Far West Community Legal Centre Incorporated v Liyanage
[2023] NSWPICMP 226
•26 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Far West Community Legal Centre Incorporated v Liyanage [2023] NSWPICMP 226 |
| APPELLANT: | Far West Community Legal Centre Incorporated |
| RESPONDENT: | Priscilla Liyanage |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 26 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in the one-tenth deduction he made pursuant to section 323; Panel found that although the worker had a pre-existing condition, the deduction made by the MA was consistent with all the evidence; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 February 2023 Far West Community Legal Centre Incorporated (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Yu-Tang Shen, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 20 January 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in applying a one tenth deduction pursuant to s 323 of the 1998 Act, failed to provide reasons as to why he considered it costly or difficult to determine the deduction and failed to address whether a one tenth deduction was at odds with the evidence.
In reply, Far West Community Legal Centre Incorporated (the respondent) submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a date of injury of 18 December 2018.
The MA obtained the following history:
“She said that there were issues with work after a new CEO started in October 2018. She said that her position was a paralegal, and another colleague had left, and there was a community development position that was available.
She moved from her casual paralegal position, to a merged role with her previous role and the community development role. She said it changed to a permanent part-time. I raised that the permanency was disputed by the insured, and she said that Shannon had agreed that it would be parttime. She said that Shannon had told her to put in for leave, which was when the first hiccup occurred. She said she was changed to permanent full-time after Christmas. She said that she was booked for training and had spoken to Stacey regarding a few policies and procedures, and she would have to load the whole trailer frequently, questioning of her Aboriginality and so she had to provide papers of her Aboriginality, and pulling her out of a training course, and isolating her and not talking to her. She was then told that her hours were being reduced. She last worked in July 2019.
She then said that from December 2018, when the conflicts at work and leave was occurring, was when her mental health starting to deteriorate, with worsening in July 2019, when she felt excluded at work.
I asked what symptoms she developed. She said she would have nightmares, and would think of hanging herself out the back. She was having panic attacks, and she was crying all the time. She was not able to go out due to her panic attacks. She was afraid the CEO was trying to badmouth her and take away her identity as an Aboriginal person.
She has had psychological therapy, and feels that it’s not helping. The medications seem to take the edge off things.
Overall, she thinks she has gotten worse, as she no longer able to go out anywhere, though she then said she can still go with somebody.”
After setting out details of the respondent’s present treatment regime, the MA then noted present symptoms as follows:
“Her mood has been up and down, and some days she has ‘really, really good days’, and some days she is bad days. She has 80% not wanting to do anything. She said she doesn’t enjoy anything at all. She said that on ‘really, really good days’, she is able to get out and blow dry her hair and dress herself up. Her sleep has been ok, with less frequent nightmares now, though she still has bad dreams of ‘Shannon or her’. She has some nights when she stays awake all night if she is very anxious, and other nights she can go to sleep with her medications. Her appetite has been poor, as she has been eating one meal a day, and her weight appears to have increased from 52kg to 60kg now. Her energy is also low and she sleeps in the afternoons and the mornings. Her concentration has been poor, and she is easily forgetful. She has needed to stop university, as she was not able to focus on it. She continues to feel hopeless and worthless. She has death ideations, but her children are her protective factors.
She has been having ongoing panic attacks, from 5 panic attacks to 7 panic attacks in a week, if she goes outside. She has vigilance, anxiety, ‘freaking out’, ‘breathing funny’, ‘heart going’, feeling like she’s going to pass out. She has associated agoraphobia.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition,” the MA said:
“Prior to the work injury, she had issues with PTSD related to childhood sexual abuse. She had counselling at the time to support her and hypnotherapy, and she was on medications for a month to tolerate the process of charging the perpetrator. She said that those symptoms resolved, without any further re-experiencing symptoms.
She denied any other psychiatric issues, though she said she had an episode after she had a miscarriage and she saw a psychiatrist at the hospital for an assessment.
She denied any alcohol use and has previously drunk on rare social occasions. She smokes regularly. She denied any substance use.
She denied any forensic history. She said there was no family history of mental health conditions or substance use.
She has been with her current partner for 5 years, and she said their relationship has been great, and he has been quite support, with no arguments or separations. She has a good relationship with her children. Prior to the work injury, she had a lot of friends and would go out to socialise and she would go out every couple of months for dinners or work-related celebrations. Since the work injury, she doesn’t go out much, and she has retained 2 friends who check in on her every couple of months. She has not attended any gatherings since the work injury, including missing family funerals or birthdays.”
The MA then set out details of the respondent’s general health and the impact of her condition on her activities of daily living, and said:
“She is living in Broken Hill, with her partner and her 17-year-old son. She also has a 23-year-old daughter. She has three sisters, whom she maintains contact. She has friends, but not in contact with them regularly. She has a few close friends she talks to every few months. She usually enjoys spending time with the family, and she has previously enjoyed going to the gym, her studies.
She is not working and has not returned to work since leaving July 2018. She has been working with her GP and her treating psychologist for alternate work, but her panic attacks was too overwhelming. She is currently on Worker’s Compensation.
At home, she just sits at home. She showers and dress herself, but sometimes need prompting, though she is able to do it herself.
She has not been out to any social gatherings in three years, and she does go out with her partner, or a family member, to Maccas and for a drive around town, to the look-out. She has been able to enjoy those activities with them.
She is no longer studying and she deferred it for 12 months, from September 2021. She has not been able to focus on much these days, though she watches the news occasionally on TV.
She doesn’t think she can return to work yet, even hairdressing. She had previously done her family’s hair, but she doesn’t even undertake that.”
Findings on mental state examination were reported as follows:
“She was groomed and casually dressed, with her hair tied with a knot. She was reasonably engaged in the assessment, with mild reluctance of responses and vagueness when querying her functional capacity, though she was able to respond with repeated direct questioning, and a pattern of amplifying how functionally impaired she was, before further clarification demonstrating less impairment than previously stated.
Her mood was up and down and anxious, with a congruent affect, which was dysphoric and teary. Her speech was articulate, with mildly reduced prosody, and logical in thought. She had ongoing pessimism, death ideations, and ongoing ruminations about her work-related experiences and the insurance claims process. She felt persecuted by her previous employer. She had no bizarre paranoia. She had no perceptual disturbances. She was alert, and was able to focus for the duration of the assessment. She complained of attentional dysfunction.”
In summarising the injuries and diagnoses, the MA said: “She has Persistent Depressive Disorder, with partial response, and panic disorder with agoraphobia.”
As regards Ms Liyanage’s consistency of presentation, the MA said:
“There were significant inconsistencies between her accounts compared to the accounts of the other employees and managers, with overall lack of substantiation of her allegations. The medical records are consistent with her current presentation.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA said: “Yes, she has had a past history of PTSD, which provided underlying vulnerability to her current presentation.”
The MA assessed 17% WPI, with 1/10 deduction, with a final WPI of 15% (with rounding).
The thrust of the appellant’s submissions is that a one-tenth deduction is at odds with the available evidence, leaving aside for the moment the issue regarding the adequacy of the MA’s reasons.
The appellant submits that it is clear on the available evidence that the respondent’s prior injury and pre-existing conditions have made a difference to her present impairment.
The appellant relies on evidence, detailed in the submissions, as to why this is so.
Those submissions are summarised as follows:
(a) The MA noted at page 10 with respect to the respondent’s history of PTSD:
“Her divisive nature in relationships, and tendency to make assumptions perceived to be real to her that are in contradiction to other people’s recollection and perception of reality, leading to conflicts that have given rise to the workplace injury.”
(b) On page 4 of the MAC, the MA referred to the respondent’s pre-existing PTSD condition related to childhood issues. The MA noted that “those symptoms resolved, without any further re-experiencing symptoms.”
(c) The MA has taken this history at face value and has not considered the relevant medical evidence at hand.
(d) The MA failed to refer to the clinical records from Maari Ma Health Aboriginal Corporation - Primary Health. These are particularly pertinent and document that the respondent did in fact re-experience her PTSD symptoms on several occasions and over a number of years:
(i)On 1 October 2013 there were two entries which referenced symptoms of depression.
(ii)On 23 July 2015 there were references to childhood issues causing PTSD/Anxiety symptoms as well as recurrent nightmares.
(iii)On 29 September 2015 there was reference to the respondent presenting in the ED and being assessed by the Mental Health Team following a suicide attempt.
(iv)On 29 July 2016 there was reference to PTSD symptoms.
(v)The MA also referred to an episode after the respondent had a miscarriage, for which she saw a psychiatrist at the hospital.
(vi)These personal issues were referenced in an entry on 7 September 2018, just three months prior to the date of injury.
(e) The MA’s conclusion that the respondent’s pre-existing PTSD symptoms resolved without any further re-experiencing symptoms is entirely inconsistent with the available evidence.
(f) The 10% deduction applied by the MA is at odds with the available evidence, which was not considered by the MA.
(g) The available evidence suggests that the respondent had ongoing symptoms related to childhood trauma and personal health issues pre-dating the injury.
(h) On the totality of the evidence, a greater deduction is warranted.
To begin with, the Panel accepts that Ms Liyanage certainly had some pre-existing psychological problems.
Having said that, Ms Liyanage was quite forthcoming in telling the MA about both the childhood issues and the episode after she had a miscarriage and saw a psychiatrist at the hospital for an assessment.
We accept that she did “re-experience” her PTSD symptoms on several occasions over the years, but in our view, this “re-triggering” of her symptoms was in response to specific events or “triggers.”
For example, an entry in the Maari Ma notes on 21 April 2015 refers to Ms Liyanage’s presentation following two positive pregnancy tests and her concerns about her cardiac condition and the pressure which led to a past termination.
On 7 July 2015 the notes refer to “a miscarriage at the end of May.”
On 23 July 2015, Ms Liyanage presented saying she wanted to discuss “stressors that may be triggering PTSD again.” She also referred to:
“Anxiety- PTSD.
Previous history of sexual abuse by step-grandfather. Recently daughter turned 16 and got into difficult situation with boy. Told Mum about it and brought things back- now having recurring dreams about abuse – very anxious re daughter’s safety. On Monday partner left her. Feeling very low and anxious. Staying with Mum-very supportive…”
The notes have extensive details about the situation in July 2015 which we do not intend to repeat here: they are located at page 58 and following of the Application to Resolve a Dispute.
In short, specific events such as her miscarriage, problems with her daughter and the break up of her relationship triggered the re-occurrence of symptoms.
We also note that, despite numerous consultations at the Maari Ma clinic, there is no reference to any PTSD symptoms between September 2015 and July 2016. The records are again silent on this issue until September 2018.
The appellant’s references to the entries on 29 July 2016 and 7 September 2018 are misleading.
On 29 July 2016, the primary purpose of the consultation was in respect of dental problems. Ms Liyanage seems to have seen a doctor not noted in previous entries. In our reading of the entry, it seems that the reference to PTSD was in the context of simply noting a past history.
The records indicate that there were numerous doctors, and on occasions, nurses, who saw Ms Liyanage over the years.
The entry on 7 September 2018 is in respect of an ultrasound and a possible miscarriage. There is in fact no specific reference to PTSD that we have observed. Nor is there any reference to it in the summary of entries listed at the end of the notes. It simply reads: “Call from patient requesting results.”
The clinical notes (with specific entries) run to over 150 pages, (total records number well over 300 pages) and the appellant’s references to just six relevant entries confirms our view that the recurrence of any symptoms of PTSD were not of major significance in the overall picture of Ms Liyanage’s pre-existing condition.
Most of the entries thereafter, including medical reports, relate to Ms Liyanage’s work injury.
We note also that notwithstanding these problems, Ms Liyanage continued at work.
The appellant relies on the opinion of Dr Ahmed. In his initial report dated 19 October 2019, he was generally addressing the issue of Ms Liyanage’s capacity for work. He concluded:
“Ms Liyanage's prognosis is guarded. She clearly has significant pre-existing vulnerabilities but at the same time has been able to function in her own hairdressing business and as a mother and partner. The demands of her workplace and associated guidelines may prove difficult for her and it is highly likely she has greater vulnerabilities regarding feeling mistreated given her past history of childhood sexual abuse.”
In his subsequent report dated 12 March 2021 he assessed Ms Liyanage with 17% WPI but said: “In my opinion the vast bulk of the contribution to her current deficits are pre-existing. I would estimate it at 75%.”
He then made reference to the report of Dr Martin Allan and said:
“Our key areas of disagreement are in my opinion he underestimates the impact of her past sexual assault and Post Traumatic Stress Disorder diagnosis. In my opinion he appears to accept her subjective interpretations of her experience in the workplace.”
In our view, Dr Ahmed does not provide any reasoning for his assessment. He simply states that the “vast bulk” of the impairment is pre-existing, which contrasts rather with his earlier statement in 2019 as regards Ms Liyanage’s functioning.
Dr Allan first saw Ms Liyanage at the request of her solicitor on 3 November 2020. In a report of the same date he said:
“I do not regard her as having a recurrence of her pre-existing posttraumatic stress disorder which resolved during her 20s, rather she has a distinct major depressive disorder with recurrent panic attacks noted from the features of anxiety and crosscutting features of posttraumatic stress disorder in the form of nightmares.
In my opinion, her current difficulties entirely relate to the circumstances of her employment with the treatment she received in her employment being the substantial contributing factor to her major depressive disorder with associated features of anxiety and panic attacks.”
Dr Allan assessed 24% WPI and made no deduction stating: “There is no deduction for any pre-existing injury. There is no evidence from Ms Liyanage’s history of any ongoing functional impairment prior to her workplace injury developing.”
An MA is not bound by the opinions of other doctors.
Consistent with his task, the MA based his assessment on all of the evidence to which he referred including his own detailed assessment on the day of examination.
It is clear that Ms Liyanage suffered from the pre-existing condition of PTSD, although the condition was in remission at the time of the injury. However the pre-existing condition acted to increase the symptomatology and impairment the worker suffered. The amount cannot be accurately determined but the Panel agrees that the 10% statutory deduction is correct.
The recurrences of the pre-exiting PTSD were in the context of specific triggers as referred to above.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 January 2023 should be confirmed.
0