequences, and he has been drinking more to get the same effect, and he has had withdrawal symptoms when he has breaks from drinking, with diaphoresis, with cravings.”
The employer submits:
(a) the observations and history documented by the Medical Assessor and his reasons for assessing a class 1 impairment are consistent with the example provided in respect of a class 1 impairment;
(b) the workers submissions with respect to consumption of alcohol do not appear to have inhibited his ability to undertake self-care and personal hygiene;
(c) the Medical Assessor’s findings with respect to this area do not align with the workers assertion of a class 2 impairment. For instance, there is no evidence that he misses meals, or relies upon takeaway food, and the evidence suggests that he has largely been able to maintain his pre-injury standard of selfcare and personal hygiene, albeit that he may not shave as frequently as he did;
(d) the Medical Assessor is not required to agree with or to adopt the assessment(s) of other specialists relied upon by the parties to the proceedings;
(e) in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [26] Campbell J stated the following in relation to the role of a Medical Assessor:
“their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise”, and
(f) a simple difference of opinion on the subject about which reasonable minds may differ will be insufficient to establish error by the Medical Assessor in the statutory sense (Ferguson v State of New SouthWales [2017] NSWSC 887 at [24]).
Discussion
We agree with the thrust of the employer’s submissions.
Aside from what the Medical Assessor considered was an excessive consumption of alcohol, and a reduction in the regularity of shaving, there is no evidence to support a Class 2 rating.
As the worker told the Medical Assessor, “he has been cooking daily, and he has always cooked.”
It is true that Drs Chew and Khan reached a different conclusion on the basis that “he struggles with self-care from time to time” and “struggles with motivation sometimes and there has been weight loss and escalating alcohol use since his subject injury.”
The Medical Assessor in fact diagnosed alcohol use disorder, but did not consider that it impacted significantly in terms of Mr Mansfield’s self-care and personal hygiene.
As the employer pointed out, there is no evidence to support an assertion that alcohol consumption has affected his ability to care for himself.
Dr Khan’s reference to “escalating alcohol use” is nothing more than an observation without comment.
In our view, it fits a pattern that may well mirror a “minor deficit attributable to the normal variation in the general population.”
As the Medical Assessor noted: “He has been able to maintain his personal hygiene and self-care on a regular basis, albeit to a lesser standard than his pre-injury state, but within the range of the normal population…” (our emphasis).
For these reasons, we do not consider that the Medical Assessor erred in his assessment in this category.
Social and recreational activities
The Medical Assessor assessed a Class 2 and said:
“He said he has about three friends, and he said he is in contact with his friends every couple of weeks. His friends live down the coast about 2 hours away and he sees them once a month on average, and go water-ski occasionally, and he has attended a football game when they visited him last year, with encouragement from his friends. Prior to the subject injury, he would see them on weekends, and they would water-ski frequently.
He had travelled overseas in October 2023 for three weeks with his friends, to South-East Asia, and he said he was supported by his friends, who organised it for him, and supported him through it. He said he was able to enjoy that.”
The worker submits:
“The MA was in error his assessment which is not consistent with the assessments made by Drs Chew and Khan and appears to have underestimated the role played by the friends he visits on the south coast and with whom he travelled overseas as support persons: “He had travelled overseas in October 2023 for three weeks with his friends, to South-East Asia and he said he was supported by his friends, who organised it for him, and supported him through it.”
The employer submits:
(a) the worker seems primarily to rely upon an assertion that the Medical Assessor’s findings were not consistent with the opinions of Dr Chew and Dr Khan;
(b) the worker does not make any submission as to what classification he considers that the Medical Assessor should have assessed;
(c) for a class 3 impairment of social and recreational activities, the Guidelines provide the following: “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”;
(d) the Medical Assessor’s history and findings on examination do not align with the level of impairment which is demonstrated by the examples provided by the Guidelines for Class 3, and
(e) there is no evidence, for example, that the worker is unable to attend social events or activities without a support person. Furthermore, the fact that he is able to travel down to the south coast to visit friends, is able to undertake activities such as waterskiing and attending a football game, as well as travel overseas, strongly suggests that a Class 2 impairment assessment aligns with his functional capacity.
Discussion
Again, we agree with the thrust of the employer’s submissions.
The evidence clearly shows that Mr Mansfield has been able to socialise with friends, and attend social gatherings with them.
It seems to us to be drawing a long bow to suggest that travelling overseas with mates equates to “support” persons in the context of the Guidelines.
These are friends the Medical Assessor noted that he sees fairly regularly.
Undoubtedly these friends are aware of his condition and one would expect them to accommodate him and give him care and support when needed.
The descriptor for a Class 2 reads:” Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
Simply put, the descriptor for a Class 3 rating does not accord with Mr Mansfield’s functioning in this category.
From the history obtained by the Medical Assessor there is no suggestion that Mr Mansfield “rarely goes out” or that he is not actively involved, for example in water-skiing or bush-walking as he told Dr O’Neill.
Dr Khan saw Mr Mansfield in July 2023 and Dr Chew in August 2023.
It may be that Mr Mansfield’s condition had improved since then when he saw the Medical Assessor on 4 March 2024.
The Medical Assessor clearly accepted that Mr Mansfield had some limitations in this category and in our view, his assessment was consistent with all of the evidence.
For these reasons, we again find no error by the Medical Assessor.
Adjustment for the effect of treatment
Clause 1.32 of the Guidelines provide the following in relation to adjustment for the effects of treatment (emphasis added):
“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 Medical Assessor recorded that the worker had “found some benefit from psychological therapy, but not to the extent it has led to significant improvement.” He added 1% WPI for the effects of treatment.
As stated earlier, both parties agreed that this was an error by the Medical Assessor.
We also agree.
The Guidelines provide that an adjustment is to be made only where the treatment has been effective and there is “substantial or total elimination of the claimant’s permanent impairment.”
Given the Medical Assessor’s assessment of 17% WPI, less one-tenth for the pre-existing condition, it is difficult to see how it could be said that there has been “substantial or total elimination” of his permanent impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2024 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: | W644/24 |
Applicant: | Troy Mansfield |
Respondent: | Cullen Steel Fabrications (NSW) Pty Ltd |
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 Yu-Tang Shen 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 NSW workers compensation guidelines | 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) |
| 1. Psychological | 10/12/2020- deemed | 11, page 54 | 14, pg 361-365 | 17% | 1/10th | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
3
0