Eureka Operations Pty Limited t/as Coles Express v Ross

[2023] NSWPICMP 326

DETERMINATION OF APPEAL PANEL
CITATION:	Eureka Operations Pty Limited t/as Coles Express v Ross [2023] NSWPICMP 326
APPELLANT:	Eureka Operations Pty Limited trading as Coles Express
RESPONDENT:	Liza Ross
Appeal Panel
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	14 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing social functioning; Held – Medical Assessment Certificate is revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Andrews (Medical Assessor) dated 20 January 2023.

2. The Medical Assessor assessed a 17% whole person impairment (psychological) as a result of injury on 30 January 2020 (deemed date), from which he deducted one tenth for a pre-existing condition, to arrive at 15% whole person impairment. He assessed a class 2 impairment in respect of the psychiatric impairment rating scale, Social functioning.

3. The appellant employer alleges demonstrable error and the application of incorrect criteria with respect only to the assessment of Social functioning. It says that the assessment is inconsistent with the Medical Assessor’s own findings, that the evidence justified a class 1 impairment rather than class 2, and that the Medical Assessor took into account an irrelevant matter, namely the lack of outings to cafes and movies, which it says is relevant to the scale, Social and recreational activities.

4. The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

Submissions

1. The parties made written submissions which have been taken into account. They are summarised below.

2. The appellant employer submits as follows:

   (a)    the criteria for a class 2 impairment include a finding that existing relationships are strained. The history taken by the Medical Assessor did not include a finding of such strain. On the contrary, he recorded ‘good relationships’ with the worker’s daughters, a neighbour in Albury, two friends in Wagga Wagga, her mother and four out of five sisters – albeit she was estranged from the fifth sister for reasons other than psychological injury;

   (b)    those findings are inconsistent with a class 2 impairment. They are consistent with a class 1 impairment;

   (c)    the diminution in the worker’s attendance at cafes and movies, referred to at page 9 of the Medical Assessment Certificate, is ‘appropriately assessed according to the Social and Recreational Activities category’, and

   (d)    in assessing a class 2 impairment in his report of 22 February 2022, Dr Allan did not take a history which supported his findings that the worker had lost friends. He relies on the fact that the worker remained single, but the decision to do so predated injury and does not result from injury.

3. The respondent worker submits in summary as follows:

   (a)    the employer has not demonstrated that the Medical Assessor applied incorrect criteria;

   (b)    the criteria for a class 2 impairment are examples only;

   (c)    when he assessed the worker on 16 February 2022, Dr Allan noted that the worker had lost friends, and

   (d)    the survival of good relationships with her daughters, mother and others does not contradict the history taken by Dr Allan that the worker had lost friends, and does not compel the assessment of a class 1 impairment. The fact that she could identify only three friends outside her family supports a class 2 impairment.

Class 2 impairment - criteria

1. The Guidelines prescribe the following criteria for class 1 and 2 impairment with respect to 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

1. The task of the Medical Assessor was to determine into which class the worker’s impairment best fit, having regard to the history taken, his examination on 18 January 2023, ongoing symptoms and the other evidence before him.

2. To select a class 2 impairment, he had to find that existing relationships were ‘strained’. The criteria give an example of tension and arguments with a partner or close family member, and loss of some friendships, though as the worker submits, that is only an example of strained relationships.

3. To select a class 1 impairment, the Medical Assessor had to find that the worker had no difficulty in forming and sustaining relationships.

4. The Medical Assessor took a history at [4] of difficult inter-personal relationships at work from April 2019 till 30 January 2020, when the respondent left work and did not return. He diagnosed persistent depressive disorder with anxious distress at [7], which he considered to be an exacerbation of a psychiatric condition of long standing at [8e].

5. Under the heading, ‘Social activities/ADL’, he noted:

   “She has continued good relationships with her daughters, a woman who was her neighbour in Albury, two friends in Wagga Wagga, her mother and four of her five sisters. She is estranged from one sister who had had a sexual relationship with
   Ms Ross’s ex-husband, precipitating the breakup of Ms Ross’s marriage’ [in 2010]”

6. In the psychiatric impairment rating scale (PIRS) rating form, he gave the following reasons for assessing a class 2 impairment in respect of Social functioning:

   “She remains close to her daughters, a previous neighbour from Albury, two friends in Wagga Wagga, her mother and four of her five sisters. Contact with her Wagga Wagga friends and family has been by telephone or social media. She has a long-standing estrangement from one sister for reasons unrelated to her recent mental health problems.”

7. In the same form, he noted that prior to injury the worker regularly attended cafes, restaurants and movies, but after injury would only go to a café with a girlfriend. This, however, he noted in relation to the scale, ‘Social and recreational activities’.

8. We are unable to identify any history of strained relationships in the Medical Assessment Certificate. Dr Allan’s report of 22 February 2022 was before him, though he commented only on the previous report of 25 June 2020. In the PIRS form attached to the later report,
   Dr Allan noted that the worker had lost friends, though he gave no examples. It is unclear whether the Medical Assessor took that into account in assessing Social functioning.

9. It was the task of the Medical Assessor to take and rely on an up to date history in order to make his assessment. He took no history of a loss of friends. On the contrary, the history he took was one of continuing friendships and social relationships. There was no basis in that history for a finding that existing relationships were ‘strained’, as is required for a class 2 impairment.

10. There is no evidence that the Medical Assessor questioned the worker as to what friendships Dr Allan had described as being lost, or whether those losses remained as at the date of examination by the Medical Assessor.

11. In all the circumstances, we are satisfied that the evidence did not support a class 2 assessment. That demonstrates error on the face of the certificate, and the application of incorrect criteria, and necessitates the setting aside of the Medical Assessment Certificate. Whether a finding of ‘No deficit, or minor deficit attributable to the normal variation in the general population’ is appropriate, as submitted by the employer, is an issue that requires further examination of the worker. The worker was referred to a medical member of the Panel for further assessment.

12. Though it is strictly unnecessary to consider any further ground of appeal, we indicate for the benefit of the parties that we can identify no error in the Medical Assessor’s consideration of a diminution of social activities after injury, such as attendance at cafes, restaurants and movies, in the context of ‘Social and recreational activities’. Such activities are relevant to an assessment of that scale. There is no evidence that they were taken into account in assessing ‘Social functioning’.

Report of Medical Assessor Blom

1. The report of Medical Assessor Blom follows:

   “1. Summary of Workers medical history

   Ms Ross was seen via videoconference, using the Teams application. The quality of the video was at best moderate, but adequate for the purpose of assessment. Ms Ross had no difficulty managing the application. Ms Ross was accompanied throughout the interview by her daughter Katie, with whom she lives.

   Ms Ross essentially confirmed the history, leading up to her injury, taken by
   Dr Andrews. I did, however, attempt to clarify and elaborate further the history of her illness since the injury, as this was only briefly addressed by Dr Andrews.

   In summary Ms Ross was working as a customer services representative at Coles Express in Albury at the time of the injury. She had difficulties, on and off, over a 12-month period, with a colleague Emily who was designated as acting manager when the store manager, Dan, was away. Essentially Ms Ross experienced Emily as aggressive and demanding and felt that she treated her unfairly. This occurred in April 2019 and again in October 2019 when Dan was away and on one occasion Ms Ross complained directly to Emily about her behaviour. In January 2020, Dan was again away, and
   Ms Ross experienced further difficulties with Emily which were made much worse when Ms Ross inadvertently substantially under-charged a customer. She felt Emily’s response was unreasonable, aggressive and humiliating particularly as Ms Ross felt she belittled her in front of customers. She subsequently took time off work and has not returned. At the time of her injury she experienced substantial anxiety, panic attacks and generally felt overwhelmed. She said that she had previously experienced depression and believe that this experience “felt different” nevertheless she described significant symptomatology consistent with a depressive disorder, including feelings of hopelessness, worthlessness and powerlessness, loss of motivation, disturbed sleep, low energy and fatigue and substantial difficulties with concentration, focus and memory. She did not experience any occasions of suicidal ideation. She became markedly avoidant and withdrawn as she found social contact made her anxious. She attended her general practitioner and was referred to a psychologist. She only attended the psychologist however on four occasions because, she said, the insurer refused to pay for further treatment. She has not had psychological treatment since this time. She had already been taking venlafaxine, 75 mg/day, prescribed by her general practitioner for previous episodes of depression and anxiety and this was increased to 150 mg/day. As well, she was initiated on the beta-blocker agent, propranolol, at a dose of 10 mg as required.

   She stated that her symptoms essentially remained unchanged over the next 2 ½ years, however, I note that in June 2020 she undertook a business studies course through Griffiths University. She believed that this was a bachelor’s degree level course. This was undertaken at the encouragement of her general practitioner. However, she struggled with the course due to difficulties with concentration and motivation although persisted with it through till late 2021 when eventually she stopped.  it would appear that there was only limited change in her symptoms over this period, but it is likely that her anxiety actually deteriorated because of her struggles with the course and feelings that she was “a failure” because of the difficulties she had with studying. Throughout this time, while she continued to consult her general practitioner on a regular basis there was no change in her treatment regime. Ms Ross herself said that she was not particularly keen to increase her venlafaxine because of the difficulties she that she had had in the past in attempting to cease it.

   In October 2022, she moved from Albury to Wagga Wagga to live with her daughter Katie. Katie had encouraged this because she wished to assist her mother with her recovery program and because she was concerned about how she was managing alone. Since she has been living with Katie Ms Ross says that she feels more supported and as a consequence her feelings of hopelessness and despair have reduced. She says that Katie encourages her engagement with activities and her general self-care.

   2. Additional history since the original Medical Assessment Certificate was performed.

   Ms Ross said that she felt that there have been no significant changes in her circumstances, overall symptomatology or impairment since the review by Dr Andrews.

   3. Current symptoms.

   Ms Ross described ongoing and persistent feelings of anxiety. She said that she has panic attacks approximately 3/week. She struggles with motivation and has low energy and experiences regular fatigue. Her sleep continues to be disturbed with both initial and interval insomnia. She continues to struggle with her appetite but said there has been no significant weight change in the last six months. She denies suicidal ideation but says that she continues to feel down and “stuck” with feelings intermittently of worthlessness. Her concentration and memory continue to be problematical for her.

   4. Current treatment.

   There has been no change in her treatment since her consultation with Dr Andrews. She continues to consult her general practitioner, Dr Ayman Mourtada via phone, approximately every three months and attends his practice for a face-to-face consultation every six months. Her current medication is: venlafaxine, 150 mg/day and propranolol, 10 mg as required

   She also takes Rabeprazole for oesophageal reflux and atorvastatin for hypercholesterolaemia.

   5. Findings on clinical examination.

   Ms Ross was seen via videoconference. I was only able to view her head and shoulders. However, it appeared that she was neatly attired, and her hair was combed. She was clearly quite overweight. She was an extremely discursive historian who needed to be redirected on multiple occasions.

   She was clearly anxious and easily became distressed and somewhat overwhelmed. She did not appear overtly depressed and there was no evident flattening of her affect. She was not suicidal at the time of this interview.

   There was no evidence of psychosis, and in particular no delusions, hallucinations or formal thought disorder.

   While Ms Ross expressed her symptomatology in a somewhat dramatic fashion, I did not believe that she was dissembling or attempting to exaggerate.

   She was vague and discursive although maintained focus through a 60-minute interview.  She struggled with her memory of events and chronology on occasions.

   6. Diagnosis.

   I agree with Dr Andrews diagnosis - that is Persistent Depressive Disorder with anxious distress. As in Dr Andrews’ interview, Ms Ross denied the existence of a depressive disorder, but the history and symptom complex are diagnostically best explained by this diagnosis.

   7. Review of Matters Under Appeal.

   The only matter under appeal related to the Medical Assessment of the PIRS scale, Social Functioning. This had been rated class 2 by Dr Andrews, but this was disputed by the Appellant Employer.

   Ms Ross stated that she currently lives with her daughter Katie. She denied any conflict or strain in the relationship with Katie. She continues also to have an ongoing close relationship with her other daughter Alana, and Alana’s partner, who live in Albury. She denied specifically on questioning any tension.

   She has limited contact with friends because of her anxiety and because she has moved from Albury to Wagga Wagga, but said that there has been no particular disruption in the relationships in that she still contacts them from time to time via the Messenger application. She has also been contacted by old friends whom she knew from Wagga Wagga previously and has spoken with them on a few occasions. While there has been only limited overall contact with her friends, there has been no evidence of strain, tension or conflict related to her injury and its effects.

   I note that my description is similar to the descriptors that Dr Andrews provided both in his paragraph related to Social Functioning in the Social Activities, section of his Medical Assessment as well as his description in the PIRS table. I have clarified the relationships with friends and the relationship with her daughters and could find no evidence of conflict, strain or tension as a result of her injury and so do not agree with Dr Andrews’ rating.

   I note that Dr Martin Allan, in his report dated 25 February 2022 stated that Ms Ross had lost friends. I questioned her closely about this, but she denied it. He also states that “she remained single” – Ms Ross has not sought a partner since her separation and subsequent divorce in 2010. This is a choice and has not been influenced by her injury.

   Given the above circumstances I consider that she should be appropriately rated class I, in Social Functioning.”

Conclusion

1. We accept the clinical findings of Medical Assessor Blom, and his diagnosis. We agree with his assessment of a class 1 impairment, because there is no evidence of difficulty in making or sustaining relationships as a result of injury, or of conflict, strain or tension in relationships as a result of injury.

2. The Medical Assessment Certificate is revoked and replaced with the attached Medical Assessment Certificate.

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W3990/22
Applicant:	Liza Ross
Respondent:	Eureka Operations Pty Limited trading as Coles Express

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

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)
Psychiatric	30 January 2020 (deemed)	Chap 11, p 54-60	n/a	15	1/10	14%
Total % WPI (the Combined Table values of all sub-totals)					14%

14 July 2023

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Liza Ross	Claim reference number	W3990/22
DOB	Age at time of injury	46 years
Date of Injury	30 January 2020 (deemed)	Occupation at time of injury	Customer service
Date of Assessment	18 January 2023	Marital Status before injury	Separated

Psychiatric diagnoses	Persistent depressive disorder with anxious distress
Psychiatric treatment	Medication		Brief psychotherapy
Is impairment permanent?	Yes

PIRS Category			Class		Reason for Decision
Self-Care and personal hygiene			2		Ms Ross contributes to housework such as laundry, dishes and cleaning. She prepares simple meals and snacks for herself, sometimes skipping meals and at other times binge eating. Her weight has remained relatively stable, although she remains morbidly obese. She is doing regular exercise and has cut down or ceased using alcohol. She showers daily, sometimes after prompting by her daughter.
Social and recreational activities			3		She has given up previously enjoyed activities such as fishing and camping. Before her injury, she had regular outings to cafés, restaurants and the movies. Occasionally, she will go to a café for coffee with a girlfriend.
Travel			2		She is independent with local travel, driving herself to grocery shops and the chemist. She is anxious and avoids longer journeys because she loses focus and feels unsafe. She moved from Albury to Wagga Wagga in October 2022, a drive of about 90 minutes taken with her daughter. Another daughter still lives in Albury, but Ms Ross has not returned to visit.
Social functioning			1		She remains close to her daughters, a previous neighbour from Albury, two friends in Wagga Wagga, her mother and four of her five sisters. Contact with her Wagga Wagga friends and family has been by telephone or social media. She has a long-standing estrangement from one sister for reasons unrelated to her recent mental health problems.
Concentration, persistence and pace			3		She reads short tracts of news on her phone. She watches serials and reality TV shows but tends to lose focus. She has no projects or hobbies. She had been full-time online studying at university with mixed success until early 2022. She argues that her memory has worsened, and she was unable to continue, so she has dropped out. During my 90-minute assessment, she was discursive and required redirection, suggesting inattention. She had a good command of detail and sequences of events.
Employability			4		She has lost confidence in herself and trust in others. Although she feels unfit to work, she could manage some tasks, less than 20 hours a fortnight at a reduced pace and with erratic attendance.
Score										Median Class
1	2	2		3		3	4		= 3
Aggregate Score Impairment 15								Total			15%