Flood v Weekly Times (Gladesville) Pty Ltd
[2021] NSWPICMP 138
•3 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Flood v Weekly Times (Gladesville) Pty Ltd [2021] NSWPICMP 138 |
| APPELLANT: | Trisha Flood |
| RESPONDENT: | Weekly Times (Gladesville) Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr Patrick Morris Dr Michael Hong |
| DATE OF DECISION: | 3 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to the Psychiatric Impairment Rating Scale (PIRS) categories of self-care and personal hygiene, travel and social functioning; fresh evidence not admitted because no explanation as to why it was not included and was of little probative value being part of a report in 2014; Held- the MA’s assessments were open to him on the evidence; the MAC was extremely thorough and detailed; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 April 2021 Trisha Flood (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 12 March 2021.
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):
· 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 assessment was made on the basis of incorrect criteria,
· 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.
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 although one was requested, no reasons were provided other than that “the Appellant may need to be re-examined by or on behalf of the Appeal Panel.”
We consider that we have sufficient evidence before us to enable us to determine the appeal, and we do not consider that a re-examination is required.
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) Pages 9 and 10 of a report of Dr Westmore dated 10 April 2014.
The appellant makes no submissions as to its relevance nor as to why the evidence was not available and could not reasonably have been obtained prior to the assessment by the MA., and as such has failed to comply with the requirements of s 328 (3).
Weekly Times (Gladesville) Pty Ltd (the respondent) objects to the admission of this evidence both because of the appellant’s failure to comply with s 328(3) but also because it is of little probative value.
The Appeal Panel determines that the evidence should not be received on the appeal because the appellant has not provided any explanation for the failure to comply with s 328(3) other than to state that the evidence was “erroneously omitted”. We also cannot see its relevance or probative value in circumstances where Dr Westmore has provided a detailed report dated 23 July 2019 which clearly post-dates the earlier report.
The pages referred to are the impairment assessments made in 2014.
Given that the task of an MA is to make an assessment on the day of the examination, an assessment in 2014, almost seven years ago, is unlikely to be of any great relevance.
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 his assessments with respect to the Psychiatric Impairment Rating Scale (PIRS) categories of self-care and personal hygiene, travel and social functioning.
In reply, 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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a psychological injury with a deemed date of injury of 11 October 2014.
The MA obtained a detailed history as follows:
“Ms Flood had been a casual graphic designer with The Times from October to December 2002. She returned from Queensland in May 2003 and worked at The Weekly Times for nearly three years. Over this period she experienced what she described as ‘an absolute nightmare.’ She describes being demoralised, diminished, bullied and ‘pulled apart.’ … She said she was not the only one who was treated in this fashion and there were workers’ compensation claims made by other members of staff. There was also another legal action supported by her union for them withholding her money. She said that she did not leave because she was so demoralised she felt hopeless and her skin had broken out in acne and so she felt she would not interview well. She said the worst period possibly was when she was having to testify in court about the financial irregularities against her boss in the morning, and in the afternoon then had to go and work with him. We used her statement to fill some of the details of her perception of events at work although I note there are some differing claims in the documentation from other staff members.
She first went off work in October 2004 and noted that over that Christmas period three members of staff resigned. She continued to consult with her general practitioner with intermittent periods of time off. She saw a psychologist, Dr Garner in 2005. Her treating psychologist, Ms Garner’s notes, from early 2000, indicate ‘many incidents of harassment and conflict even after she returned back to work in 2006 and presence of predominantly anxious and some depressive phenomena.’ She initially saw her from May 2005 when she reported fatigue, poor concentration, migraines, nausea, reduced appetite, sleep disturbance and heightened irritable bowel symptoms. She saw Dr Holliday in May 2006 which may have been a one-off assessment, The GP records and Dr Holliday’s notes corroborate Ms Flood’s perception of what happened at work and her experiences there. Her GP managed her antidepressants with predominantly SSRI antidepressants. She eventually left work in 2006.
Subsequently she has continued to have ongoing psychological difficulties, particularly with confidence, anxiety and dealing with stressful environments and conflicts such that her resilience has been chronically compromised. She was under the care of a psychologist, Navin Goonial, for many years but stopped in 2015 and has not had any further psychological interventions. She has continued with an SSRI antidepressant from her general practitioner and manages some of her stress-related physical symptoms, e.g. tension headaches and tight necks, with massage and fairly regular chiropractic. Her function appears to have fluctuated somewhat although stabilised over the past few years. The schedule of her employment history, indicates more extensive periods of work recently in administration, call centre work, telemarketing and sales which appears to receive some form of employment service support although she says they do little to help her obtain such jobs.”
After documenting Ms Flood’s present treatment, the MA then noted her present symptoms as follows:
“She manages her life with a fairly minimal amount of psychological symptoms, if not overly stressed or placed under pressure. She still reports a low stress tolerance and resilience, a general sense of lack of enjoyment and at times feeling low. She says she is easily upset and sensitive but feels stable when on her own over the weekend, managing her chores and doing her activities. She feels best on Sunday when all of her week’s chores are done. She describes some difficulties concentrating intermittently and has, for instance, backed into a skip in a driveway. Her last panic attack was over three months ago in late 2020. She describes episodes where her head goes blank, she gets sweaty, shortness of breath, tightness and this has a classic rapid onset with a fairly fast offset. She has a range of irritable bowel symptoms including nausea, bloating and pain, which can also be associated with stress overload. She is not anhedonic but has intermittent reduced levels of energy. She goes to bed around 9:30pm, although is not sleepy at that time. She lies there for an hour, turning off the lights around 10:30pm. She then wakes with her alarm between 7am and 7:30am. She describes no onset or middle insomnia and a normal sleep duration. She has some negative cognitions of herself and her resilience, and more frequent levels of arousal with some stress-related symptoms that do not form the basis of panic attacks.”
Ms Flood had a number of concurrent medical problems which the MA set out but noted that Ms Flood said that there was “no significant psychological deterioration with these physical health conditions.”
The MA then turned to consider Ms Flood’s employment history, stating:
“This is extensively documented in her statement…She left school after year 12…She then obtained a certificate and diploma in graphic design and worked as a graphic designer for over a decade and a half. She appeared to move jobs reasonably frequently. She also noted prior conflict with bosses, e.g. in 2003…
Her schedule of employment outlines the employment she has had… In September 2020 she commenced working for Ray White at near fulltime duties in customer service. She said this was a casual role and she was really looking for fulltime work. Over the past two weeks she has been working for RPA Wealth Management in Camden Park. She does cold-calling with inbound follow-ups for high end real estate. She is considering relinquishing this because of the extensive travel and the over $50/week cost in tolls. She is due to go to a third interview for a new role in Blacktown tomorrow dealing with in-bound enquiries. As such this indicates that she has been able to work fulltime for reasonable periods of time, although her ongoing poor stress tolerance, resilience, being easily upset and destabilised, has at times led her to leave work and potentially cut short roles. For this reason she prefers to work casually, such that if she feels she is unable to tolerate a workplace, then she can leave it as she needs to…”
The MA then documented the impact on her social activities and activities of daily living (ADL’s), stating:
“In the year prior to working fulltime for Gladesville Times, Ms Flood had worked casually, travelled to Western Australia for some time to see her sister, ceased working for another organisation (potentially because of conflict problems) and also then spent some months working for a dive company in Queensland. She maintained contact with her parents, as well as her three siblings. She described no long-term relationships, never having lived with a partner nor having children. She was quite vague about this aspect of her history compared to the precision of many other aspects. She described no cognitive problems, having returned to courses to learn CAD and other computer software for her graphic design roles. She lived independently for many years without any problem and described no difficulty travelling in any modalities and was able to travel extensively across Australia.
After leaving Gladesville Times she returned to Lidcombe to do an Advanced Diploma and said she was doing well but had only one unit left when she had ‘a meltdown’ which would appear to be in 2007 from her history. She says she has never returned, in part because she found office design environment tough but also because she would have to pay a full semester just for the one last unit she needed.
She has continued to live on her own in the past 15 years…, moving through various rental accommodations.
When she gets up in the morning she gets herself ready, feeds, waters and provides bedding for her pets, always eats breakfast and describes no difficulty with her personal self-care…She gets home after 8pm, again feeds her animals, checks her emails and has the TV on in the background but is not particularly interested in it. She tends not to eat in the evenings, having eaten through the day, and may have to do a couple of other chores.
At the weekends she spends Saturday doing all of her washing, cleaning, shopping, looking after her pets and will swim if warm. She also likes to swim on Sundays, either in the pool or to go to a beach if she can.
She maintains contact with her parents who live at The Entrance, seeing them once every couple of weeks. She maintains contact with her siblings but does not see them as much and only sees her nieces and nephews on occasions.
She has a limited social circle with a couple of close friends who will call and one old school friend nearby with MS who she has not seen recently because of her fulltime work… She enjoys being with her pets, swimming, going to the beach if she can. She can drive as and where she needs to, although says at times she believes she may lose focus and has reversed into a skip, but described no hyperarousal, vigilance or avoidance. She can get stressed and anxious when there are lots of people around and gets aroused but describes not actually avoiding any specific scenarios. As above she has been able to learn new systems at the various workplaces she has been at over the past few years…”
Findings on mental state examination were reported as follows:
“Ms Flood was casually-dressed and engaged. She was initially somewhat distressed but composed herself over the period of the assessment. She appeared to have some possible tics or dystonic movements, particularly of her tongue. She describes low stress tolerance and resilience but no pervasive misery, anhedonia, and rather a more fragile, easily-upset mental state, possibly what would have been called in the past ‘neurotic’ or ‘highly-strung.’ There are no clinically significant biological features of depression although intermittent reduced energy and some cognitive features of reduced concentration and at times reduced focus. She has a normal sleep duration with no insomnia. She is quite self-aware about her limitations in different environments and manages this. She can be aroused in a range of scenarios but has not had a panic attack for over three months. There are no psychotic phenomena. Given her reported cognitive function at work, there was no indication for any cognitive assessment.”
The MA summarised the injuries and diagnoses as follows:
“In the context of her experiences at work at Gladesville over what appears to be a number of years, with interpersonal, legal, financial and employment difficulties, Ms Flood had a significant Major Depressive Episode. This has ameliorated over the years into a more pervasive depressive state of a lower severity and impact, termed Persistent Depressive Disorder or Dysthymia. She has occasional panics but not the full characteristics of a Panic Disorder. Her symptoms and function appear to have been relatively stable over the past few years, with at times intermittent short self-limiting periods and increased symptoms when overly stressed.”
The MA assessed 7% WPI.
He then turned to the other medical opinions, adding:
“The notes from her general practitioner and treating psychologist corroborate the history elicited above and, with the very limited treatment she has been receiving over the past five years, adds little to the current assessment of diagnosis, condition and impairment.
Reports by Dr Westmore, consultant psychiatrist, for the applicant. In 2014 Dr Westmore elicited a similar history and also noted that at the time he saw her, Ms Flood reported that ‘on a day-to-day basis I’m fine, it’s only when I’m trying to maintain employment…’ He too diagnosed a depressive episode that turned into a chronic course and outlined a guarded prognosis. In some respect this appears to have been borne out.
In July 2019 when he re-examined her, he provided a diagnosis that I agree with, of a Persistent Depressive Disorder. I disagree with some aspects of his rating of her WPI. She lives independently, looks after her pets and reported no day-to-day difficulties in her self-care, shopping, cooking, cleaning and in fact enjoys completing her chores, such that she feels able to relax on a Sunday. She also described no difficulties travelling as and where she needs to. Although on occasions she may have minor incidents this does not appear to be out of the range of normal driving. In terms of social functioning, she has not held down any long-term relationships or lived with someone over her adult life. She has a good relationship with her parents who are supportive, but a more distant one with her siblings and has only a few close friends. This is a mild impairment. In terms of employability, Dr Westmore rated her as totally unable to work, which is patently inconsistent with the workplace history that she had even at that time and as he stated in his report. She has demonstrated her ability to work more than half of the time, for periods in fulltime employment over the past three years. Although she can work fulltime for periods, these have not been sustained and she describes ongoing difficulties such that she maintains casual employment and appears to move relatively frequently with reasonable periods of unemployment in-between. Given that this is a generous system, on balance she is moderately impaired in her employability, and as she even noted to Dr Westmore back in 2014, on a day-to-day basis she is fine except when looking for work.
Reports by Dr George, consultant psychiatrist for the insurers. In April 2005, right at the beginning of this incident, Dr George diagnosed her with ‘a recurrent stress disorder’ which actually has never, to my knowledge, been a DSM-IV diagnosis at that time. In 2014 when he saw her she was working either fulltime or part-time and his diagnosis at that stage agree with Dr Westmore and myself. He last saw her in February 2020 where he thought he was unable to make a psychiatric diagnosis. She still reports enough borderline clinically significant symptoms, particularly in certain situations to warrant a diagnosis. As such, having not made a diagnosis, he did not provide a whole person impairment.”
The appellant firstly challenges the MA’s assessment in respect of the PIRs category of self-care and personal hygiene.
The MA assessed a Class 1, stating: “She lives independently, looks after her pets and reported no day-to-day difficulties in her self-care, shopping, cooking, cleaning and in fact enjoys completing her chores, such that she feels able to relax on a Sunday.”
The appellant makes the following submissions:
(a) Having regard to the PIRS table as to the criteria for Class 2 (mild impairment) there is an arguable basis for making a Medical Appeal in relation to the self-care and personal hygiene category assessment by the MA.
(b) The MA has not correctly assessed the appellant based upon the history obtained by the MA and it appears that the history obtained is incorrect.
(c) The history obtained by Dr Bruce Westmore in his report dated 23 July 2019 is that the appellant falls into Class 2.
(d) The appellant instructs that she has not cooked any meals for at least six months and that she usually eats take-away food to avoid cooking as she is usually mentally exhausted. The applicant also instructs that she does not enjoy performing chores.
(e) From a review of the PIRS table the appellant is more likely to fall into Class 2 (mild impairment) as she is able to live independently and she usually looks after herself adequately but that she misses meals and relies on take-away food.
The appellant’s submissions essentially reflect mere disagreement with the assessment of the MA.
The MA gave clear reasons as to why he disagreed with the opinion of Dr Westmore in his 2019 report.
Chapter 1.6 of the Guidelines require an MA to make an assessment on the day of the examination.
There is nothing in Ms Flood’s statement indicating that she had any particular difficulties in this PIRS category such that it was the task of the MA to elicit any relevant information. Simply because it differed from that recorded by Dr Westmore in 2019 does not make it “incorrect.”
The information she provided to the MA was in our view entirely consistent with a Class 1 rating, and we cannot see any error by him.
We note that in Parker v Select Civil Pty Ltd [2018] NSWSC 140 Harrison ASJ stated at [71]:
“It is my view that whether the findings fell within Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS…”
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
[25] The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
The appellant next challenges the assessment with respect to the category of travel.
The MA assessed a Class 1 adding: “She also described no difficulties travelling as and where she needs to, although says at times she may have minor incidents although this does not appear to be out of the range of normal driving.”
The appellant submits that a Class 2 rating is appropriate “having regard to the fact that although the appellant can travel without a support person she is limited to her local area. The appellant disputes the history that she is able to drive without difficulty.”
There was nothing in the history obtained by the MA that the appellant was “limited to her local area.” He said: “She also described no difficulties travelling as and where she needs to. Although on occasions she may have minor incidents this does not appear to be out of the range of normal driving.”
Given the extremely detailed history obtained by the MA, and also as he said with reference to Ms Flood’s own statement, we cannot accept that the appellant would have failed to mention any particular difficulties.
“Minor incidents” while driving are common in the community at large, and we agree with the MA’s observation that “this does not appear to be out of the range of normal driving.”
We thus have difficulty accepting the appellant’s submission that she “disputes the history that she is able to drive without difficulty.”
No information has been provided in the submissions as to why she disputes the history obtained.
The descriptor for a Class 2 reads: “Mild impairment: can travel without a support person, but only in a familiar area such as local shops, visiting a neighbour.”
There is no evidence to suggest that the appellant is limited to driving to “local shops [or] visiting a neighbour.”
We repeat the comments we made with respect to the category of self-care and personal hygiene and the task of an Appeal Panel.
For these reasons, we again cannot see any error by the MA.
Finally, the appellant challenges the assessment with respect to social functioning.
Again, the principal submission is that the history obtained by the MA was “incorrect”, particularly as regards the appellant’s personal relationships.
The MA assessed a Class 2, adding:
“She has not held down any long-term relationships or lived with someone over her adult life. She has a good relationship with her parents who are supportive, but a more distant one with her siblings and has only a few close friends.”
The MA obtained this history:
“She described no long-term relationships, never having lived with a partner nor having children. She was quite vague about this aspect of her history compared to the precision of many other aspects…”
The appellant submits that:
“The MA makes comment that the appellant was ‘quite vague about this aspect of her history compared with the precision of many other aspects’. This would be consistent with a lack of regular personal relationships with friends or family.”
The appellant in our view is simply assuming that this ‘vagueness’ to which the MA refers is indicative of her psychological condition, rather than perhaps a personal choice not to disclose details of either her relationships or not having children.
There is simply no evidence to support that assumption.
The appellant once again submits that Dr Westmore was correct when he assessed a Class 4, adding “she has ‘an almost non-existent functional social network’ and has not ‘had any significant personal relationships’".
The appellant added:
“From review of the PIRS table it appears that the appellant is more likely to fall into class 3 or class 4 having regard to her inability to form long term romantic relationships and the strain that she still has with her familial relationships.”
It must be emphasised that Chapter 11.12 of the Guidelines specifically states that “the examples of activities are examples only…” They are not necessarily relevant to each individual, for example, Class 3 includes “spouse, relatives or community services looking after children.”
That is not the appellant’s situation.
The submission that the appellant “is more likely” to fall into a particular category is without any evidentiary basis and simply reflects a mere disagreement with the assessment by the MA.
In our view, the totality of the evidence supported a Class 2 rating and we cannot see any error by the MA as regards this category.
In summary, we cannot see that the MA’s assessment in all of the categories was “glaringly improbable” or that he was unaware of “significant factual matters.” His assessments were open to him on all the evidence before him.
The MAC was detailed and thorough. He carefully considered each of the ratings and explained why his opinion differed from others.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 March 2021 should be confirmed.
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