Disability Services Australia Ltd v Puleanga
[2022] NSWPICMP 303
•26 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Disability Services Australia Ltd v Puleanga [2022] NSWPICMP 303 |
| APPELLANT: | Disability Services Australia Ltd |
| RESPONDENT: | Kristy Puleanga |
| APPEAL PANEL: | Member Brett Batchelor Medical Assessor Douglas Andrews Medical Assessor Michael Hong |
| DATE OF DECISION: | 26 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal by employer against Medical Assessment Certificate (MAC) for 17% whole person impairment (WPI) suffered as a result of psychological injury suffered by respondent worker; the appellant alleged that the Table 11.4 psychiatric impairment rating scale (PIRS) classification of the respondent in Class 3 (moderate impairment) rather than Class 2 (mild impairment) was a demonstrable error; the respondent also alleged that the deduction of 5% (1/20th) rather that a higher figure from the assessed WPI of 17% was a demonstrable error; finding by the Appeal Panel that there was no error in placing the respondent in Class 3 of PIRS for social functioning; finding by the Appeal Panel that there was a demonstrable error in the 5% deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held — the deduction should be 10% (1/10th) in accordance with section 323(2) of the 1998 Act; Medical Assessment Certificate (MAC) revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 May 2022 Disability Services Australia Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor (the MA/Dr Blom), who issued a Medical Assessment Certificate (MAC) on 4 April 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, 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 (the Panel) has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Kristy Puleanga (the respondent/Ms Puleanga) worked for the respondent for approximately two and a half years in a group home for individuals with psychiatric or other disorders. In 2018, one of the clients of the group home began to make increasingly sexualised comments to her, telling her he was in love with her, with associated sexual inuendo. The respondent found this quite disturbing because of her fear that the situation might escalate. She complained to management on a couple of occasions but no substantive action was taken and the situation did not change. In late October 2018, the same client, who had a previous history of Methamphetamine abuse, re-commenced taking the drug. This was evident to
Ms Puleanga because of his appearance and increasingly inappropriate behaviour which became menacing.A short time later the client attempted to grab the respondent’s breasts. Ms Puleanga reacted angrily to this. The client threatened another staff member. The client then left the group home and returned a few days later, clearly drug affected, when the respondent was on night duty. She was sexually assaulted by the client, who after the intervention of another client of the group home, left the premises. The police were called and found the client and returned him to the home. The respondent worked out her shift, but experienced significant anxiety and distress. She attended her next shift (a day shift as opposed the previous night shift) but was sent home because of her level of anxiety. Ms Puleanga has not returned to work for the appellant since that time.
The respondent came under the care of her general practitioner who gave her time off work. She experienced distressing nightmares over the following weeks centred on what had happened to her, including daytime flashbacks of the client grabbing her. Ms Puleanga’s anxiety and worry increased because she was aware that the client knew where she lived. The police subsequently interviewed the respondent, and the client was charged and the subject of an AVO.
The respondent was referred to a psychologist but found that the exposure sensitisation techniques he used unhelpful and she ceased this treatment. She later saw another psychologist in March 2019, and came under the care of a psychiatrist, Dr Pavan Bhandari, who initiated her on anti-depressant medication. Ms Puleanga continues to see Dr Bhandari.
During 2019 and into 2020 it appears that the respondent’s symptoms worsened, and she experienced periods of heavy alcohol usage. On the advice of Dr Bhandari, this has moderated this.
Notwithstanding her symptoms, the respondent was able to work in a job that she had previously undertaken concurrently with her work with the appellant. This was one shift every week or two until about mid-2019. Thereafter she obtained a position as a “Peer Worker” with Greater Pacific Health, working 15 to 20 hours a week over two days. She was able to manage this work because of a supportive employer. During Covid, this work was done via telehealth, meaning there was no direct contact with clients. She left this position in early 2022 because of a change in management of Greater Pacific Health, which Ms Puleanga felt was less supportive of her situation.
In about April 2022 the respondent commenced a position with her aunt who is running a contracting business to the NDIS, and at that stage was hopeful of returning to work approximately 15 to 20 hours a week in this position.
PRELIMINARY REVIEW
The Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because although the appellant requested that the respondent be re-examined by a MA who is a member of the Panel, it did not make any submissions in support of this request. The respondent did not request re-examination. The Panel is of the view that there is sufficient material in the Appeal Papers (AP) on which to base its decision on the appeal.
EVIDENCE
Documentary evidence
The Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. In summary, they are as follows.
Appellant
The appellant submits that the MA made a demonstrable error with respect to the classification of the respondent in Class 3 rather that Class 2 for “social functioning” in Table 11.4 of the Guides, the psychiatric impairment rating scale (PIRS) (Ground One). The appellant also submits that the MA did not make an appropriate deduction from his assessment of 17% whole person impairment (WPI) pursuant to s 323 of the 1998 Act (Ground Two).
In respect of Ground One the appellant notes that Dr Blom, in placing the respondent in Class 3 for social functioning, made the following relevant findings:
(a) he considers the respondent’s relationship with her husband has improved but they remain strained, and
(b) he considers the respondent’s relationship with her children is strong and has not been affected by tension, although her children appear to be taking on a caretaking role. He also considers the respondent has lost some friends.
The appellant submits that the findings made by the MA are inconsistent with the description used in the Guidelines in respect of Class 3, noting that he has found that the respondent has lost some friends, her relationship with her husband is strained and she has a strong relationship with her children.
The appellant submits that having regard to the findings of the MA in relation to the respondent’s social functioning, he fell into error when classifying the respondent’s impairment in Class 3 rather than Class 2.
In respect of Ground 2, the appellant asserts that the MA accepts that the respondent has had a long and complex history of psychiatric disorders prior to her injury, noting she suffered from anxiety and depressive symptoms, and has been treated with a wide range of antidepressants and other psychotropic medications over the years. Despite that history,
Dr Blom applied a 5% deduction pursuant to s 323 of the 1998 Act.The appellant then lists from the records of Goulburn Doctors 10 entries in those records covering the period from 23 February 2015 to 19 May 2018[1] when Ms Puleanga presented with symptoms of anxiety, depression, insomnia, loneliness, anger, panic, low mood, low motivation, irritability including ease with crying, issues with her partner, instability of mood and suicidal thoughts. Medications prescribed by the doctors referred to in the clinical notes are referred to. In the entries of 7 January 2017 and 19 May 2018, reference is made to referral to Dr Warwick Williams for psychiatric review.
[1] AP pp 669 – 685.
The appellant notes that Dr Williams examined Ms Puleanga on 4 October 2018 following referral from her general practitioner. Dr Williams reported that although the respondent had achieved a virtually complete remission in her depression syndrome, she was still taking psychotropic medication consisting of Neulactil, Valpro and Nortriptyline.
The appellant notes the 5% deduction assessed by Dr Blom for a pre-existing condition. The appellant submits that although the respondent has had consistent symptoms from the age of 15, requiring management by a psychologist on a couple of occasions and also the intervention of a psychiatrist, Dr Blom considers that she had no symptoms at the time of her injury.
The appellant notes the comment of Dr Blom that the respondent’s pre-existing depressive disorder contributed to her impairment bit that the deduction is “…unwarrantedly high as her depressive disorder only contributes modestly to her impairment”. (emphasis in submissions).
The appellant refers to the report of Dr Williams dated 4 October 2018[2] and the intake of the medication referred to in [24] above, and submits that this is reflective of a significant degree of the impairment prior to the work injury.
[2] AP p 411.
The appellant submits that given the significant history and sustained treatment the respondent has received over the years, including so close to the subject work injury, a 5% deduction pursuant to s 323 of the 1998 Act is inappropriate in the circumstances and discloses a “demonstrable error” pursuant to s 327 of the 1998 Act.
Respondent
In reply, the respondent submits that the MA has not erred in his assessment of WPI and in particular his assessment in PIRS categories.
In respect of Ground One of the appeal the respondent refers in detail to the description for Class 3 in the Guidelines for social functioning, “moderate impairment”, and submits that
Dr Blom was satisfied that there had been several separations between the respondent and her husband, and that even though the relationship had improved there remained strain and tension, and that further separation was a possibility.Given the history taken by Dr Blom, relevant parts of which will be referred to hereunder, the respondent submits that Class 3 for social functioning was the appropriate PIRS rating. There is no demonstrable error in this regard.
In respect of Ground Two, the respondent notes that she freely supplied a history of pre-existing psychological difficulties from early childhood. The respondent notes that
Dr Williams, who last saw her on 4 October 2018 before the subject injury on
10 November 2011 when Ms Puleanga was still taking psychotropic medication consisting of Neulactil, Valpro and Nortriptyline, nevertheless said in his report to the general practitioner that:“I saw Kristy again for an elective review on 4th instant.
She has achieved a virtually complete remission of her depressive syndrome on Nortriptyline 75 mg at night.
…
She now has quite a comprehensive range of self-help techniques to practise and will use these until they are no longer required.”[3]
[3] AP p 411.
The respondent notes that this report of Dr Williams pre-dates the subject accident by about five weeks, and that it is clear from the report that any psychiatric condition that she has suffered had resolved by at least 4 October 2018. The MA referred to the report and the remark therein that Ms Puleanga was well and had reached full remission.
Accordingly, the respondent submits that 5% deduction from the WPI assessed due to a previous condition pursuant to s 323 of the 1998 Act was appropriate in the circumstances.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[4] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[5]).
[4] [2008] NSWCA 116.
[5] [2013] NSWCA 1792.
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.
Appeal Ground One
Class 2 in Table 11.4 of PIRS is as follows:
“Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Class 3 is as follows:
“Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The MA records the following in respect of social functioning:
“Her relationship with her husband has improved but there remains strain and tension. As mentioned there has been several separations although none recently. Nevertheless, the tension is such that this remains a possibility. Her relationship with her children is very strong and has not been particularly affected by tension although it is clear from Ms Pule’anga’s descriptions that the children are taking on something of a caring role for their mother. She said she has lost some friends although remains close to one of her friends from her DSA work, Jodie. She had another friend from work, Rachel, who now lives near the group home and so Ms Pule’anga has ceased contact with her because it causes her too much anxiety as contact with her reminds her of the group home.”[6]
[6] AP p 24.
In this case the Panel is of the view that the respondent satisfies the criteria for moderate impairment. Her relationship with her husband has been severely strained with several separations. Notwithstanding recent improvement, the tension in the relationship means that further separations are a possibility. While there has been no domestic violence, that is listed in the criteria as an example only of moderate impairment. Ms Puleanga’s relationship with her children is strong, but they appear to have taken on a caring role for their mother. She has lost some friendships.
The MA must assess a worker as he or she finds the worker on the day of assessment and having regard to the history her receives and material in evidence before him, using his clinical skills and judgement. In this case A/Prof Robertson, who assessed the respondent on two occasions on 18 February 2020 and 11 May 2021[7], on each occasion assessed her in Class 3 for social functioning, recording in his report dated 18 May 2021:
“It was noted the marriage had broken down in early 2020 (Dr Miller's statement that
the marriage had broken down irrevocably was incorrect). Ms Morris-Puleanga
stated that the situation had improved but in her marriage. She has, however, lost
multiple friendships in the course of these difficulties.”
[7] AP pp 59 and 68.
Dr Miller, who assessed the respondent on two occasions on 8 April 2020 and
18 August 2021[8], did not assess WPI on the first occasion as she found that maximum medical improvement had not been reached. There is an incorrect record in Dr Miller’s report dated 14 April 2020 of the respondent’s marriage having ended in December 2019, and that the ending of the marriage further contributed to the recurrent major depressive disorder from which Ms Puleanga had suffered from the age of 15 years in the context of the separation of her parents. Dr Miller was of the opinion that Ms Puleanga’s symptoms did not meet the threshold for post-traumatic stress disorder (PTSD). This compares with the opinion ofDr Blom that the diagnosis of PTSD is appropriate. Dr Blom finds that Ms Puleanga developed a second significant diagnosis of major depressive disorder as a result of her PTSD, and that she continues to have a range of symptoms consistent with that diagnosis. That diagnosis is also accepted by the respondent’s treating psychiatrist, general practitioner, and psychologist.[8] AP pp 84 and 96.
On the second occasion Dr Miller assessed the respondent she placed her in Class 1 for social functioning, no deficit. Dr Miller says that on 18 August 2021 Ms Puleanga did not report any deficit in her marriage. This contrasts with the history recorded by
A/Prof Robertson and Dr Blom, and as noted by Dr Blom, in the documentation before him. The Panel is firmly of the view that a Class 1 categorisation is incorrect, and notes that this classification is not accepted by the appellant, which submits that social functioning should be in Class 2 rather than Class 3.The Panel is of the view that the respondent has suffered moderate, and not mild, impairment in respect of social functioning. The Panel does not find error on the part of the MA in placing the respondent in Class 3 for social functioning.
Ground 2
The Panel accepts the appellant’s submission that the MA has made a demonstrable error in making a deduction of only 5% from his assessment of WPI pursuant to s 323 of the 1998 Act.
The MA notes when giving his opinion as to why the deductible proportion should be 5%, that Ms Puleanga has a long history of “Depressive and Anxiety Disorder”, consisting of episodic symptoms which started from about the age of 15 following the unexpected separation of her parents. He notes that she has had a variety of symptoms and required episodic treatment by her general practitioner over the years as well as requiring management by a psychologist on a couple of occasions, together on at least one occasion, treatment by a psychiatrist.
Dr Blom says that:“She had no symptoms of this disorder at the time of her injury but pre-existing Depressive Disorder has been shown in research to impact on the chronicity, severity and impairment in subsequent illness. As such, a deduction is warranted, but it is impossible to determine exactly how much it contributes.”[9]
[9] AP p 28.
The MA then goes on to say that it is clear that the PTSD symptoms are the primary cause of the respondent’s impairment, and that this disorder is not impacted in any significant way by her pre-existing illness. The development of the respondent’s depressive disorder however has, according to Dr Blom’s belief, been impacted by the pre-existing illness. He then says:
“In this case, the 10% deduction is unwarrantedly high as her depressive disorder only contributes modestly to her impairment. I think a more appropriate deduction is to halve the statutory deduction, and so to deduct 5% that is 1/20th.”
The Panel notes that the respondent was consulting Dr Williams up until about five weeks before the assault on her on 10 November 2018, and that she was still taking psychotropic medication. The Nortriptyline medication was roughly in the middle of the therapeutic range.
The consultations the respondent had with her doctors for psychological problems over the period from 2015 to 2018, culminating in the attendances on Dr Williams which were initiated by Dr Hasan Al Hashami on 7 January 2017[10], are referred to in [23] above.
[10] AP p 679.
The statement by Dr Blom as to the impossibility to determine how much the pre-existing depressive disorder impacts on the chronicity, severity and impairment in the subsequent illness illustrates the utility of s 323 (2) of the 1998 Act, namely:
“If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The Panel finds that a 10%, that is 1/10th deduction, from the assessment of the MA of 17% WPI is not at odds with the available evidence. Such a deduction acknowledges the relative length of time that Ms Puleanga had suffered from the pre-existing condition and its severity, balanced by the fact that at the time of the subject injury the condition it was well controlled, with Dr Williams stating that he had made no arrangements for further consultations unless difficulties arose in his area of involvement.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W5782/21 |
Applicant: | Kristy Puleanga |
Respondent: | Disability Services Australia |
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 Dr Blom 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, psychiatric | 10/11/ 2018 | Chapter 11, Pages 45-60, Edition 4 | AMA Guidelines replaced by Fourth Edition PIC Guidelines | 17% | 1/10th (deduct 1.7%) | 15% (rounded) |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
2
0