Healthshare NSW v Masters
[2024] NSWPICMP 606
•27 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Healthshare NSW v Masters [2024] NSWPICMP 606 |
| APPELLANT: | Healthshare NSW |
| RESPONDENT: | Tracey Masters |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury suffered as a result of events from 2013; appeal with respect to psychiatric impairment rating scale (PIRS) categories of social and recreational activities, concentration, persistence and pace and employability; worker attending TAFE and looking for work; Bojko v ICM Property Service Pty Ltd; Held – no error with respect to social and recreational activities; error with respect to concentration, persistence and pace, and employability; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 May 2024 Healthshare NSW lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Clayton Smith, who issued a Medical Assessment Certificate (MAC) on 26 April 2024 in which he assessed 19% whole person impairment (WPI).
Healthshare NSW relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in his assessment of the category of employability under the Psychiatric Impairment Rating Scale (PIRS). We conducted a review of the original medical assessment, limited to the grounds 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).
RELEVANT FACTUAL BACKGROUND
Ms Masters was employed by Healthshare as a catering assistant at Liverpool Hospital. She suffered a psychological injury which is deemed to have occurred on 23 May 2022. She implicates events in the course of her employment since 2013 as causing the injury.
The Medical Assessor diagnosed persistent depressive disorder. Using the PIRS, he assessed 19% WPI placing Ms Masters in class 2 for self care and personal hygiene, travel and social functioning. He assessed her in class 3 for social and recreational activities and concentration, persistence and pace and class 5 for employability.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Masters to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Healthshare submitted that the Medical Assessor was in error in his assessments under the PIRS tables for social and recreational activities, concentration, persistence and pace and employability. It said that the Medical Assessor failed to consider relevant evidence and gave scores inconsistent with Ms Masters’ history. Healthshare said that the Medical Assessor was in error in failing to make a deduction under s 323 of the 1998 Act when he said that an active and pre-existing anxiety disorder contributed to her impairment.
In reply and in submissions prepared by Ms Hart of counsel, Ms Masters submitted that when the Medical Assessor’s reasons were read as a whole, there was no error in the assessment under the PIRS. Ms Masters submitted that Medical Assessor was correct not to make a deduction under s 323 because the references in medical records showed that any anxiety condition developed as a result of the factors which led to the injury from 2013.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor summarised Ms Masters’ personal circumstances and said:
“She stopped working in May 2022, having worked as a full-time food and patient support services assistant in Liverpool Hospital for 33 years, stating that she had been bullied and harassed since 2013 and could no longer cope due to symptoms of anxiety and depression.”
He said:
“She started a Certificate 3 in Animal Care in July 2023 and is due to finish in June 2024. She has managed to pass her subjects with the help of the Disability Unit at TAFE. She has a helper who can assist with reading or interpreting questions and offering extra help and support as needed.”
The Medical Assessor summarised Ms Masters’ treatment and present symptoms. He went on:
“She said she had no difficulties with her mental health before 2013, when the problems began at work. She had never seen a psychiatrist or psychologist or required treatment for her mental health. She described herself as the family’s “black sheep” because she was travelling, skydiving, and working behind the scenes with animals at the zoo. She said the hoarding problems began after the events at work. She said she had had problems making decisions about what to do with the things in her home, and they gradually accumulated. Self-harm occurred after the injury.
She has dyslexia.”
The Medical Assessor described Ms Masters’ social activities and activities of daily living. We set out the relevant aspects of that history when considering the appeal with respect to the PIRS tables below.
Setting out his examination findings, the Medical Assessor said:
“She was alert and oriented. I estimated her intelligence to be in the average range. There were no overt cognitive deficits during the examination. Her insight and judgment were intact.”
Summarising the injuries and his diagnoses, the Medical Assessor wrote:
“Ms Masters is a … former food services worker who developed a major depressive disorder in the context of perceived workplace bullying over many years. Her condition has progressed to DSM-V persistent depressive disorder consistent with the chronicity of her condition.
She reported depressed mood and loss of pleasure in previously enjoyed activities for most of the day, for more days than not for at least two years. She described insomnia, impaired motivation, lowered self-esteem, impaired concentration, depressive ambivalence and depressive thoughts. She described changes in appetite, weight gain, and anhedonia.
She has never been without the symptoms described above for more than two months at a time. There is associated functional impairment compared with her pre-injury function.
In my view, she does not meet DSM-V criteria for a hoarding disorder, and her hoarding behaviour can be explained by depressive ambivalence and apathy. The hoarding began with the onset of the major depressive disorder associated with her work-related injury. No clinical records have been provided to suggest otherwise. She may meet the criteria for obsessive compulsive disorder, although these behaviours have moderated and only began after her difficulties at work. No clinical records have been provided to suggest otherwise.
They were aggravated by the COVID pandemic and the fact that she was concerned about her elderly parents. I consider this to be an aspect of the work-related injury, and the anxiety described and somatic preoccupation is consistent with features of a mood disorder.”
The Medical Assessor provided a detailed summary of the evidence in the file, explaining where his opinion differed. He said:
“Clinical notes from King Street Medical Centre noted a history of anxiety in 2008, and problems with managing her TAFE course were noted repeatedly. She was noted to have a history of glaucoma. She was noted to have a range of non-contributory minor medical issues. On 14 May 2020, Dr Victor Huang noted that they had discussed the combination of health and anxiety, OCD and anxiety complicating all her issues. I note that the active and pre-existing anxiety disorder has contributed to her current impairment due to the crossover of symptoms. This was aggravated during the COVID-19 pandemic.
On February 1, 2020, Dr Dong Hua, noted a grandfather with depression had ECT and confirmed that she had been in a relationship with Jack and that she had lost an ex-partner at some point. I note there is a pattern of frequent presentations for care. She was noted to have started on escitalopram in January 2019 on 2 March 2019. There were references to difficulties with her father throughout the notes. On 17 January 2019 Dr Michael Pham noted her mood was labile, upset and angry, down at other times, feeling hopeless work is hard, goes home and looks after mum is hard, broke up with partner recently, has financial problems as well. She was started on escitalopram. She was noted to have broken up with her partner near Christmas on 3 January 2019. She was noted to have difficulties with insomnia throughout the notes and there were repeated references to stress at work. The notes commenced on 28 May 2018.
A record of previous prescriptions noted multiple scripts for hypnotics, a script for mirtazapine 50mg in August 2016, scripts for benzodiazepines (not to the extent of a benzodiazepine use disorder) and repeated scripts or Mersyndol. She was noted to have difficulties coming off at one point in her clinical notes. Clinical notes from the psychologist indicated treatment with cognitive behaviour therapy.”
The Medical Assessor said that Ms Masters did not suffer from relevant previous injuries, pre-existing conditions or abnormalities.
Social and recreational activities
The Medical Assessor gave the following reasons for assessing Ms Masters in class 3, moderate impairment:
“Ms Masters occasionally rarely socialises. She attends puppy school regularly but does not become actively involved. She regularly walks her dogs and she cares for her animals but has no other hobbies. She occasionally socialises with her sister and visits her aunt every three months. She mixes independently with people at TAFE but does not become actively involved. I consider this consistent with a moderate impairment.”
In the body of the MAC the Medical Assessor said:
“She said she rarely goes out. About three weeks ago, she went out with her sister when she drove her to the shops because her sister had recently had spinal surgery, and they had lunch. She prefers not to go to the shops because she does not want to be around people and has no money to spend. She does her pet shopping online. She can pop into Woolworths or the chemist as required but does not want to linger.”
In the PIRS assessment, the Medical Assessor used the language of both class 2 – occasionally – and class 3 – rarely. Though Healthshare highlighted his use of the words “not actively involved” to argue that assessment in class 2 was appropriate, those words are used in both classes.
The history that the Medical Assessor obtained shows that Ms Masters is socially isolated and undertakes little recreational activity. Those recreational activities she does undertake are generally solitary, such as walking her dogs. Ms Masters said in her statement that she would rather not talk to people out in public and that she has become detached and withdrawn from society.
Healthshare submitted that there was no reference to a support person but the assistance of a support person is less relevant where the only strictly social activities that Ms Masters described are occasionally socialising with her sister and visiting her aunt. The Medical Assessor said “they visit her mother’s sister every three months”, implying that she does not go alone. In any event, the evidence in the file shows that Ms Masters does not participate in the kind of events where a support person may be relevant.
We agree that assessment in class 3 was correct.
Concentration, persistence and pace
The Medical Assessor gave reasons for assessing Ms Masters in class 3 – moderate impairment:
“Although she has been undertaking a standard course, she has required substantial support and has struggled. She has difficulties focusing because of fatigue and headaches. She is apathetic and has trouble making decisions and organising herself. I consider this consistent with a class 3 moderate impairment.”
Describing Ms Masters’ activities the Medical Assessor said:
“She attends TAFE on a Thursday for a full day. She does not have to talk to people during class and does not socialise over lunch. She takes her phone out and plays with her phone to distract herself. She said she is the oldest student and has not made any friends. She said it is an eight-hour day, 9 to 4.30. She said that if it is stressful, she gets a headache and takes Panadol, and she is relieved when the day is over. She is passing her subjects with assistance.”
The Medical Assessor referred to Ms Masters’ statement and said:
“In the statement of the Applicant, dated 1 March 2024, she noted symptoms of anxiety and depression that were ongoing. She noted functional deficits associated with the injury. She noted she was enrolled in a Certificate 3 in Animal Care, having previously completed a Certificate 2. She noted she found it difficult to concentrate and comprehend the learning tasks and was getting help from the disability teacher at TAFE. She is easily stressed. She is distracted. She has trouble absorbing information. She often has headaches.”
That statement is consistent with the notes from Ms Master’s general practitioner and her psychologist, Mr Hurmoz, which document her experience of attending TAFE.
Mr Hurmoz wrote on 8 February 2023 that Ms Masters was “not wanting to go back to TAFE as it is challenging and takes her out of her comfort zone”. The references to challenges continued but on 1 March 2023 Mr Hurmoz note that Ms Masters had come to an agreement with her teacher for assistance with an assessment. On 9 March he noted that Ms Masters’ motivation was building “as she finds her place and achieves more at tafe.” On 15 March Ms Masters spoke of long days but also good days as she had passed an exam. In April 2023 Mr Hormoz recorded that Ms Masters had challenges adjusting to computers. Mr Hurmoz documented Ms Masters’ struggles with her course but his notes show that she continued with it.
Her general practitioner’s notes and those of her psychiatrist are to similar effect. Dr Kuljic offered to write a special consideration letter on 21 March 2023. Dr Kako noted on 28 June 2023 that she had successfully passed the course and his notes confirm that was the Certificate II.
The evidence shows that Ms Masters has completed a Certificate II in Animal Care and is undertaking Certificate III, with assistance. She said in her statement that she is assisted by “the disability teacher.” There is nothing in the evidence to show if that assistance is provided because of her injury or because of dyslexia.
The examples for class 2 in the PIRS are:
“Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
Those examples are consistent with Ms Masters’ history. She has completed one course and started another, which she continued to undertake as at the date of the MAC. While she requires some assistance, she has completed the course in a reasonable time frame and her experience falls squarely in class 2. The Medical Assessor was in error to assess her in class 3.
Employability
The Medical Assessor assessed Ms Masters in class 5 because he said she was totally impaired and cannot work at all. He said:
“She said she was terrified about going back to work. She dreads it. She has been out of the workforce for a long time and is anxious about trusting people again. She feels she has lost her confidence. She volunteered at the Animal Welfare League for four weeks, but cleaning mouse faeces caused her allergies. She was unhappy with the staff's behaviour and treatment of the animals.
She is applying for jobs on Seek, such as an animal attendant with the Animal Welfare Leagues or RSPCA. She said she has been looking for grooming work. She has had phone interviews, which never led to a face-to-face interview. She is looking for whatever work they have to give. I note she is certified 15 hours capacity per week. She said her mood is unpredictable; she has inconsistent good and bad days. She is not sure how long she will be able to work consistently. She would prefer to work independently, for example, as a dog groomer or animal attendant.”
Dr Saboor assessed Ms Masters in class 3 as did Dr Ahmed. Her general practitioner has certified her fit for 15 hours work per week and signed off on part time work options with animals in 2022. That recommendation led to Ms Masters’ commencing her TAFE courses. She is looking for appropriate employment.
The examples for assessment in class 4 are:
“Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
Based on Ms Masters’ history to the Medical Assessor, he was in error to assess her in class 5. Ms Masters engages in activities to prepare for work, and performs activities that are compatible with work and is certified to have some work capacity. She is not devoid of work capacity, but her capacity is limited to less than 20 hours per fortnight. The correct assessment is class 4.
Section 323
The reference in the MAC on which Healthshare relied to argue that there should be a s 323 deduction is brief and has been taken out of context. The Medical Assessor said that an “active and pre-existing anxiety condition has contributed to her current impairment” in his description of the notes from Ms Masters’ general practitioners.
In her statement, Ms Masters said that she was subjected to bullying and harassment when she was transferred to the mental health unit of the hospital on a relieving basis in 2013. She said that she sought treatment then. She continued to work until the deemed date of injury in 2022. The Medical Assessor accepted that the events that contributed to the injury dated back to 2013.
A medical certificate dated 18 September 2013 completed by Dr Hua certified Ms Masters’ unfit for two weeks as a result of major depression. Dr Kuljic, Ms Masters’ treating psychiatrist, noted that symptoms of depression had been diagnosed and treated from 2013. That is consistent with Ms Masters’ history that she began to suffer symptoms as a result of work from that time.
Ms Masters saw Dr Saboor at the request of her solicitors. He obtained a history consistent with her statement and he did not make a deduction under s 323.
Dr Ahmed saw Ms Masters at the request of Healthshare. He explored the history of injury dating back to 2013 in some detail. He said that Ms Masters’ had a decade long history of a hoarding disorder. He assessed 15% WPI and deducted one-tenth for a hoarding related disorder because he considered that disorder overlapped with obsessive compulsive disorder, which is a serious anxiety disorder and unlikely to be independent from the work related component. Dr Ahmed did not accept that Ms Masters suffered bullying and harassment but considered that her condition was related to employment because “she was becoming increasingly anxious, more self-conscious and unable to cope with the demands.”
The Medical Assessor said that there were no records to show that Ms Masters had a hoarding disorder or obsessive compulsive symptoms before the injury. He said that the hoarding problems began after the events at work. Despite Dr Ahmed’s opinion, Healthshare did not submit otherwise. The ground of appeal relates solely to the reference to the “active and pre-existing anxiety disorder.” When it is accepted that the events which contributed to the injury date back to 2013, there is no active, pre-existing disorder.
The Medical Assessor provided a brief summary of the general practitioners’ notes. He noted repeated references to stress at work. The notes show reasonably frequent attendances for a variety of conditions including anxiety and of prescriptions for relevant medication.
There are numerous entries in the notes to support the contention that the injury resulted from events dating back to 2013. In addition to the matters that the Medical Assessor referred to, we note that Dr Hua prepared a report dated 9 August 2016 noting that Ms Masters had suffered depression and anxiety for the past few years, among other conditions, explaining why numerous sick leave days were required.
In an entry dated 14 October 2019 to which the Medical Assessor did not refer, Dr Karimi recorded that “job has been stressing her, there are people at work who bother her too much…” On 7 February 2020, Dr Hua recorded that Ms Masters spoke to her supervisor and “broke down, still getting anxiety.” On the following day Dr Hua noted that she was taking Endep, Lexapro and valerian. Ms Masters’ medication was changed to Pristiq soon after, with Dr Hua noting on 19 February that she had been on Lexapro for a year. Ms Masters saw a psychologist, Ms Chau, at her general practitioners’ practice.
In about March 2020 Dr Hoang noted on a number of occasions that Ms Masters suffered an increase in anxiety when going to work “re coronavirus situation”.
Ms Masters saw Dr Desai, a physician specialising in sleep and respiratory disorders on 8 April 2020. He noted the medication she took and the role of anxiety in her sleep issues.
It is clear from the MAC when read as a whole that the Medical Assessor accepted that the events that caused Ms Master’s injury dated back to 2013 and that the reference to an active and pre-existing disorder was not a condition that was unrelated to work. A Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [3] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[3] At [36].
The Medical Assessor’s opinion is consistent with the evidence in the file. His summary of the injury and diagnosis demonstrates that he did not consider that a deduction was warranted. The evidence supports his assessment and we agree that there is no basis for a deduction under s 323.
Reassessment
The assessment under the PIRS is therefore class 2 for each of self care and personal hygiene, travel, social functioning and concentration, persistence and pace. Social and recreational activities falls into class 3 and employability in class 4.
When those scores are arranged as required by paragraph 11.14 of the Guidelines, the total is 15 and the median class score is 2. Under Table 11.7, those scores convert to 8% WPI.
For these reasons, we have determined that the MAC issued on 26 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1756/24 |
Applicant: | Tracey Masters |
Respondent: | Healthshare NSW |
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 Clayton Smith and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| 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 AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric injury | Chapter 11 | N/A | 8% | Nil | 8% | |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0
3
0