Foard v Uniting (NSW Act)
[2022] NSWPICMP 475
•23 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Foard v Uniting (NSW ACT) [2022] NSWPICMP 475 |
| APPELLANT: | Sharon Foard |
| RESPONDENT: | Uniting (NSW/ACT) |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 23 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment under two categories under the Permanent Impairment Rating Scale (PIRS); self-care and personal hygiene, and social functioning; Held – the ratings were open to the Medical Assessor and made in accordance with the correct criteria; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 June 2022 Ms Sharon Foard (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 May 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.
· 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 requested 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.
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.
The MAC
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):
· the degree of permanent impairment of the worker as a result of an injury (s319(c))
· whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
· whether impairment is permanent (s319(f))
· whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
· Date of injury: 8 April 2019
· Body parts/systems referred: Psychiatric/psychological
· 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)
Psychiatric
8 April 2019
Chap 11, p 54-60
n/a
8%
1/10
7%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
7%
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
Sharon Foard
Claim reference number
W2/22
DOB
9 May 1971
Age at time of injury
47 years
Date of Injury
8 April 2019
Occupation at time of injury
Local area coordinator
Date of Assessment
26 May 2022
Marital Status before injury
Single
Psychiatric diagnoses
Persistent depressive disorder with a current major depressive episode and anxious distress
Psychiatric treatment
Medication
Psychotherapy
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self-Care and personal hygiene
2
Ms Foard is independent in activities of daily living. She attends to housework and meal preparation. She has a reduced appetite but maintains a healthy weight. She neglects hygiene, showering every three days. She cares enough about her appearance to have recent cosmetic surgery (facelift). She is binge drinking alcohol in a hazardous manner
Social and recreational activities
2
She goes out to dinner with a friend every week or fortnight. She goes out to a club with friends about once a month. She refuses some invitations and is less inclined to attend family gatherings such as barbecues and games nights.
Travel
2
She is independent and comfortable with local travel. She is more cautious and uncomfortable with public transport where she might run into groups of people. She could travel from home to Wollongong or Sydney when needed but felt that she would be unable to take longer trips.
Social functioning
2
She has continued good relationships with her family and several friends. She has lost some friends because of her social disengagement. She was single at the time of the work injury and was unsuccessful in establishing an intimate relationship in 2021.
Concentration, persistence and pace
3
She has subjective problems with concentration, attention and memory. She has given up reading and sometimes cannot follow the narrative of television shows such as movies. She gave a detailed account during her 60-minute assessment, but struggled with some details.
Employability
4
She has not worked in a paid capacity since leaving her employment with United Care. She breeds dogs, spending about three hours a day looking after them. She sells the puppies, marketing and interacting with potential buyers. These are work-like activities. However, they don't require meeting the demands of an employer or interacting with work colleagues. Ms Foard would struggle in a formal workplace, and her pace would be reduced with erratic attendance.
Score
Median Class
2
2
2
2
3
4
= 2
Aggregate Score Impairment 15
Total
8 %”
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 two of the PIRS categories as follows:
(a) Self-care and Personal Hygiene when he assessed a Class 2 and a Class 3 should have been assessed, and
(b) Social Functioning when he assessed a Class 2 and a Class 3 should have been assessed.
In summary, the appellant submitted that errors were made as follows:
“A. The MA failed to have regard to the medical evidence before him that the appellant gained 11 kilograms following her workplace injury.
B. The MA failed to have regard to the cause of the secondary wound infection which arose after the appellants face lift surgery.
C. The MA failed to have regard to the medical evidence before him that the appellant’s relationship with her son was strained, that they often argued , and that one argument precipitated the appellant’s overdose on Alprazolam and Panadol(30 tablets) requiring a six day hospital admission from 6 May 2020 to 11 May 2020.”
In summary, Uniting Care (NSW/ACT) (the respondent) submitted that the appellant’s submissions concern historical matters and 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 was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The MA recorded as follows:
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Foard started work with Uniting Care on 19 November 2018. She alleges that bullying commenced in April 2019 and continued until December.
She argues that her team leader subjected her to ‘unfair and unreasonable’ bullying leading to an increase in her anxiety.
She sought help from her general practitioner and was subsequently referred to a psychologist and psychiatrist.
· Present treatment:
Treating clinicians:
ogeneral practitioner Dr Rajesh Verma
opsychologist Mr Marcello di Martino
Psychiatric medication:
ofluoxetine 40 mg daily
Ms Foard has seen several clinicians during her illness.
She has seen Mr di Martino monthly for the last eight months. He offers a supportive approach with dearousal strategies.
She had a single session with an exercise physiologist but felt too distressed to continue.
In May 2020, she was admitted to the inpatient psychiatric unit at Wollongong Hospital for one week after a paracetamol overdose.
Ms Foard acknowledges postnatal depression after the birth of her second child and that she has been continuously on fluoxetine since. She says that she was well, without impairment, when she started work with Uniting Care.
· Present symptoms:
Ms Foard's mood is low without diurnal variation. She has a reduced capacity to experience positive emotions but enjoys interacting with her 18-month-old granddaughter and going out with friends.
She has severe anxiety and panic when she sees ex-work colleagues or clients, experiencing somatic symptoms such as tachycardia, shortness of breath, sweating, and vomiting. Because of this, she avoids places where she may encounter these people.
She has subjective problems with concentration and memory, struggling to read a book or follow the movie's narrative. To mitigate her memory issues, she maintains a calendar and sets alarms.
She has thoughts of suicide and said, ‘what's the point in living?’ Her children and granddaughter are protective factors.
She struggles with sleep. She often falls asleep while watching television but wakes up to five times during the night. Frequently, she experiences distressing dreams, often about her work situation.
She tends to graze on junk food or eat easily prepared meals. She considers herself underweight.
· Details of any previous or subsequent accidents, injuries or conditions:
Ms Foard was continuously on antidepressants since 1995. Several entries in her general practice record suggest ongoing difficulties with depression and anxiety. She had been diagnosed with postnatal depression in 1995 and anxiety/depression in 2015. I discuss this further in my comments below regarding the clinical documentation.
· General health:
Ms Foard has long-standing difficulties with excess weight. She had bariatric surgery in February 2021.
On 13 July 2018, her weight was 85 kg (recorded by Dr Verma). After leaving work, she was ‘comfort eating’, and her weight increased to 96 kg. It is now about 60 kg; at 165 cm, her BMI is 22, in the healthy range.
Two weeks ago, she had facelift surgery and is now taking antibiotics for a secondary wound infection.
She smokes about ten cigarettes a day, increasing this up to 30 cigarettes a day when drinking alcohol.
She binge drinks, favouring bourbon and Coke, consuming about one litre (29 standard drinks) of the spirit three times a week.
· Work history, including previous work history if relevant:
Ms Foard was raised at Dapto with two older sisters. Her parents separated when she was three years old, and she stayed with her mother, seeing her father every two weeks. Her mother died ten years ago, and her father is still living (her statement erroneously said he was deceased). She recalls a safe and happy childhood.
She completed year ten at school, where she experienced some bullying. She has some qualifications in bookkeeping and general computing.
She has worked in administrative roles in nursing homes before entering the disability sector.
She told me that she had had no previous WorkCover claims but had been subject to some workplace bullying and had left the positions.
· Social activities/ADL:
Ms Foard is a single woman who lives with her 20-year-old son, Nathan, who is working and studying, leaving Ms Foard independent in daily living.
She has two adult children from her first marriage, which lasted eight years, and two from her second marriage, which also lasted eight years. She has one granddaughter.
She wakes early but will lie in bed until about 7 AM.
She has the television on most of the day, primarily for ‘background noise’, during which she often checks email or Facebook. She may watch the midday movie,
She has a regular phone call from a girlfriend who checks on her each morning.
She attends to housework, although she finds it a struggle; she said, ‘I try to clean the best I can.’ She mentioned that if she is drinking alcohol, then ‘I'll clean the house properly.’
She prepares meals in an air fryer but has lost weight because of her reduced appetite. Her weight is now stable.
She has four crossbreed dogs, which she breeds for sale, spending up to 3 hours a day attending to their care.
Before becoming unwell, she had an active social life and enjoyed walking, markets, camping, barbecue and games nights with her family, and social outings with friends. She frequently travelled, taking cruises, and trips to Thailand and Bali.
She is less socially engaged, sometimes refusing invitations. She goes out monthly with a group of friends to a club, where they may listen to a band. Occasionally, she goes out to cafés or restaurants. She has a regular date for dinner every one or two weeks with a girlfriend.
The family get-togethers are less frequent, although they still celebrate events such as birthdays and Christmas.
She has not been on a holiday trip since leaving work.
She is comfortable driving, although she is more cautious than before. She is independent with local travel, mostly limited to shopping trips and medical appointments. She drives 30-40 minutes to Wollongong for appointments and recently drove to Sydney to take her son to the airport.
She is anxious about travelling in situations where she may need to be around many people.
She remains close to her children and granddaughter and has maintained several friendships. She has lost some friends because of her social disengagement.
In 2021, she commenced a six-month relationship, ending in February 2022, with a man she had met at a social dinner. They broke up four or five times during the relationship because he struggled to understand her anxiety.
Ms Foard has given up reading because of poor concentration and attention. She watches movies but with less attention. She has no hobbies or projects except dog breeding.”
The MA conducted a mental state examination and recorded his findings as follows:
“I assessed Ms Foard in her home by video link. The connection quality was excellent, allowing me to do a comprehensive assessment.
She appeared as a middle-aged woman, casually attired and well-groomed with her hair pulled back.
She said that she was depressed and anxious. Her affect was reactive; she could smile and respond to humour.
There was no evidence of any disorder of thought-form or perception.
She gave a comprehensive account over a 60-minute interview, although she struggled to recall some details.
She acknowledged thoughts of suicide without plans or intent.”
The MA made a diagnosis as follows:
“I make my diagnoses relying on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
opersistent depressive disorder with a current major depressive episode and anxious distress
oalcohol use disorder
Previous diagnoses have been adjustment disorders. Ms Foard's symptoms have persisted, and she now meets the criteria for a formal mood disorder diagnosis, which supersedes that of an adjustment disorder.”
The MA noted in respect of the appellant’s consistency of presentation as follows:
“Ms Foard tended to minimise or gloss over some aspects of her history. Her pre-existing mental health problems were more severe than she acknowledged.”
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 two of the categories assessed, namely Self-Care and Personal Hygiene, and 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. The Panel will deal with each category in turn.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4
Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5
Totally impaired: Needs assistance with basic functions, such as feeding and toileting.
The MA rated a mild impairment at Class 2 with the following reasoning:
“Ms Foard is independent in activities of daily living. She attends to housework and meal preparation. She has a reduced appetite but maintains a healthy weight. She neglects hygiene, showering every three days. She cares enough about her appearance to have recent cosmetic surgery (facelift). She is binge drinking alcohol in a hazardous manner.”
The MA has to make an independent assessment. He had regard to the opinions of the other experts and made the following comments as to why he differed in respect of the assessments for Self Care and Personal Hygiene as follows:
“A/Prof Robertson found a moderate impairment for self-care and personal hygiene, whereas I thought it mild. A/Prof Robertson noted:
Ms Foard showers every second day. She gained an excessive amount of weight due to consuming calorie-dense nutrient deficient foods.
Ms Foard is independent in activities of daily living. She attends to housework and meal preparation. She is less attentive to hygiene but remains concerned about her appearance. She has long-standing problems with weight, pre-dating her employment with Uniting Care. Following bariatric surgery, she has lost excess weight and is now in a healthy weight range.”
The panel can discern no error in the Class 2 rating. The MA has noted an improvement in the worker’s diet since she saw Dr Robertson, that her weight has stabilised despite pre-injury weight problems, following bariatric surgery, and that she has had recent cosmetic surgery, both indicative of a focus on self-care. The MA must not base his assessment on self report alone but must exercise his clinical judgment which he has done here and correctly ascribed a Class 2 rating according to the criteria in the Guides.
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 mild impairment at Class 2 with the following reasoning:
“She has continued good relationships with her family and several friends. She has lost some friends because of her social disengagement. She was single at the time of the work injury and was unsuccessful in establishing an intimate relationship in 2021.”
The appellant submitted that a Class 3 or moderate impairment should have been assessed.
The IME qualified on behalf on behalf of the appellant, A/prof Robertson assessed Class 3. 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:
“A/Prof Robertson determined a moderate impairment in social functioning, whereas I thought it mild. A/Prof Robertson:
‘Ms Foard has begun a new relationship but states that they have broken down several times due to her emotional instability and irritability. She has had several fights with her children, including one precipitating an overdose.’
Ms Foard now has good relationships with her children and several friends. She had been a single woman when she started work at Uniting Care. She failed to establish a relationship with a man in late 2021, ending it after six months. She felt that he couldn't understand her anxiety, but there was no domestic violence.”
The Appeal Panel can discern no error in the rating of a mild impairment.
The appellant did have a falling out with her son over two years prior to the MA’s assessment and when her condition was more severe, but the relationship has largely been repaired and while there might be some tension between them, her son still lives with her. Class 2 is the best fit and the MA has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.
The assessment by the MA accords clearly with Class 2. A mild impairment is the best fit as the appellant has maintained a strong friendships as well as relationships with family members. This is consistent with the criteria for Class 2. The appeal panel can discern no error in the Class 2 rating.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 May 2022 should be confirmed.
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2
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