Elms v State of New South Wales (Western NSW Local Health District)
[2022] NSWPICMP 494
•1 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Elms v State of New South Wales (Western NSW Local Health District) [2022] NSWPICMP 494 |
| APPELLANT: | Allan James Elms |
| RESPONDENT: | State of New South Wales ((Western NSW Local Health District) |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 1 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment under one of the categories under the Permanent Impairment Rating Scale (PIRS) namely, social functioning in circumstances where Medical Assessor (MA) made an error in the history; Appeal Panel accepted there was an error in the history but found the assessment of class 3 was still the best fit; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 August 2022 Mr Allan James Elms (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Clayton Smith, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 29 July 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 has conducted a review of the original medical assessment but limited to the ground(s) 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).
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.
The appellant did not request a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
Fresh evidence
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) supplementary statement of the appellant dated 15 August 2022.
The respondent did not object to the admission of the supplementary statement.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a) supplementary statement of the appellant dated 15 August 2022.
EVIDENCE
Documentary evidence
The Appeal 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.
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 matter was referred to the MA for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of Injury: 30 January 2019 - deemed
Body part/s referred: Psychiatric/psychological disorder
Method of assessment: Whole person impairment”
The MA issued a MAC certifying as follows:
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psycho-logical | 12/08/2019 | 11, page 55-60 | 14 | 24% | N/A | 24% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:
“Table 11.8: PIRS Rating Form
| Name | Allan James Elms | Claim reference number (if known) | W1263/22 |
| DOB | XX/XX/1967 | Age at time of injury | 53 |
| Date of Injury | 30 January 2019 - deemed | Occupation at time of injury | Security officer, emergency department, Bathurst Hospital |
| Date of Assessment | 13/07/2022 | Marital Status before injury | Defacto |
| Psychiatric diagnoses | 1.PTSD | 2.Persistent depressive disorder | |
| 3. | 4. | ||
| Psychiatric treatment | Multiple medications (high dose) under supervision of a psychiatrist, hospitalisation, rTMS, group therapy program | ||
| Is impairment permanent? | Yes | No (circle one) | |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 3 | Mr Elms lives independently but requires regular support to ensure a minimum level of hygiene and nutrition. He is unmotivated to look after herself, and showers infrequently. He relies on family and his ex-partner for most of his meals. | |||||||||
| Social and recreational activities | 3 | Mr Elms rarely goes to social events and mostly when prompted by family. His social circle is limited to his immediate family. He rarely goes to recreational venues or restaurants. He lacks the motivation to engage in hobbies such as woodworking. He is unable to tolerate social events such as family Christmas when he left after 30 minutes. | |||||||||
| Travel | 2 | Mr Elms is able to travel locally without a support person. | |||||||||
| Social functioning | 3 | Mr elms existing relationships have been severely strained and he has lost some friendships. He has separated from his de facto partner since the injury. He has maintained an enduring and supportive relationship with his ex-partner and his daughter. His ex-partner has full custody of his daughter as Mr Elms is unable to care for her independently. He maintains an enduring relationship with his sister and brother-in-law. | |||||||||
| Concentration, persistence and pace | 3 | Mr Elms is unable to read books. He spends time scrolling on his mobile phone. He watches television with varying levels of attention. He does not engage in intellectually demanding activities. He is easily overwhelmed by noise and external stimuli. He is forgetful. No lapses of concentration were observed during our interview although he appeared tired. | |||||||||
| Employability | 5 | Mr Elms is totally impaired. He cannot work at all. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 3 | 3 | 3 | 3 | 5 | =3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| 2+2 | +2 | +3 | +3 | +5 | 19 | 24 | |||||
The worker appealed.
In summary the appellant submitted that the MA made a demonstrable error and/or made an assessment on the basis of incorrect criteria when he erred in his assessment under one of the PIRS categories, namely Social Functioning when he assessed a Class 3 and a Class 4 should have been assessed.
In summary, the State of New South Wales (Western NSW Local Health District) (the respondent) submitted that the MA did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the MA is to conduct an independent assessment on the day of examination. The MA is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The MA took a history which he recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Elms was employed as a security officer at Bathurst Hospital emergency department for 20 years. Over that time he said he was repeatedly exposed to trauma in the course of his employment, including assaults, and witnessed distress. He said he was subject to bullying and harassment by a colleague and was later falsely accused of assaulting a patient. He said after this allegation he felt too distressed to continue work. He has not returned to work in any capacity since.
He said he first developed symptoms of anxiety after he was assaulted and bitten in 2013. He said his anxiety fluctuated and progressed over the years and in the context of alleged bullying, harassment and allegedly unfounded claims of harassment. He said he was diagnosed with post traumatic stress disorder by Dr Frukacz, a psychiatrist, in 2020. He said he has also been depressed since leaving work.
He said he has been on sertraline 100 mg (an antidepressant) since 2014 after he was assaulted in the emergency department in 2013. He said as recently as 5 months ago he was on an extreme dose of sertraline 700 mg, 1500 mg of quetiapine and 5000 mg of sodium valproate. He said he tried treatment with transcranial magnetic stimulation without effect. He said he was trialled on aripiprazole briefly. He said he has seen a number of psychologists over the years although not recently. He said his been seeing a psychiatrist regularly Dr Malik fortnightly. He said he has been hospitalised at St John of God Private Hospital in Richmond several times for 3 weeks at a time and also a 6-week admission. He said Dr Malik has recently recommended readmission to hospital for treatment due to an exacerbation of depressive symptoms. He said he has attended outpatient treatment groups at St John of God Private Hospital Richmond.
· Present treatment:
Mr Elms said he is seeing a psychiatrist Dr Malik every fortnight. He said he is not seeing a psychologist. He said he takes Panadeine forte two daily for the last 12 months due to medication-induced diarrhoea. He said he takes 5 to 10 mg of diazepam as required every other day. He said he takes 300 mg of quetiapine at bedtime. He said he takes prazosin 8 mg at 6 PM and 14 mg of prazosin at 9 PM with 10 mg of melatonin for insomnia and trauma-related nightmares. He said he has been prescribed modafinil 100mg, possible for anergia and somnolence and to augment antidepressants, or to treat sleepiness associated with obstructive sleep apnoea.
· Present symptoms:
Mr Eglinton said he has recurrent intrusive thoughts about the things that happened to him at work. He said he has intrusive memories of events in the emergency department with traumatic themes. He said he is hypervigilant and worries about his daughter and her safety all the time. He told me “I’ve seen too many bad things happen in the Emergency Department”.
He said he has exaggerated physical anxiety symptoms and recurrent panic attacks. He said for example he is triggered by children screaming after witnessing a baby brought to the emergency department after being burnt with boiling water.
He said he hates going to bed because he gets night terrors. He said he usually sleeps in a recliner. He said he is usually awake around 3 AM restless and scared.
He said being around people makes him anxious and edgy. He said he startles easily. He said he has to wear incontinence pads because he gets urinary incontinence in fight or flight situations.
He said he is unmotivated and lacks drive or interest in previously enjoyed activities. He said he feels tired.
He said his temper has improved to the point that he still gets frustrated but is not losing his temper. He said his mood is usually depressed. He said he has had periods of suicidal thoughts including counting the trees which he could drive into. He said he still has suicidal thoughts occasionally but not as frequently as before. He said he manages them by taking diazepam and “trying to forget about it”.
· Details of any previous or subsequent accidents, injuries or condition:
He denied any psychiatric history prior to 2013. He denied exposure to developmental trauma.
Mr elms said he has been abstinent from alcohol for a long time. He denied illicit or recreational drug use. He said around the time he developed symptoms of post-traumatic stress disorder he started gambling in 2014 and got himself into debt. He said this peaked in 2018 and 2019 when he was particularly stressed at work. He said his access to money is now strictly controlled as is his access to Internet gambling.
· General health:
He said he has type II diabetes mellitus. His diabetes has been poorly controlled at times. Mr Elms attributed this to comfort eating. I note from the documentation he has sleep apnoea, psoriasis, and irritable bowel syndrome. He had an L4/5 discectomy in 2016. He denied any other significant medical problems.
· Work history including previous work history if relevant:
Mr Elms said he worked as a security officer at the Bathurst hospital for 20 years and was asked to function in a range of roles including quasi-nurse, receptionist and security guard.
He completed school in year 10 and worked as a wool classer briefly before driving for 10 years. He has no tertiary qualifications.
· Social activities/ADL:
Mr Elms said he rents alone in Eglinton New South Wales. He said he used to live with his de facto partner of 12 years but they separated after the injury. He said they have an 11-year-old daughter who lives with her mother full time. He said he is unable to care for her independently overnight due to night terrors. He grew up in Bathurst and has an older sister. His parents separated when he was a child and his father died of cancer in 2007.
Mr Elms said he talks to his ex-partner every day. He said she will spend several hours with him on a Saturday or Sunday. He said his ex-partner and daughter bake for him and bring food. He said his ex-partner and his sister often make his meals and put them in the freezer. He said he forgets what he is doing when cooking and burns things. He said he used to love cooking but now finds it a chore.
He said he showers twice a week if he is lucky because he forgets to. He said he brushes his teeth some days. He said he last saw a dentist in November 2021 because a crown fell out. He said he is not exercising. He said he may go for a walk on his property to the mailbox and back about a 500m round trip.
He said he tries to maintain his lawn and his brother-in-law helps. He said his brother-in-law comes to his property and checks on him. He said he is a member of the RSL and has been once this year late at night on his own to gamble. He said he loved woodworking in the past and is well equipped with tools but is unable to bring himself to do it anymore. He said he does his own washing. He said he tries to keep his house clean. He said the insurance company is going to pay for a cleaner to help with the cleaning.
He said he is okay to drive on his own locally. He said if the trip is too long his mind wanders. He said his longest trip over the last 12 months was 25 to 30 km when he travelled to Orange with his ex-in-laws. He said they stopped halfway. He said his ex-partner was driving him to St John of God Hospital in Richmond for treatment.
He said he is unable to attend his daughter’s guitar, acting and girl guides activities. He said he finds them overwhelming and he cannot tolerate crowds. He said his ex-partner videos her performances for him. He said the noise and crowds bring back memories of the emergency department and of people yelling and screaming in distress.
He said he was able to go out to a restaurant with his daughter and ex-partner for a birthday dinner. He said it was a quiet restaurant and they went during the week. He said he had to position himself in the corner where he could see everything. He said he only went for his birthday because his daughter wanted him to. He said he would go to a restaurant every 6 months.
He said he separated from his partner around July 2021 and she stayed with her sister. He said one of her friends helped him find a house to rent. He said he moved several months ago but has not unpacked yet. He said when he first moved he moved to a suburban area and was not coping. He said he now feels more comfortable on acreage.
He said if he has to go into Bathurst he will time his visits and go late on a Sunday night or Tuesday night or he will ask his ex-partner to drop by the shops for him. He said he generally goes to the shops once a month and is in, out, and gone. He said he will shop for necessities only and avoids shopping centres. He said he went to his sisters at Christmas time in Bathurst and only stayed half an hour.
He said he spends most of his time at home. He told me “I don’t know where the time goes, I start to do something and I forget what I’m doing. I get confused and frustrated with myself because I cannot get things done.” He said he sits in front of the television which is on but he is often not paying attention. He said he used to enjoy reading but now cannot absorb the information and has stopped. He said he has his bills set up to be paid by direct debit. He said his ex-partner looks after his money because of his problems with gambling. He said he had difficulties with gambling for a while as a way of escaping his mental health issues. He said his daughter has blocked his phone so he cannot spend money on online gambling. He said he spends a lot of time scrolling through his phone. He said he used to love music but has not been listening to music recently.
He said he has cut himself off from all but his immediate family. He said he has a friend who occasionally rings but he does not answer. He said he has met a few acquaintances who were also patients at St John of God Hospital that understand one other.”
The MA has recorded a detailed history much of which is broadly consistent with the other evidence that was before the MA. However, there is an error in the recording of the history in terms of the relationship that the appellant maintains with his ex-partner. The Appeal Panel has admitted the further statement of the appellant which details that the relationship that is maintained is with his daughter and not with his ex-partner with whom interactions take place only to facilitate the appellant’s relationship with his daughter.
The MA conducted a mental state examination and recorded his findings as follows:
“Mr Elms was a heavyset man in casual attire. His hair was clippered with an unkempt beard. He taken no particular care with his appearance. He was interviewed from his home via video link.
He was cooperative with reduced spontaneity. His affect was restricted. His eye contact was poor. He described his mood as depressed.
His speech was of normal rate, tone and volume.
His thought content reflected trauma themes including hypersensitivity to reminders of his former employer and increased vigilance to threat. He described depressive themes such as recurrent suicidal thoughts. There was no evidence of psychotic symptoms.
He was alert and oriented. I estimated his intelligence to be in the low average range. His cognition was not formally tested. There were no lapses of concentration or disassociation during the interview but he appeared tired. His insight and judgement were intact, and he claimed to be adherent to treatment as prescribed.”
The MA made a diagnosis as follows:
“summary of injuries and diagnoses:
Mr Elms meets DSM-V criteria for post traumatic stress disorder, chronic.
The diagnosis of post-traumatic stress disorder was made on the basis of exposure to traumatic incidents meeting Criterion A for post-traumatic stress disorder.
Consistent with post-traumatic stress disorder, Mr Elms developed repeated disturbing memories, thoughts and images of the trauma; distress when reminded of the trauma or cues which symbolised or were related to the trauma; an aversion to reminders of the trauma; physical anxiety symptoms when reminded of the trauma; avoidance of thoughts about or activities which reminded him of the trauma; loss of interest in previously enjoyed activities; emotional changes including depressed and angry mood, insomnia, impaired concentration and hypervigilance. The symptoms have persisted for more than 3 months and are not attributable to another cause.
Mr Elms meets DSM-5 criteria for a persistent depressive disorder. He reported depressed mood and loss of pleasure in previously enjoyed activities for most of the day for more days than not for at least two years. He reported insomnia, low energy, apathy, poor concentration, and suicidal thoughts. He has never been without the symptoms described above for more than two months at a time.”
The MA noted the appellant to be consistent in his presentation as follows:
“Mr Elms presentation was consistent with an anxious and depressed person.”
The MA explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The appellant complains that the MA has erred in respect of one of the categories assessed, namely, Social Functioning.
The Panel cannot interfere with these ratings absent error by the MA. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria.
In respect of Social Functioning, Table 11.4 of the Guides provides as follows:
“Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4
Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The MA assessed a moderate impairment at Class 3 with the following reasoning:
“Mr Elms existing relationships have been severely strained and he has lost some friendships. He has separated from his de facto partner since the injury. He has maintained an enduring and supportive relationship with his ex-partner and his daughter. His ex-partner has full custody of his daughter as Mr Elms is unable to care for her independently. He maintains an enduring relationship with his sister and brother-in-law.”
The appellant submitted that a Class 4 or severe impairment should have been assessed.
The IME qualified on behalf of the appellant, Dr Suman assessed Class 4. The MA was required to make an independent assessment using his clinical judgment on the day of assessment. He explained why his opinion differed as follows:
“While Dr Suman assessed social functioning as a class 4 severe impairment, Mr Elms has maintained enduring and supportive relationships with his immediate family, including his ex-partner from whom he separated and their relationship was severely strained. They have nonetheless found an amicable, enduring and supportive friendship and co-parenting arrangement since the separation. He has not lost his partner and he has regular contact with his daughter although her mother is the primary caregiver. This is more consistent with a class 3 moderate impairment.”
The Appeal Panel has taken into account the appellant’s further statement. While it is incorrect to characterise the relationship with his ex-partner as enduring and supportive and more correct to characterise it as an interaction that is maintained to facilitate the appellant’s relationship with his daughter, the Appeal Panel considers that taking all of the evidence into account, including the appellant’s further statement, the best fit is still a Class 3 moderate impairment according to the criteria in the Guides. The appellant has separated from his partner but he is able to care for his daughter when she is with him. He also maintains strong and supportive relationships with other members of the extended family. The Appeal Panel considers that a moderate impairment or Class 3 is the best fit and accordingly the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 July 2022 should be confirmed.
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