Durant v Healthe Care Australia Pty Ltd
[2022] NSWPICMP 10
•18 January 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Durant v Healthe Care Australia Pty Ltd [2022] NSWPICMP 10 |
| APPELLANT: | Jessie Durrant |
| RESPONDENT: | Healthe Care Australia Pty Ltd |
| APPEAL PANEL: | William Dalley Dr Douglas Andrews Dr Julian Parmegiani |
| DATE OF DECISION: | 18 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury deemed to have occurred in July 2014; claim for lump-sum compensation assessed by Approved Medical Specialist in July 2017 assessed as not reaching the threshold and Certificate of Determination issued in 2018; further psychiatric assessment by independent medical expert in April 2021 asserted as the basis of a request for reconsideration of the 2018 Certificate of Determination; at telephone conference parties agreed to an order rescinding the Certificate of Determination to permit the filing of an appeal pursuant to section 327 (a) and (b) for the purposes of obtaining a threshold assessment; Held - there was prima facie evidence of deterioration warranting re-examinations by a Panel Medical Assessor; re-examination together with additional evidence established deterioration leading to increased impairment; more recent events did not break the chain of causation; Medical Assessment Certificate revoked for the limited purpose of threshold issue. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 August 2017 an Approved Medical Specialist, Professor Nicholas Glozier, issued a Medical Assessment Certificate (MAC) in respect of a claim by the appellant, Jessie Durrant, for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act).
On 16 September 2021 Mrs Durrant lodged an Application to Appeal Against the Decision of a Medical Assessor in respect of that assessment.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mrs Durrant suffered a psychological injury as a result of events in the workplace in the course of her employment as an Account Manager with Healthe Care Pty Ltd between 2008 and July 2014. The injury is deemed to have occurred on 2 July 2014.
Mrs Durrant was examined by a psychiatrist, Dr Graham Vickery, on 27 January 2015 at the request of the workers compensation insurer. Dr Vickery assessed Mrs Durrant as having suffered an Adjustment Disorder with Anxiety and Depressed Mood which had since resolved.
Dr Vickery again examined Mrs Durrant on 21 March 2016. On that occasion he diagnosed a “Major Depressive Disorder in partial remission on the background of an Obsessive-Compulsive Personality Type”. At that time Dr Vickery felt that Mrs Durrant had not reached maximum medical improvement.
On 12 September 2016 Mrs Durrant was assessed by a psychiatrist, Associate Professor Michael Robertson, at the request of Mrs Durrant’s solicitors for the purposes of a claim for lump-sum compensation pursuant to section 66 of the 1987 Act. Associate Professor Robertson assessed Mrs Durrant as suffering 17% whole person impairment (WPI) as a result of the subject injury. Mrs Durrant’s solicitors then made a claim for lump-sum compensation and for payment of treatment expenses.
The insurer denied the claim on the basis that the injury was not related to employment or, in the alternative, that the injury resulted from reasonable actions by the respondent employer.
Mrs Durrant’s solicitor lodged an Application to Resolve a Dispute in the then Workers Compensation Commission. At a hearing on 12 July 2017 an Arbitrator of the Workers Compensation Commission found liability established and remitted the claim for lump-sum compensation to the Registrar for referral to an Approved Medical Specialist for assessment.
Mrs Durrant was examined on 2 July 2017 by an approved Medical Specialist, Professor Nicholas Glozier, who assessed Mrs Durrant as suffering 9% WPI as result of the subject injury. On 21 March 2018 the Workers Compensation Commission issued a Certificate of Determination, noting the finding of injury resulting from employment and noting that
Mrs Durrant had no entitlement to lump-sum compensation as she did not reach the threshold required by section 65A(3) of the 1987 Act.On 22 April 2021 Mrs Durrant underwent a further psychiatric examination at the request of her solicitor. She was examined by a psychiatrist, Dr Samuel Lim who assessed Mrs Durrant as suffering 22% WPI. Dr Lim reported that he was of the opinion that Mrs Durrant had “presented with a deterioration of her injuries and associated disabilities following the AMS decision and appeal”.
On 6 July 2021 Mrs Durrant sought a reconsideration of the MAC on the basis that there had been a deterioration of her condition resulting in an increase in the degree of permanent impairment and the availability of additional evidence. That application was opposed by the respondent.
At a telephone conference before a Principal Member of the Workers Compensation Division of the Personal Injury Commission, the parties agreed upon orders:
“1. The Certificate of Determination dated 21 March 2018 is rescinded for the sole purpose of the applicant filing an appeal pursuant to section 327 (a) and (b) of the 1998 Act for the purposes of obtaining a threshold assessment.
2. The applicant is to file and serve the application to appeal by close of business, 17 September 2021.”
The current appeal was filed pursuant to those orders.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination. The Panel was satisfied on the basis of reports (post- dating the assessment of the Approved Medical Specialist on 23 August 2017 and accordingly not available to the appellant at the time of examination) that a prima facie case of deterioration of the appellant’s condition resulting in an increase in the degree of permanent impairment was established.
Fresh evidence
Section 327(3)(b) provides a ground of appeal against a medical assessment on the grounds of “availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against)”.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement by Mrs Durrant dated October 2019
(b) report by Dr Pilsky dated 27 May 2019;
(c) report by Dr Pilsky dated 14 November 2019;
(d) report by Malcolm Desland dated 24 April 2019;
(e) report by Malcolm Desland dated 3 November 2020;
(f) two reports by Dr Lim dated 30 April 2021, and
(g) letters from Mrs Durrant’s solicitor to the solicitors for the respondent.
The appellant submits that the evidence is relevant to establish that the appellant’s condition had deteriorated, resulting in an increase in the degree of permanent impairment. The appellant submits that the evidence was not available and could not reasonably have been obtained because it postdates the examination by Professor Glozier.
The respondent submitted that the statement by Mrs Durrant did not contain additional relevant information as it substantially comprised subjective opinion evidence by Mrs Durrant as to worsening of her condition. The additional reports did not assist Mrs Durrant’s case on appeal.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a) reports of Dr Pilsky dated 27 May 2019 and 14 November 2019;
(b) reports of Malcolm Desland dated 24 April 2019 and 3 November 2020;
(c) reports of Dr Lim dated 30 April 2021, and
(d) annexure ‘B’ to the statement of the appellant worker dated October 2019.
The respondent also objected to the inclusion in the late material of the report of Dr Pilsky dated 1 November 2015 and report of Mr Desland dated 26 August 2016[1] on the grounds that both predated the MAC assessment. The Panel notes that Dr Pilsky specifically referred to his earlier report in his report dated 27 May 2019. Similarly, the report of the psychologist, Malcolm Desland, dated 24 April 2019 annexes the early report and this was clearly intended by the author to be read in conjunction with the more recent report.
[1] there does not appear to be a report by Malcolm Desland dated 26 August 2016 attached to the appeal document. The Panel understands this to be a reference to the report dated 29 August 2016 by Mr Desland.
However, since both these documents are already in evidence as part of the Application to Resolve a Dispute[2] it is unnecessary to consider whether further copies need to be admitted. The Panel is satisfied to treat these reports as part of the total evidence.
[2] Application to Resolve a Dispute, Page 131.2 (Dr Pilsky, 1 November 2015) and Page 31 (Malcolm Desland, 29 August 2016).
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) statement of the appellant worker and attached documents other than annexure ‘B’, and
(b) letters from appellant worker’s solicitor to the respondent’s solicitor and other addressees.
The information contained in Mrs Durrant’s statement addresses issues that are not relevant to the assessment of whether Mrs Durrant had suffered deterioration resulting in an increase in the degree of permanent impairment. The Panel is satisfied that causation of the deterioration is not relevant to its determination unless the deterioration results from an event or events which sever the chain of causation to the original injury[3]. The correspondence does not provide evidence relevant to the issues in dispute but are in the nature of submissions.
[3] see Secretary, New South Wales Department of Education v Johnson [2019] NSWCA at [53]
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
Dr Douglas Andrews of the Appeal Panel conducted an examination of the worker on 20 December 2021 and reported to the Appeal Panel. Dr Andrews reported:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M2-1432/17 |
| Appellant: | Jessie Durrant |
| Respondent: | Healthecare Australia Pty Ltd |
| Date of Decision: | Insert date of decision |
| Examination conductedby: | Dr Douglas Andrews |
| DateofExamination: | 20 December 2021 |
1. The workers medical history, where it differs from previous records
Ms Jesse Durrant is a 57-year-old woman who lives with her husband, Peter, who works for Sydney Rail. She has a 34-year-old son from a previous relationship who lives in Scotland.
Healthe Care Australia Pty Ltd had employed her from about 2008 until she was made redundant in 2014. Her deemed date of injury was to July 2014 from alleged bullying and harassment between 2012 in 2014.
Authorised Medical Officer, Professor Nicholas Glozier, assessed her for the Workers’ Compensation Commission on 23 August 2017, determining 7% WPI and adjusted by 2% for the effects of treatment.
Ms Durrant argues that her condition became worse after 29 July 2019, when she was granted access to documents from her former workplace. After reading these documents, she felt that she had been misled by her former employer, in that they were not acting in accordance with what they were saying to her; in her view, the documents “confirmed that they were saying one thing to my face; talking about something else behind my back.” This was very distressing for Ms Durrant and has caused her to continue to doubt herself.
There have been no significant changes in her medical history.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Durrant continues to consult the following clinicians:
• general practitioner Dr Kit Lim
• psychologist Mr Malcolm Desland
• psychiatrist Dr Alex Pilsky
She is on an SNRI antidepressant, desvenlafaxine 100 mg a day, and a sleep aid, melatonin 4 mg at night.
She sees her psychologist about once a month, with therapy consisting of behavioural activation, and she has had eye movement desensitisation and reprocessing (EMDR).
Ms Durrant is otherwise well except for hypertension, for which she takes an antihypertensive medication. She does not smoke cigarettes and consumes about one standard drink of alcohol weekly.
Her father died in a motor vehicle accident in 2017. He had a head-on collision with an intoxicated driver who crossed the median line of the road. Ms Durrant said, “I got this dreadful phone call; it threw me off balance.” Initially, it was difficult to get accurate information about the accident as the police were building a case against the other driver. She travelled to Scotland in 2018 to help in settling her father’s estate and assist her mother. She continues to grieve her father’s death appropriately. It is not contributing to her current impairment.
Current symptoms:
Ms Durrant’s mood varies, often reactive to circumstances. She finds that she is sometimes worse in the evening.
She has lost confidence in herself, finds it difficult to make decisions and often “second- guesses” herself.
She is irritable and prone to angry outbursts. She copes poorly with change.
She is anxious, especially when away from home, and has occasional panic reactions. She is still bothered by intrusive thoughts about adverse events in the workplace.
She is generally in bed by midnight, sometimes falling asleep quickly and sometimes lying awake with unwanted thoughts. She previously had distressing dreams, but these have now stopped. She wakes at about 7 AM.
She eats a good diet, her appetite is intact, and her weight is stable. Asked about her libido, she commented, “that is not happening at all.”
Activities of daily living:
Ms Durrant wakes at about 7 AM and gets dressed after a cup of tea. She does some housework; for example, cleaning the kitchen and emptying the dishwasher. She has a cleaner come in who does the bulk of the housework.
She often has a personal trainer come in at about 11 AM, who assists her with an exercise regimen.
Her husband is working from home, and they will often have a late lunch together, after which they will walk the dogs for further exercise.
She subscribes to an online meal service, requiring simple meal preparation only. The quality of her diet is good, and she does not miss meals.
She showers and changes her clothes two or three times a week after prompting and encouragement by Peter.
They do most of their grocery shopping online, although they may go out for missing items.
Before becoming unwell, she was socially active with a group of friends, enjoyed weekend trips away (she mentioned going to the Hunter Valley, Mudgee and Mount Kosciuszko), was an avid reader and enjoyed craftwork such as knitting.
She no longer travels for holidays or to visit family in Scotland, mentioning that this stopped before the Covid lockdown.
Her best friend, Margaret, comes over about once a week, bringing afternoon tea and doing some craftwork together. She doesn’t go out to public venues such as cafés or restaurants.
She is anxious when she leaves her home, preferring to have a support person if possible. However, she can drive the car so long as she stays locally. For example, she will drive a few minutes to the doctor or local shops.
She remains close to Peter, Margaret, and one other girlfriend with whom she keeps in close contact. She also has good relationships with her family in Scotland, having FaceTime contact with her mother and brother weekly and slightly less often with her son. She has lost close friends because of her social disengagement and has lost touch with casual friends.
She can now read a few pages before going back to review. She watches cooking shows such as MasterChef on television but gets distracted easily. She may spend 20 to 30 minutes each day knitting or doing colouring-in.
She has not worked in any capacity since 2014.
I have reviewed all the categories in the PIRS table below. I discuss where my assessment differs from that of other assessors, especially those that are more recent.
Diagnoses:
I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual - Fifth Edition (DSM-5), published by the American Psychiatric Association.
• Persistent depressive disorder with anxious distress
Her depression has been present for more than five years, warranting a diagnosis of persistent depression.
Table 11.8: PIRS Rating Form
PIRS Category Class Reason for Decision Self-Care and personal hygiene 2 Ms Durrant is eating a healthy diet and maintaining an exercise regimen. Although she does some housework, much of this is delegated to a professional cleaner. She neglects hygiene, showering and changing her clothes two or three times a week, often after prompting by her
husband.
Social and recreational activities 3 She has ceased previously-enjoyed activities such as weekends away and social gatherings with friends. She has regular contact with a friend with whom she does craftwork. Her social withdrawal occurred before the pandemic lockdown began. Travel 2 Although she is more anxious doing so, she can travel in the local area; for example, visiting her doctor is going to the local shops. She has given up longer trips. Social functioning 2 She has continued good relationships with her husband, two friends and her family in Scotland. Because of the distance, she maintains contact with her overseas family using FaceTime. She has lost some friends because of her
social disengagement.
Concentration, persistence and pace 3 She has subjective difficulties with concentration and attention. She can persist at hobbies for up to 30 minutes. She reads less often and has to reread pages and passages to maintain focus. She watches reality TV shows,
favouring the cooking genre, but often loses focus and gets distracted.
Employability 5 She hasn’t worked in any capacity since 2014. She has lost confidence and motivation. She is irritable and prone to anger and fears that this would come out in the workplace.
She finds it difficult to trust others. She is anxious when away from home. She is unfit to work in any capacity.
| Score | Median Class | |||||
| 2 | 2 | 2 | 3 | 3 | 5 | = 3 |
| Aggregate Score Impairment 17 | Total | 19 % | ||||
Given that her condition has deteriorated, it is no longer appropriate to make an adjustment for treatment effect. There is no pre-existing condition, and I make no deduction in that regard.
My assessment accords with that of her treating psychiatrist of November 2019.
Her treating psychologist, Mr Desland, determined 22% WPI on 3 November 2020 (classes 3, 2, 2, 3, 4 and 4).
Her general practitioner Dr Lim, in April 2021, also determined 22% WPI (classes 3, 3, 2, 2, 3, and 5).
Regarding self-care and personal hygiene, Dr Pilsky, Dr Lim and Mr Desland all rated her at Class 3. Mr Desland has been working to encourage behavioural activation, and Ms Durrant says that this has been successful. Although she neglects to shower, she is exercising regularly and eating well.
Regarding social and recreational activities, my assessment accords with that of
Dr Lim but Dr Pilski and Mr Desland rated her impairment as mild only. Dr Bilski refers to her gym activities as a social outing. She has a personal trainer who visits her home, and this cannot be considered a recreational activity. Mr Desmond had rated her as a mild impairment but also wrote, “Ms Durrant’s social activities are virtually non-existent.”Regarding social functioning, Mr Desland changed his rating from mild to moderate solely because deterioration in her condition had occurred.
Regarding concentration, persistence and pace, Mr Durrant rated her as severely impaired. This rating is inconsistent with the narrative provided by Ms Durrant today and with her ability to engage in a detailed interview over 60 minutes.
Mr Desland also rated her as severely impaired on employability. I give weight to the severity of her condition and that she has not worked in any capacity for more than five years. It is unlikely that she would cope in any work environment.
3. Findings on clinical examination
I assessed Ms Durrant in her home by video link. The connection quality was excellent, allowing me to do a comprehensive assessment. Her husband acted as a support person but, at my request, and did not participate in the interview.
She presented casually attired in a T-shirt, with short blonde hair. She was friendly and cooperative during the interview.
She said that she has depression and anxiety. Her affect was reactive; she demonstrated a broad range of emotions from humour to distress over the 60 minutes of the interview.
She gave a good account of her history, with a good recall of dates and sequences of events.
There was no evidence of any disorder of thought-form or perception.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. The submissions relevant to the admission of additional evidence are set out above. The appellant’s submissions with regard to deterioration are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that Mrs Durrant had suffered a deterioration in her condition which has led to an increase in the degree of permanent impairment.
In reply, the respondent submits that the evidence does not support the existence of any deterioration.
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[4] 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.
[4] [2006] NSWCA 284
The appellant noted in her submissions the judgement of Campbell JA in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission[5] (Riverina Wines) where His Honour said:
“94 Considering that submission involves, first, construing section 327(3)(a). “Deterioration” of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the “deterioration” that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
[5] [2007] NSWCA 149
The Panel accepts that it is Mrs Durrant’s condition at the time of examination by the then Approved Medical Specialist, Professor Nick Glozier, that.is to be considered as the starting point to determine whether Mrs Durrant had suffered a deterioration. At the time of that examination the Approved Medical Specialist noted that treatment had been effective in improving Mrs Durrant’s condition and made allowance in that regard[6].
[6] MAC, page 11
The AMS diagnosed Mrs Durrant as having suffered a Major Depressive Disorder with significant anxiety due to incidents in the workplace. The AMS reported:
“Her condition has improved slowly since leaving work, as confirmed by the report of her treating clinicians, both subjectively and on repeat questionnaires. This improvement has continued, particularly with the improvement in her sleep to normal duration over the past few months and associated with fewer symptoms and improved functioning. Currently she does not meet the criteria for a Major Depressive Disorder, not having either cardinal feature. She does not meet the criteria for a formal anxiety disorder Post-Traumatic Stress Disorder. She is best described as someone who now meets the criteria for either a Dysthemia or more properly a Major Depressive Disorder in partial remission.”
The AMS noted a strong relationship between Mrs Durrant and her husband, Peter. He noted that Mrs Durrant rose at 7 am and was able to undertake all of her activities of daily living including taking the dogs for a walk:
“She said Peter leaves her tablets out for her, suggesting that she had been forgetful, although this appears to have become a routine. She makes her own breakfast. Twice a week she goes to the gym for personal training sessions and may also do other classes, e.g. spin or Pilates. She has not resumed running or swimming. After the gym she may go to the shops or out for a coffee. She has a few friends including an ex-colleague who is a stay-at-home mum who she meets for a coffee at her home, up at the shops on a weekly basis. Another close friend she sees at the weekend, and continues to see her friend from Scotland again on approximately weekly basis. She enjoys these social outings and walking her dogs. At home she will do the washing, hang it out, go and load the dishwasher, make her own breakfast and lunch, and will do basic shopping. The use the Internet delivery shopping otherwise.”
The AMS noted that Mrs Durrant and her husband would watch TV in the afternoons and would watch movies although Mrs Durrant complained of being distractible. The AMS noted that Mrs Durrant had undertaken a fitness certification course since leaving work and had been able to complete this in the normal time span. Mrs Durrant interacted online with her mother and sister, emailed another friend on a daily basis and used the computer for browsing.
The AMS noted the reports of the treating psychiatrist, Dr Pilsky and the treating psychologist, Malcolm Desland, observing that Mrs Durrant appeared to show an improvement since the date of the reports. The AMS noted that Mrs Durrant was able to shop, cook, clean and look after herself although with some impairment compared to previously. He observed “Further she showed no objective cognitive difficulties within the assessment today and has completed a basic course at a standard level, undermining the idea that ‘reading a newspaper may be a limit”.
With respect to reports of Associate Professor Robertson, the AMS again observed that there appeared to have been improvement since the date of those reports. The AMS said:
“for the reasons given above, she no longer meets the criteria for a persistent depressive disorder although this might also capture the diagnosis of a Dysthymia and there has been a greater antidepressant and psychotherapeutic response.”
The AMS noted that Dr Vickery had identified symptoms warranting a diagnosis of Major Depressive Disorder in partial remission. He agreed with that diagnosis which he said was supported by the DASS scores recorded in the treating psychologist’s notes which indicated at most mild levels of anxiety and stress and only moderate levels of depression which he said “would accord with a subclinical presentation”. The AMS agreed with Dr Vickery’s assessment that Mrs Durrant had not reached maximum medical improvement at the time of his report in March 2016.
The AMS assessed Mrs Durrant as suffering mild impairment within each of the areas of function described in the Psychiatric Impairment Rating Scale (PIRS). The AMS summarised Mrs Durrant’s symptoms in the PIRS as follows:
PIRS Category
Class
Reason for decision
Self-Care and Personal Hygiene
2
She describes herself as such, being able to shop, cook, clean, look after herself, although some impairment compared to previously.
Social and Recreational Activities
2
She walks the dogs several times a day, exercise several times a week, sees friends on more than weekly basis and socialises with her husband. She will go to these on her own, either around to each other’s houses or in the shopping centre.
Travel
2
This is at most, given she describes being able to travel generally where she needs to, although suggested that a trip to Europe acquired her husband’s support as did her trip to the city for this assessment
Social Functioning
2
She lives with a husband Peter and described a strong close relationship. She has frequent contact with her family in Scotland. She can still be irritable and snappy with Peter and can at times be noise-intolerant, although suggested that the intolerance of others, e.g. her friends’ children, is less than it was previously.
Concentration Persistence and Pace
2
She showed no objective cognitive difficulties within the assessment today and is completed a basic course at a standard level.
Employability
4
She reports a number of basic functions that she completes many times a week, and could e.g. be a dog walker or undertake some other task but this would be for only a few hours and she made time struggle with some of the social interaction aspects.
The assessments set out in the PIRS table establish that, the time of examination by the AMS, Mrs Durrant was suffering a mild level of impairment caused by the subject injury which had resulted in anxiety and depression. Mrs Durrant’s condition had improved up to that point with treatment.
The Panel admitted into evidence the document entitled Attachment “B” which sets out numerous aspects of Mrs Durrant’s observations of her level of function. That information postdates the MAC and so would not have been available at that time. The information contained in that document reasonably accurately reflects the information provided to
Dr Andrews upon re-examination on behalf of the Panel.Also admitted into evidence were reports of the treating psychiatrist, Dr Pilsky. In his report dated 27 May 2019 Dr Pilsky recorded his clinical impressions of Mrs Durrant over the years since November 2014 when he first examined Mrs Durrant. Relevantly to Mrs Durrant’s condition in 2017 (the year of Mrs Durrant’s examination by the AMS) Dr Pilsky noted that in March 2017 Mrs Durrant remained “dysphoric in her mood”. She was assessed as suffering severe depression at that time.
Dr Pilsky noted that, following medication changes there had been a degree of stabilisation in Mrs Durrant’s condition Dr Pilsky noted an increased level of distress following the death of Mrs Durrant’s father in a motor vehicle accident in Scotland. He recorded and a slight improvement in mood during 2018 with continued reliance on the support of Mrs Durrant’s husband and the maintenance of an extremely limited social circle.
In that report Dr Pilsky noted psychiatric symptoms including dysphoric mood. He said that the intensity of the dysphoric mood had lessened and that Mrs Durrant at times reported feeling a little better but without sustained improvement. He noted reduced enjoyment of life ruminations, insomnia, anxiety, poor short-term memory and concentration, lack of confidence and indecisiveness and a feeling of “worthlessness and loss of self-esteem”.
Dr Pilsky noted that the latter was due to not only the incidents at work but was also “the aftermath of staying at home for a long time and relying on a husband”. He noted that
Mrs Durrant had become increasingly socially avoidant and preferred to stay at home.Dr Pilsky recorded then current functioning at a level reasonably consistent with that set out in the document Annexure “B”. He reported:
“Mrs Durrant still remains significantly symptomatic as described above and to functioning remains severely affected. She continues to ruminate, has poor self-esteem and suffers from significant lack of confidence and negativity about her future. Her symptoms are maintained by adverse events that have occurred since initial onset of illness such as the tragic death of a father ongoing financial difficulties as a result of her not being able to work.”
He summarised her condition:
“Specifically, Mrs Durrant has been functioning very poorly in terms of self-care, household chores, socialisation, decision-making and has poor short-term memory. Given chronicity of her poor functioning likewise I do not expect this to resolve in the foreseeable future. If anything, further stress of financial difficulties or further losses may exacerbate her current fragile mental state and lead to further episodes of significant major depression with melancholic features which may well require more intensive treatment such as hospitalisation or even more intensive pharmacotherapy and/or electroconvulsive therapy (ECT).”
In a subsequent report dated 14 November 2019 Dr Pilsky noted that Mrs Durrant had recently reviewed documents from her workplace which had caused her further upset.
Dr Pilsky reported that Mrs Durrant continued to rely on her husband, continued to suffer insomnia and was unable to pursue craft activities or do her shopping. He noted feelings of hopelessness and worthlessness. He noted the result of a Kessler Depression Rating Scale which he said showed a high degree of psychopathology. In January 2019 Mrs Durrant had scored in the moderate range on a health questionnaire for assessment of depression.
Mrs Durrant remained on antidepressant medication and continued to consult Dr Pilsky and her psychologist, Mr Desland.Dr Pilsky reported that the intensity of Mrs Durrant’s dysphoric mood had lessened of late but without substantial sustained improvement. He reported symptoms in similar terms to those noted in the earlier report. He recorded slow improvement over the years in insomnia, anhedonia as well as improvement and appetite and levels of fatigue. She no longer had suicidal thoughts but Mrs Durrant remained significantly symptomatic.
Dr Pilsky assessed Mrs Durrant as suffering mild impairment with respect to social and recreational activities, travel and social functioning. He assessed her as suffering moderate impairment with respect to self-care and personal hygiene and concentration persistence and pace. Dr Pilsky described impairment with respect to employability as falling within “Class 5 (Severe Impairment[7])”. Dr Pilsky was of the opinion that Mrs Durrant had no capacity to work.
[7] Table 11.6 of the Guidelines applies the descriptor "severe impairment" to Class 4 impairment. Class 5 impairment adopts the phrase "totally impaired".
Dr Pilsky was asked to provide his opinion as to “Whether or not there is a deterioration in the worker’s condition from your previous reporting”. Dr Pilsky reported:
“No. While Mrs Durrant did indeed report distress upon reviewing the documents from Healthe Care, my opinion is that this distress did not produce a permanent deterioration in her condition. Whilst by all accounts she was in fact distressed and disappointed, by the time I saw her on 14 November for the purpose of this report her mental state has returned to its usual pattern as described above and I detected no significant change in her functioning. In other words she displays similar symptoms and maintains a similar degree of impairment to what she was like prior to the recent stress or viewing the documents.”
The Panel accepts that Dr Pilsky is, at this point, expressing the view that the exposure to the documentation from the workplace has not caused deterioration in Mrs Durrant’s condition. However, Dr Pilsky does report symptoms and behaviour which reflect a deterioration in her condition since the assessment by the AMS in August 2017. Dr Pilsky notes the development of feelings of worthlessness and loss of self-esteem which he attributes at least in part to “the aftermath of staying at home for a long time and relying on her husband”. He also notes that her mental state now precludes her from employment.
A report dated 24 April 2019 from the treating psychologist, Mr Malcolm Desland, was admitted by the Panel. Mr Desland said:
“Due to the time passed in the absence of the original workplace stressors I agree with Associate Professor Robertson’s Diagnosis of Persistent Depressive Disorder with specifiers of anxious distress with idiopathic features of trauma. This is now the more accurate diagnoses [sic].”
Mr Desland noted that Mrs Durrant’s DASS 21 scores with regard to depression, anxiety and stress had improved up to July 2016. He noted positive response to treatment with improvement in functioning “in the short term”. And with improved mood. However,
Mr Desland felt that Associate Professor Robertson’s assessment in 2016 of 17% WPI accurately reflected Mrs Durrant’s current level of functioning in 2019.A report dated 30 April 2021 by a consultant psychiatrist, Dr Lim, was admitted into evidence by the Panel. Dr Lim examined Mrs Durrant on 22 April 2021. He noted reports from
Dr Pilsky, Mr Desland and Associate Professor Michael Robertson. Dr Lim recorded that
Mrs Durrant had required “a degree of reassurance and redirection and needed moments at times to pause for a break” in the course of her mental state examination. He reported:“Her degree of emotional reactivity was restricted to the dysphoric range. She described a number of symptoms of depression including low mood, anergia, anhedonia and disruptive sleeping and eating patterns. She reported feelings of worthlessness and hopelessness.”
Dr Lim recorded Mrs Durrant’s current level of functioning which included managing basic self-care but neglecting to change clothes every day and to take a shower daily without prompting from her spouse. Mrs Durrant was able to do some housework with reliance on convenience meal plans. He noted that Mrs Durrant had lost some friendships as result of social withdrawal, seeing a girlfriend once a fortnight. Mrs Durrant reported that she was constantly anxious and preoccupied by work difficulties and a sense of injustice. She reported frequent lapses of memory and restriction on travel.
Dr Lim diagnosed Mrs Durrant as suffering a Major Depressive Disorder. He reported:
“She presents with clinically significant mood symptoms that are persistent, that affect her most of the time, and which exert an adverse impact on her psychosocial functioning. In particular, she reports feelings of depression, feelings of worthlessness and hopelessness, a degree of guilt for her situation, historical fleeting suicidal ideation and disruption to her sleeping and eating patterns. She further presents with anergia and anhedonia.”
Dr Lim was of the opinion that Mrs Durrant had experienced a deterioration in her Major Depressive Disorder associated with a worsening of her psychosocial functioning since the MAC. He reported:
“I am of the opinion that it is likely that the deterioration has been insidious and occurred prior to the events described of 2019 [sic]. I am of the opinion that this deterioration can be attributed to the ongoing disabilities that Mrs Durrant experienced as a result of her Major Depressive Disorder affecting her functioning and impact on her ability to identify and engage in alternative and positive goals that would have helped her overcome her grievance. In other words, the grievance has become more entrenched. I would regard this as being the primary course of her deterioration rather than the discrete event that she described having been exposed to the emails in 2019.”
Dr Lim recorded activities of daily living which he said illustrated a worsening of the level of impairment due to deterioration.[8]
[8] Report 30 April 2021, Page 15
The Panel, having considered the level of complaints recorded in 2019 to the treating psychiatrist and psychologist and those reported to Dr Lim in 2021 contrast with the clinical picture described by the AMS in the MAC in August 2017. The Panel accepts that it appears from the whole of the evidence that there has been a deterioration in Mrs Durrant’s condition since the MAC. The Panel accepts that, due to the chronicity of her condition, Mrs Durrant has suffered increased levels of feelings of worthlessness and self-esteem.
The Panel has considered the report of the Medical Assessor, Dr Andrews, and accepts that Dr Andrews’ assessment is soundly supported by the current evidence. As noted above, the AMS assessed Mrs Durrant as suffering mild impairment with respect to all areas of function to be considered pursuant to chapter 11 of the Guidelines with the exception of employability which was assessed as Class 4 (severe impairment).
The symptoms recorded by Dr Pilsky, Dr Lim and Mr Desland are largely reflected in the findings of Dr Andrews upon re-examination and the Panel accepts that the deterioration has led to an increase in the level of impairment with respect to the areas of function, social and recreational activities and concentration, persistence and pace which now appear to reflect a moderate level of impairment (Class 3) and employability which now attracts an assessment of total Impairment (Class 5).
Accordingly, Mrs Durrant is assessed in accordance with Chapter 11 of the Guidelines as follows:
Self-care and personal hygiene – mild impairment. Mrs Durrant is able to live independently and look after herself adequately although casually relying on takeaway food or her husband for provision of meals with occasional omission of showering or changing of clothes.
Social and recreational activities – moderate impairment (Class 3). As noted by Dr Andrews Mrs Durrant had ceased previously-enjoyed activities such as weekends away and social gatherings with friends prior to the onset of the Covid pandemic. She has regular contact with a friend with whom she does craftwork.
Travel – mild impairment (Class 2) – Mrs Durrant is able to travel locally without assistance and has been able to travel overseas the assistance of her husband who support is also needed for journeys outside the local area.
Social functioning – mild impairment (Class 2) - Mrs Durrant has a strong relationship with her husband, frequent contact with her family in Scotland and has maintained friendships with some level of improvement in her tolerance of others.
Concentration, persistence and pace - moderate impairment (Class 3) - Mrs Durrant has subjective difficulties with concentration and attention. She is able to persist with her hobbies for up to 30 minutes at a time but reads less often and has to reread pages and passages to maintain focus. She watches reality TV shows, favouring the cooking genre but often loses focus and gets distracted.
Employability - totally impaired (Class 5) - Mrs Durrant has lost confidence and motivation. She is irritable and prone to anger, fearing this would come out in the workplace. She is anxious when away from home. Her anxiety and depression render her unfit to work in any capacity.
The median class score is determined pursuant to Chapter 11.14. The relevant scores ranked in order are as follows:
2 2 2 3 3 5 Total
17Median
(Rounded)
3
The Panel has accepted that Mrs Durrant’s condition has deteriorated, notwithstanding the effects of treatment. It is therefore inappropriate to apply any additional level of impairment pursuant to Chapter 1.32 of the Guidelines.
Accordingly, Mrs Durrant is assessed as having 19% WPI as result of the subject psychological injury. As noted by the Approved Medical Specialist in the MAC there is no basis for any deduction pursuant to section 323 of the 1998 Act. The Panel accepts that any prior psychological condition had resolved prior to the commencement of difficulties in the workplace.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 August 2017 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
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 Professor Nick Glozier 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. Psychological injury | 2/07/14 | Chapter 11, | Chapter 1 | 19% | nil | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
Mr William Dalley
Member
Dr Douglas Andrews
Medical Assessor
Dr Julian Parmegiani
Medical Assessor
7 January 2022
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