Dial A Dump (EC) Pty Limited v Swain

DETERMINATION OF APPEAL PANEL
CITATION:	Dial A Dump (EC) Pty Limited v Swain [2024] NSWPICMP 132
APPELLANT:	Dial A Dump (EC) Pty Limited
RESPONDENT:	Daniel Swain
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	11 March 2024
CATCHWORDS:	WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred because the worker has provided differing histories of activities of daily living to MA Burns in Medical Assessment Certificate (MAC) dated 14 June 2023 and MA Shen dated 11 September 2023; the differing histories raises serious doubts as to the psychiatric impairment rating scale classes relating to self-care and personal hygiene, social functioning, and concentration, persistence, and pace; the Panel agreed; re-examination arranged; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 October 2023 Dial A Dump (EC) Pty Limited (the appellant) 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 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The respondent sustained physical and psychological injury on 27 May 2019.
The respondent filed an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 2 May 2023 claiming lump sum compensation pursuant to s 66 in respect of 19% whole person impairment (WPI) for the right upper extremity (right shoulder) and 22% WPI for psychiatric and psychological injury.
Pursuant to s 65A of the Workers Compensation Act 1987, the respondent is entitled to be compensated in accordance with the highest assessment.
The respondent was assessed by Medical Assessor Burns on 7 June 2023 and the Medical Assessment Certificate is dated 14 June 2023.
The respondent was assessed by Medical Assessor Shen on 4 September 2023 and the Medical Assessment Certificate is dated 11 September 2023.
The appellant alleges error in the Medical Assessment Certificate of Medical Assessor Shen.
The appellant submits the Medical Assessment Certificates of Medical Assessor Burns and Medical Assessor Shen should be read together.

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 the worker should undergo a further medical examination because the Medical Assessor erred in that the history he obtained from the worker was deficient, and his assessments in some of the psychiatric impairment rating scale (PIRS) categories were incorrect, having regard to the whole of the evidence.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 6 March 2024 and reported to the Appeal Panel.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the worker has provided differing histories of activities of daily living (ADL's) to Medical Assessor Burns in Medical Assessment Certificate dated
14 June 2023 and Medical Assessor Shen dated 11 September 2023. The differing histories raises serious doubts as to the PIRS classes relating to the following: (a) self-care and personal hygiene; (b) social functioning (c) concentration, persistence, and pace.
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.
The respondent was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological/psychiatric injury occurring on 27 May 2019.
The Medical Assessor obtained the following history:
“He said that on the day of the subject injury, they were getting the garbage trucks in, and they were tipping off their load onto him and a work colleague. He said a wave of rubbish came over them, and he was under it for 10 minutes.
He said he thinks he lost consciousness.
He said he had abrasions from head to toe, he had two hernias and his ear was hanging off, and his right arm was damaged. He was taken to the hospital.
He said he has ongoing right arm weakness and pain in the elbow to shoulder, and bad migraines.
He said he started to develop psychological symptoms, though he is not sure when they started. He said he has had voices in his head, of his work mate who had been calling out his name. He felt he couldn’t do anything without being stressed easily.
He had a lot of intrusive recollections of the subject accident and would wake up in sweat and shaking. He would have triggers that reminded him of the accident, such as his best mate, as his colleague was his best mate’s uncle, so he could not engage with his usual social activities as a result. He felt it was harder to enjoy things, and he felt disconnected from people. He felt angry at himself over not being able to do anything, and blames himself. He said he would get easily angry, and would be yelling and screaming, and more hypervigilant. He had difficulties with his concentration at the time. He denied any dissociation.
He said he was feeling badly depressed, and he had issues with his sleep. He said his appetite had been reduced, and his weight was reduced slightly. His energy was reduced. He said he was feeling worthless and useless. He said he had death fantasies, without suicidal ideations.
He saw his GP, psychologist and psychiatrist. He had seen a physiotherapist as well. He was also treated with Endep and panadeine forte, and he had been on various other medications which caused adverse reactions. He has found Endep to be mildly helpful for his mood, and the psychological therapy has been moderately helpful.”
After setting out details of the respondent’s present treatment regime, the Medical Assessor then noted present symptoms as follows:
“He said he has been feeling depressed, but less than before, and he feels depressed every “now and then”, but then he said he was depressed most of the time, and it comes and goes throughout the day and every couple of days. He said that he has continued to struggle to sleep at night. His appetite has been generally ok. He said he feels useless. He denied any suicidal ideations.
His energy has[sic] poor, and he doesn’t do much with his energy apart from tidying up the house, and sometimes he can go out to do the lawns, but only persists until his arm hurts, so he cannot finish the whole yard. His concentration has been generally poor, and he doesn’t read much.
He said he has the memories ‘every now and then’. He said he has nightmares, which occur a couple of nights a week, including being in a landslide pressed against a fence and not being able to get out. He cannot sleep with a blanket covering him. He still hears the voice, and cannot shut it out. He denied other hallucinatory experiences. He has ongoing pain, which come and go, and he finds the panadeine forte not lasting long enough to cover the pain.”
As regards Mr Swain’s ADL’s the Medical Assessor said:
“He lives in Penrith with his partner of a few years, and he has been with her since prior to the subject injury, though it was on-and-off back then. He said their relationship now is ok, and he said they have occasional arguments, but no physical violence, and no periods of separation.
He has four children, whom he sees every second week. He said his relationship with them has been ok, though it has been better when he took them out places and engaged in social activities, whereas now they spend the time at home.
He has two brothers and three sisters and he said he rarely speaks to them now; usually he speaks to them about every few months.
He has a couple of friends, whom he speaks to every few months. He said they catch up every few months, and he last saw them a couple of months ago, and they sat around and talked.
He said he doesn’t do much by way of activities now, including activities he enjoyed such as fishing, kayaking, camping, motorbike-riding. He said he can no longer do those as he is not the same, as he feels safer being indoors.
He said he showers about once a night, though he will occasionally skip a day or so. He said he wears the same clothes for a couple of days. He said he occasionally cooks, then he said he cooks about a couple of times a day, but not for dinner. He can generally make a sandwich or noodle for himself, but his partner generally cooks dinner. He said he doesn’t do the cleaning in the house, and he doesn’t do the laundry. He said he doesn’t do much of the shopping, as his missus usually does that for them.
He said he occasionally drives only when needed, but generally avoids it; he has driven to the shops for light shopping such as to get milk. He said he would not drive elsewhere, as he would get anxious, ‘I don’t feel safe driving long distance’”.
Findings on mental state examination were reported as follows:
“He engaged cordially in the assessment and provided relevant answers to questions asked. He told me he was feeling anxious and fearful, and sometimes depressed. He displayed limited emotional reactivity during the interview. He spoke articulately and in a logical sequence most of the time, with mild reduction in prosody. He had ongoing complaints of pain in his right arm. He also had ongoing feelings of pessimism and guilt. He denied any suicidal ideations. He denied any paranoia and had no perceptual disturbances. He was alert and appeared grossly cognitively intact, and was able to sustain his focus for the duration of the assessment.”
In summarising the injuries and diagnoses, the Medical Assessor said: “He has: Post-traumatic stress disorder and Persistent depressive disorder. There were no major inconsistencies.”
The Medical Assessor assessed 19% WPI.
He explained his reasons by reference to a number of documents as follows:
“Ambulance Electronic Record, dated 27 May 2019 He was buried 2 metres under a pile of rubbish, for 15 minutes, and he was GCS=15.
GP Health records. He had been diagnosed with PTSD, and was on duloxetine, then endep, referred for psychologist, and there were white matter changes on brain scan, so he was referred to a neurologist.
Report by Dr John Roberts, dated 13 March 2020. He was diagnosed with Post-traumatic stress disorder, moderate severity, with treatment inclusive of CBT, and mirtazapine. He lives with his father, and has been undertaking domestic duties, and fishing. He had three children from two previous relationships, and had a partner at the time, with some tension in the relationship. He had not returned to work.
Report by Dr John Roberts, dated 3 January 2023. He was diagnosed with Post-traumatic stress disorder with depression. Self-Care and Personal Hygiene = 1; Social and recreational activities = 3; Travel = 2; Social Functioning = 1; Concentration, Persistence and Pace = 2; Adaptation = 2; WPI = 5%.
Independent Consultant Stage 2 Summary letter, by Thomas O’Neill, dated 2 November 2020 He was supportive of further psychological therapy, which had been slow to commence due to reduced engagement initially, and treatment has included cognitive behavioural strategies, and imaginal exposure.
Report by Dr Abdal Khan, dated 31 July 2022 He was diagnosed with post-traumatic stress disorder, and major depressive disorder. He was on amitriptyline 150mg nocte, and receiving psychological therapy. Self-care and personal hygiene = 2; social and recreational activities = 3; Travel = 2; Social functioning = 3; Concentration, persistence and pace = 3; Employability = 5; WPI = 22%.”
He added:
“My opinion is more aligned with Dr Abdal Khan’s assessment, and I have provided a more significant level of impairment compared to Dr John Roberts’ opinion. Direct comparisons for each domain of the PIRS and my reasoning can be found in the PIRS table.”
The Medical Assessor set out his PIRS assessments in the Table accompanying the MAC.

The submissions discussed

The appellant submits as follows:
(a)   as regards self-care and personal hygiene, Medical Assessor Shen assessed a class 2;
(b)   the worker informed Medical Assessor Burns that he is fully independent in self- care;
(c)   the history regarding ADL’s by the worker to Medical Assessor Shen is inconsistent with the history for the same category provided to Medical Assessor Burns. In particular “he performs some light tasks around the house, he shares the cooking and cleaning with his daughters, and he is fully independent in self-care”;
(d)   the different histories provided by the worker to the Medical Assessors, cannot be reconciled in that the worker would have no deficit or minor deficit attributed to the normal variation in general population and is correctly assessed at class 1;
(e)   the history provided to Medical Assessor Shen whilst consistent with class 2 is not consistent with the previous history provided by the claimant to Medical Assessor Burns. Considerable doubt must be raised as to the accuracy of the history provide to Medical Assessor Shen;
(f)    as regards Social and recreational activities, Medical Assessor Shen placed the worker into class 3. Medical Assessor Shen obtained a history from the worker that he has a couple of friends with whom he speaks every few months and he last saw them a couple months ago and they sat around and talked. He stated that he does not do much by way of activities that he previously enjoyed such as fishing, kayaking, camping, motorbike riding as he is not the same and feels safer being indoors;
(g)   Medical Assessor Burns noted the worker's brother does the lawn mowing and gardening due to his arm problems. This is in contrast to the history provided to Medical Assessor Shen that: “He has two brothers and three sisters; said he rarely speaks to them now. He usually speaks to them every few months”;
(h)   the worker should have been assessed by Medical Assessor Shen at class 2 – mild impairment;
(i)    the history provided to Medical Assessor Shen would not indicate that the worker remains quiet and withdrawn and this is supported by the history obtained by Medical Assessor Burns that his daughters have moved in with him and his brother comes and does the lawn mowing which would indicate regular contact with his brother(s) and more likely to be more often than every few months as recorded by Medical Assessor Shen;
(j)    as regards the category of Concentration, persistence and pace, Medical Assessor Shen has placed the claimant into class 3- moderate impairment;
(k)   Medical Assessor Shen obtains no history that the claimant is unable to read more than newspapers or finds it difficult to follow complex instructions, and
(l)    the history obtained by Medical Assessor Shen is of a mild impairment and should be assessed at class 2.
As we said earlier, the respondent submitted that no errors were made, and the ratings ascribed by the Medical Assessor were open to him on all the evidence.

DISCUSSION

The Panel agreed with the thrust of the appellant’s submissions such that we considered that a re-examination was appropriate.
In his report to the Panel dated 6 March 2024, Medical Assessor Glozier said:
“1. The worker’s medical history, where it differs from previous records.
Mr Swain continues to receive minimal treatment. He said he has not seen a psychiatrist since last year and a psychologist for possibly longer, although is considering getting a referral to see specialists again. He continues to take Amitriptyline 50mg nocte and Panadeine Forte proportional to his pain. He experiences chronic upper right arm pain associated with some numbness. He says this can be worse doing a number of activities so he limits himself from doing heavier activities around the home or anything that vibrates, e.g. mowing. This also stops him doing physical activities such as kayaking or riding a bike but with his fears of bad things happening and safety concerns, he is not certain he would do these anyway. The pain does not limit him in most aspects of self-care. He says he will occasionally do some stretches but otherwise does nothing else for his wellbeing. He describes eating ‘a normal diet,’ ‘eating everything’ but with no particularly healthy focus. He does no meditation, mindfulness or other wellbeing activities, or uses any online apps or other treatments. He does not use medicinal cannabis or any other newer treatments. He does not drink and cannot recall the last time he had alcohol. He smokes 10 cigarettes a day. He suggested that he is due to have a Cortisone injection in the near-future but was unclear when. Most of this history was quite vague, where responses were often limited.
2. Additional history since the original Medical Assessment Certificate was performed.
He continues to live in his father’s house, with his father, little brother and his two daughters aged 11 and 12. He said his father does not work following a shooting incident many years ago. His daughters live with him most of the week and are now in high school. His other daughter lives with their mother. He reported there are no ongoing custody or legal issues. He continues in his relationship with Skye whom he sees a couple of times a week and will stay over at times. He was assessed from her home.
He takes his medication around 8:30pm and goes to his room soon afterwards. He will then play fairly distracting and simple games on his phone until he dozes off. Most nights he sleeps through but once or twice a week he wakes following a nightmare, sweaty and aroused. These are specific nightmares always associated with the incident, of ground moving, sinking and a fence approaching him. He gets up around 7:30am, at times not having slept anymore after waking aroused. He will help get the kids ready, off to school, with breakfast etc. He reports doing little around the home. He may sweep or vacuum. He can cook and prepare meals and gave examples of several but his father apparently does most meals. He prefers not to go to the shops because of fears of safety ‘that something bad might happen’ and can be aroused and anxious there. However he can do so if required, getting in and out quickly. He will drive if necessary but again can be aroused, over-vigilant and wary of bad things happening. This anxiety occasionally gets so bad he has a panic attack, the most recent being last week where he had to pull over and control his breath. He reports he may have only seen friends once or twice in the past few months. He might pop over to theirs very briefly for ‘a hi and bye’ but does not go out anywhere with them socially. He won’t let even his friends inside the home for safety reasons, but cannot explain exactly why. His fears of bad things happening permeate his life and lead him to restrict what he does, becoming anxious in a range of scenarios and being over-protective, not letting his daughters do many things that others might. They do no out-of-school activities. He says he does nothing with Skye, and could not remember the last time they actually went out on a date. Apparently they tend just to sit at home, playing games on their phones separately. He does not like watching TV as he says machinery in shows can trigger him. Even shows such as sport that may not trigger him, he finds difficult to focus/concentrate on, and becomes frustrated. The phone games appear to be more of a distraction and the ones he described to me are just repetitive rather than requiring any cognitive demands. He sometimes plays an online non-gambling pokie which just requires repetitive touching of the screen. He does not go to pokies or gamble. He reports spending many hours not really doing anything, sitting there, maybe staring at walls or distracting himself with his phone. Otherwise he says he will have intrusive recollections of his dead friend calling out to him which can make him aroused and fearful. His moods are often angry/irritable and he finds himself easily moved to tears. He has little enjoyment now and cannot see things changing. He said he will occasionally ‘pull something apart and put it back together’ to ‘look inside’ but this does not appear to be anything involving fixing/repairing but rather a somewhat repetitive purposeless activity. He has not done any volunteering/training and thinks that nothing will change in the future. He reports in the evening after dinner he will shower virtually daily. His arm limitations do not restrict him. He has regular haircuts.
We explored his cognitive function previously. He reported that he had struggled at school and was educated in a ‘support unit’, often requiring extra help. He left at year 10. He has not gained any further qualifications and has only worked in jobs that have required no cognitive demands. He has always struggled with reading and writing, e.g. being unable to read a paper. However now he finds that trying to do such things trigger headaches. Whereas previously if he was trying to fill in a form or write something, he would try and complete it and then ask for help, but now finds he just gives up frustrated after a short period of time. He has never read books or done anything else cognitive-demanding and uses technology in a very limited way, stating that ‘I’ve never been very good,’ only doing emails and playing these repetitive games.
3. Findings on clinical examination.
Mr Swain was well-kempt with recently-cut hair. The assessment was characterised with a rather vague empty responses with limited spontaneity or elaboration of answers. He at times appeared to struggle with following some questions and suggested that this was due to his poor focus, a developing headache, and memory problems that have changed since the accident. He describes significant dysphoria with tearfulness, irritability, anhedonia, at times disturbed sleep through nocturnal re-experiencing phenomena as nightmares and having to distract himself from daytime intrusive phenomena. He fears for safety and the future, both for himself and others, appears rather detached and struggles with positive emotions. When out he is over-vigilant, reported excess startle, anxiety, arousal, and which at times forms panic attacks. His avoidance seems rather generalised and he did not ascribe paranoid intentions to others but rather fears of bad things happening in a range of settings that would be unpredictable. He sees threats everywhere.
Summary
Mr Swain clearly reports a Post-Traumatic Stress Disorder following a Criterion A event where his friend died. He reports significant symptoms in all of the symptom domains as well as depressive phenomena that may meet the criteria for a co-morbid depressive disorder, e.g. Persistent Depressive Disorder or even a Major Depressive Disorder. His treatment has been fairly minimal.
There was an appeal on three classes, namely Self-care and Personal Hygiene, Social and Recreational Activities and Concentration, Persistence and Pace.
In terms of self-care, he reports being able to shower regularly, prepare meals, shop and contribute in a somewhat limited way to the home, in large part predicated upon his arm pain and its exacerbation through activities. He also cares for his two daughters. He reports a normal diet, eating everything, not drinking, smoking and good adherence. As such I cannot identify any deficit outside the normal variation in the general population attributable to his psychiatric disorder: Class 1.
He undertakes virtually no social activities, only very rarely seeing an old friend for a ‘pop-by’ and won’t let them come to him. He does no social activities out of the home and the only recreational activity he does is playing on the phone. He has been physically unable to do kayaking, cycling and camping as he used to. This is a moderate impairment, Class 3.
In terms of social functioning, he has an ongoing relationship with his long-term girlfriend, cares for his two daughters and a reasonable relationship with his father and little brother. He has lost quite a lot of friends: a mild impairment, Class 2.
Concentration, persistence and pace. Even allowing for what would appear to be a limited pre-morbid intellect and limited education with apparent impairments in literacy, he reported a stepwise change following the incident. He now gets frustrated, such that he finds it difficult to watch television and won’t persist with asking for help with any forms or writing. Although he does play games for many hours, this requires no cognitive interaction and appears repetitive and almost somewhat obsessional, acting as a distraction from intrusive re-experiencing phenomena. He was vague and at times struggled with following the assessment with quite limited empty answers: Class 3, moderate impairment.
The other two classes of the PIRS were not appealed. If the findings from the three assessments are applied, this would be, in sequence, impairment classes of 1,3,2,2,3,5. This is an aggregate of 16; median class 3; resulting in a whole person impairment of 17%.”

The Panel agrees with the detailed findings, reasons and assessments made by Medical Assessor Glozier.
For these reasons, the Appeal Panel has determined that the MAC issued on
11 September 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:	W2990/23
Applicant:	Daniel Swain
Respondent:	Dial A Dump (EC) Pty Limited

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 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)
1.Psychiatric	27 May 2019	Chapter 11, page 54	Chapter 14, pg 361-365	17	0	17
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					17%

[2024] NSWPICMP 132

11 March 2024