Holmes v State of New South Wales Hunter New England Local Health District
[2022] NSWPICMP 308
•28 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Holmes v State of New South Wales - Hunter New England Local Health District [2022] NSWPICMP 308 |
| APPELLANT: | Michele Holmes |
| RESPONDENT: | State of New South Wales - Hunter New England Local Health District |
| APPEAL PANEL: | Member Deborah Moore Medical Assessor Nicholas Glozier Medical Assessor Douglas Andrews |
| DATE OF DECISION: | 28 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – The appellant appealed the assessments in two of the Psychiatric Impairment Rating Scale categories; although there were some aspects of the appellant’s presentation that could have led to a higher rating the Medical Assessor’s (MA) assessments were open to him on all the evidence; Ferguson v State of New South Wales applied; ultimately a case of medical minds differing; Held — No errors by MA; Medical Assessment Certificate (MAC) confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 April 2022 Michele Holmes (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Hong, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 30 March 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 medical assessment certificate 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. Although one was requested, we are satisfied that we have sufficient evidence before us to enable us to determine the 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 his assessment in the Psychiatric Impairment Rating Scale (PIRS) categories of self-care and personal hygiene and concentration, persistence and pace (CPP).
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 primary psychiatric/psychological condition resulting from an injury on 7 May 2020.
The MA obtained the following history:
“Ms Holmes had worked at Hunter New England LHD for about fifteen years as a full-time administration officer. She had no secondary employment. She stopped work in June 2019 and has not performed other work since.
She reported that stress at work started around February 2019 and persisted for about four to five months until she stopped working in June 2019. She stated she was bullied, her manager picked on her, she was then ostracised by all other co-workers. There were 45 people there, they all refused to talk to her and she does not know why.
Ms Holmes said some workers made statements to QBE and they were coached by her manager as to what to say.
She was called to a meeting and her manager made accusation against her. She repeatedly sought help from HR, but said they never acknowledged the problem she experienced. She could not cope in the end and had a breakdown and felt unable to return to work. She also reported that she had brought various issues to her manager, but they were never addressed.
She said her work performance was never a problem, but her manager moved her to be closer to the office and continued to pick on everything she did.
Ms Holmes reported she started having treatment with an on-site counsellor and then had further counselling with her psychologist.”
Present treatment was noted as follows:
“Ms Holmes consulted Cameron McAndrew, psychologist, over eighteen months. The last time was may be a year ago. She consulted Dr Stuart Saker, Psychiatrist, only for one session…. Dr Saker asked her to stop Efexor as it was not effective and suggested sertraline, which she took at 50 mg but it was too sedating. Sertraline was stopped a few years ago and she has not been on any psychiatric medication maybe in the last two years… Ms Holmes does not have current psychological or psychiatric treatment.”
Present symptoms were described as follows:
“Ms Holmes reported she suffers depression and anxiety and she feels lost. She said she lost all her skills, her life has been ruined by her work. She said she should be ‘in the big job now’, but she has lost everything. She cannot leave home because she suffers severe anxieties…
On specific enquiry, Ms Holmes reported experiencing the following symptoms:
·Disrupted sleep.
·Depressed, variable and angry mood.
·Reduced enjoyment and motivation.
·Subjectively poor concentration and term memory
·She felt she has lost confidence in her ability.
·Fleeting suicidal thoughts.
·Being anxious.
·Panic attack-like symptoms.
· Being irritable.
· Being socially withdrawn.
Ms Holmes denied having self-harmed, ever having experienced symptoms of psychosis.”
The MA then set out in considerable detail Ms Holmes’ prior psychological history, but since that is not relevant to the issues in dispute, we do not propose to repeat his comments here.
As regards her activities of daily living (ADL’s) the MA said:
“Ms Holmes is living on her own with her two dogs.
She has a daughter who is 26, and has not been in contact with her for about eighteen months.
Ms Holmes said she stays at home and stares at the wall all day. Sometimes she has music or the radio on, but often she would just sit there and do nothing all day. She does not watch television. She goes to the shop once a week, she said mostly to pick up food for her dogs. She said she cared more about her two dogs than herself. She said she does not walk her dogs very often.
Ms Holmes’ mother is too far away, so she only speaks to her by telephone a couple of times a week. She is 87. Her two sisters are in Perth and Tamworth and they rarely talk. She said she has no friends anymore. On specific enquiry, she confirmed she has two friends and said that she does not see them at all. Later, she did confirm that about two months ago, her two friends visited her at home and stayed for a few hours. In the last 12 months, they might have visited her maybe three times. She said they have phone contact maybe a couple of times a week. She said they called to check on her.
She does not care about showering and does not eat regularly. She said she does not remember whether she had eaten or not because her memory is poor.
Ms Holmes said she was driven by a driver provided by the QBE from her Central Coast home to her solicitor’s office in Parramatta today as she is not able to drive alone for that distance. She said she could only drive maybe 8 km to her doctor’s surgery.
She said she does not go on holidays and that she has been living on her own in the last three years. She cannot read books, newspaper, or watch TV.
She does not go to the gym.
Normally, she said she was very sociable. She was in a walking group, went to the gym. She liked to swap books with people and go out for lunch with her friends.
She said sometimes she is so anxious she would Zoom her GP rather than going in person.”
Findings on examination were reported as follows:
“Ms Holmes was assessed by videolink. She was at her solicitor’s office during the assessment. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment. The assessment took 65 minutes.
Ms Holmes was bespectacled and her hair was tied back. She presented as guarded. There was no psychomotor slowing, agitation, stereotypy or abnormal movements. She was moderately restricted in her affect range and reactivity.
Ms Holmes was keen to speak and gave long and detailed answers, and spoke spontaneously. She provided a coherent history. She recalled a reasonable amount of detail regarding her work, and limited history regarding her past psychiatric history.
She remained attentive during the assessment and was not distracted. There were no difficulties in alternating between topics and staying within topics. She maintained a normal processing speed.
At the end of the assessment, I asked Ms Holmes for additional information that she thought may be relevant and she discussed her life is ruined, she cannot function, she does not want to be around anymore, she does not know what her life would be like, she does not want to stare at the wall all day but she has done it for 3 years, no one cares, QBE does not care, she has no purpose, she was good at her job and worked hard and climbed the ladder, it was all taken from her, she does not trust anyone now, everyone has a vendetta against her, she has no confidence and is a shell of a person, her manager is still at work making big bucks, she is a person with scruple and respect.
She asked what is the next step in the PIC process. I discussed I would re-read her file and report to the PIC.”
The MA then conducted a cognitive assessment which he reported on as follows:
“Registration:
Ms Holmes mentally registered 3 items on the first attempt. I repeated the same items. She mentally registered 4 items on the second attempt. I repeated the same items. She mentally registered 3 items on the third attempt. I noted she recalled fewer items with repetition.
Short-term recall:
Ms Holmes recalled 3 items after a few minutes.
MOYB:
When asked to name the months of the year in the reverse order from December, she was slow and recalled December, November, October, September, long pause, August, long pause, July, June, long pause, March, pause, April, pause, ‘I do not know’, February. She said she tried very hard.
MOYF:
When asked to name the months of the year in the normal order from January, she was slow and omitted August.
Verbal Fluency:
Ms Holmes was able to generate 3 words starting with a specific letter of the alphabet within 60 seconds.
This is inconsistent with her verbal fluency during the assessment.”
The MA summarised the in juries and diagnoses as follows:
“Ms Holmes presented as an inconsistent historian, and I tried to reconcile the history in her file with that which she provided during my assessment, as well as two different assessors and her clinicians over time.
Overall, my view is that she suffered depression and anxiety previously and has been on long-term antidepressant medication. It is unclear what is the extent of her psychological impairment immediately before the workplace problem started. She reported that her daughter threatened to kill her many years before the work stress started and her GP record suggested that it was more recent. She had been on Efexor when work stress started, which had offered some benefits overall.
There is consensus that Ms Holmes suffered chronic depressive symptoms and I have also diagnosed persistent depressive disorder as I do not believe she meets major depressive disorder criteria at present.”
He added:
“Ms Holmes’ cognitive assessment results are invalid and not consistent with her exhibited cognitive capacity during the assessment. Therefore I have excluded her test results from the PIRS assessment.
I have discussed inconsistencies in different parts of the MAC.”
The MA assessed 9% WPI from which he deducted one-tenth for a pre-existing condition, leaving a total WPI of 8%.
He then turned to consider the other medical opinions stating:
“Dr Christopher Canaris, IME psychiatrist, 13 January 2020, noted Ms Holmes has been off work since June 2019. She moved into a new position in January 2019 after having been off work in December 2018 for left shoulder reconstruction and took twelve months off work. Then, problems started with her new manager. She started Efexor some years previously when her father passed away suddenly, maybe ten years or more, and stayed on Efexor over the years. Her daughter went away at age fourteen. Ms Holmes did not want to talk about her daughter other than she has PTSD and somebody went to jail for it. He noted Ms Holmes made it clear that her family law problem had settled before the onset of workplace problem. Her condition had not stabilized at that time.
Dr Christopher Canaris, 16 March 2021, noted Ms Holmes took Zoloft which did nothing for her and stopped Efexor. She saw Dr Saker once. She has severe anxiety attacks. She does not cook and relies on microwaved meals and stays in pyjamas for a few days at a time. Her weight fluctuates because of stress. Her concentration is terrible. She cannot even read newspapers or books and cannot hold conversation. She feels like a failure. He advised that previously he diagnosed major depressive disorder and she now qualified for persistent depressive disorder and persistent major depressive disorder. His WPI came to rating of 24%.
Ms Holmes’ GP record was noted.
Dr Stuart Saker report was noted. On stress leave since June last year due to workplace bullying. Her father passed away suddenly and she had depression. Daughter had PTSD/? bipolar disorder. He diagnosed major depressive disorder, panic disorder, agoraphobia and made suggestions to treatments.
Ms Holmes’ psychologist’s report had been noted. This was management for anxiety attack.
Ms Holmes’ GP records: Dr Darji, with first entry 4 March 2019 noted split with partner. Daughter mentally unwell and threatened to kill her. Past history includes anxiety, taking Efexor 225 mg. On 5 June 2019, Dr Darji wrote experiencing bullying at work, having anxiety attacks. Dr Darji, 16 July 2019. She has been on Efexor for many years, at least 14 years since father died. She was not too sure what it was for. She explained depression and anxiety and Ms Holmes agreed she suffered from them in the past.
Dr Graham Vickery, IME psychiatrist reported on 27 July 2021, wrote there was no reported past psychiatric history or family history. He noted the workplace bullying and harassment and does not believe further treatment would likely be beneficial. He diagnosed persistent depressive disorder and a WPI of 8% with no deduction for pre-existing condition.
In terms of WPI rating, Dr Canaris rated Ms Holmes’ self-care and personal hygiene as a 3. I took a history that she does not shower or eat regularly, but she can perform all self-care independently and has been living on her own for three years, and I rated 2 as she is capable of independent living with some neglect.
Dr Canaris rated Ms Holmes’ concentration, persistence and pace at 3 based on her reported history. In my assessment, I have not identified impairment on mental state examination, and based on the reported history and mental state examination my view is that she likely has mild impairment and I have rated 2.”
Dealing firstly with the assessment as regards Self-care and personal hygiene, the MA assessed a Class 2 impairment adding:
“Ms Holmes reported neglecting her self-care. She said she does not shower or eat regularly. She is capable of independent living without regular support and has done so in the past 3 years.”
The descriptor for a Class 2 rating reads: “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.”
The appellant submits as follows:
“For a Class 3 impairment for Self-care and personal hygiene the guidelines provide; ‘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.’
The overwhelming evidence supports a finding that the appellant’s impairment is moderate in this context and that the MA has failed to appropriately consider the entirety of the evidence before him.
It is submitted that, clearly, the part of the reason that informed the MA to reach a decision that the appellant had a stage 2 mild impairment was the second part of the above statement, with regard to the appellant being capable of independent living without regular support. We submit that this is not a factual finding that was available to the MA or should have been made by the MA.
The appellant lives alone. This is an unfortunate product of a broken family that is set out in the history… the appellant's isolation has been exacerbated by the effect of her psychological injury.
The appellant, however, does receive regular support with activities of daily living. As at the date of the assessment the relevant workers compensation insurer provided and funded, a service provider once a fortnight for 2 hrs. The assistance provided to the appellant through this service including such things as changing bed sheets & making the appellants bed, doing washing and hanging the washing out, cleaning the bathroom, mopping, vacuuming, and generally maintaining the house.
Dr Canaris assess the appellant as having a class 3 impairment for self-care and personal hygiene and notes the following history: ‘She has days where she does not shower and stayed in her pyjamas for a few days at a time which might be just about every day. She often misses meals, but her weight fluctuates because of the stress. She does not cook relying on microwave meals. She does not do any housework ~ she has a person come and do her housework every two to three weeks citing her lack of motivation.’ (our emphasis)
The above recorded history is inconsistent with the finding by the MA that the Appellant is capable of independent living without regular support.
The MA has not taken a history with respect to the care provided to the appellant. In view of the evidence provided to the MA clearly this history should have been taken. We would submit that this history should have been taken in the context of a reasonable assessment in any event however no proper inquiry of this aspect of the appellant's incapacity appears to have been made.
We note that the relevant part of the guidelines provides that for a class 3 impairment a family member or community nurse visits (or should visit) 2 to 3 times per week to ensure minimum level of hygiene and nutrition.
It is submitted that the words or should visit reflect that for some people, such as the appellant, who is largely estranged from her family, visits of that frequency are not a financial or social reality. The appellant has accessed that care and assistance which is available to her through the workers compensation system to keep a minimum standard of hygiene in her house.
In the appellant's statement…the following evidence is given:
‘I suffer from significant lack of motivation including a lack of motivation to attend to my own personal hygiene and I rarely shower. I often forget to eat and I often miss meals and usually only eat once a day. Due to my lack of personal hygiene I have issues such as my hair has begun to fall out and I suffer from skin irritation due to a lack of cleanliness. I often suffer from suicidal thoughts. I could spend up to 2-3 days in my pyjamas not leaving the house at a time.’
Indeed, the MA does himself appear to acknowledge significant deficits in regard to self-care and hygiene.
For the reasons outlined above, we submit the MA erred in allocating a Class 2 for self-care and personal hygiene.”
We understand why the appellant submits that the evidence supports a Class 3 rating.
Having said that, 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’ (our emphasis).
[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’…”
In the present case, we make the following points.
The appellant can and does live alone, and has done so for some years, as noted by the MA.
The MA also accepted that the appellant was “neglecting her self-care” and did not shower or eat regularly.
As the respondent also points out, “although she has assistance from a service provider once a fortnight for 2 hrs, this does not equate to support 2-3 times per week” or the level of 'regular support' that if withdrawn would prevent independent living as noted in the descriptor for class 3.
There are aspects of the descriptor for a Class 3 rating which may fit the appellant’s circumstances, for example, “frequently misses meals.” However, some other aspects of the descriptor such as “Can't live independently without regular support” and “Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition” do not.
It is not uncommon for people to as it were “fall between” two classes, and in such circumstances, as pointed out above, “the pre-eminence of the clinical observations cannot be underrated.”
We also accept that the descriptors are “examples only” and are not a full description of an individual’s particular circumstances such that again, the assessor’s observations at the time of the assessment are significant.
In our view, for the reasons outlined above, it was open to the MA to assess a Class 2 rating in this category.
Turning next to the category of CPP, the appellant submits that the MA should have assessed a Class 3 rating in line with the opinion of Dr Canaris.
The MA assessed a Class 2, stating:
“Ms Holmes described having poor concentration. Her mental state examination is consistent with 2. My assessment is that she can focus on intellectually demanding tasks for 30 minutes, and she has the cognitive capacity to completed in a basic course.”
The descriptor for a Class 2 reads:
“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.”
The descriptor for Class 3 reads:
“Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The appellant submits as follows:
(a) In her statement the appellant said:
“I lack the concentration to read books or newspapers. I struggle even to watch the television and usually just watch without taking things in. I lack motivation in general and it is a struggle to attend to basic tasks.”
(b) Dr Canaris, in his report dated 16 March 2021 takes the following relevant history:
“Her concentration is ‘terrible I can't read a book it's even hard for me to read the paper.’ She watches TV ‘on and off not a lot’ and avoids films or series saying, ‘I just can't do the concentration on it.’ She is particularly upset by her forgetfulness saying, ‘The other day I couldn't remember what I'd had for dinner the previous day.”
(c) There does not appear to be a relevant history taken, or any evidence given or obtained, that would support the finding that she could do an intellectually demanding task for 30 minutes or complete a retraining course.
(d) The MA takes the following relevant history on examination:
“(The appellant reports) Subjectively poor concentration and term memory. She said she does not remember whether she had eaten or not because her memory is poor. She cannot read books, newspaper, or watch TV.”
(e) The MA performed a cognitive assessment but then indicates that in his opinion the results are invalid and have therefore been disregarded.
(f) It is not apparent from any part of the determinative process used by the MA, how a conclusion that the appellant could focus on an intellectually demanding task for 30 minutes or do a retraining course was made. There is simply no evidence that has been adduced or anything that appears on the face of the MAC itself that would support, or give credence, to such a finding.
(g) Indeed, the finding by the MA in this category would appear to be incongruous with the finding that the appellant is rated in Class 5 for employability, i.e. she cannot work at all. It is submitted that if someone is totally unable to work to any extent whatsoever, they probably cannot do a retraining course or concentrate on intellectually demanding tasks for 30 minutes at a time.
(h) The overwhelming evidence supports a finding that the appellant’s impairment is moderate and the MA has failed to appropriately consider the entirety of the evidence before him.
We repeat the comments made above as regards the task of an appeal panel.
Again, we also agree that there are aspects of the descriptor for a Class 3 rating which may fit the appellant’s circumstances, for example, her difficulties with concentration which were in fact acknowledged by the MA.
And as we said earlier, it is not uncommon for people to as it were “fall between” two classes, and in such circumstances, “the pre-eminence of the clinical observations cannot be underrated.”
In this case, the MA conducted a thorough mental state examination in addition to his cognitive assessment, The assessment itself is a cognitively demanding task that enables an objective evaluation of an appellant’s impairment in concentrating and persisting with such a task, and the pace at which an appellant can do this. The MA recorded that Ms Holmes “gave long and detailed answers, and spoke spontaneously. She provided a coherent history. She recalled a reasonable amount of detail regarding her work, and limited history regarding her past psychiatric history. She remained attentive during the assessment and was not distracted. There were no difficulties in alternating between topics and staying within topics. She maintained a normal processing speed. He concluded that the appellant’s abilities in this category were mildly impaired and consistent with the general descriptor of a Class 2 rating.
In our view, the MA’s assessment was open to him on all the evidence and his own findings on examination.
In summary, the thrust of the appellant’s submissions in both the PIRS categories referred to is that the MA should have adopted the assessments made by Dr Canaris.
This is a clear case of medical minds differing. “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.”
There is no evidence that the MA’s categorisations were “glaringly improbable” or that he was unaware of “significant factual matters” or that “an unsupportable reasoning process could be made out.”
Indeed, in our view the MA conducted a detailed examination. He obtained a clear history from the appellant , assessed a broad range of aspects of impairment in CPP, outlined in detail the inconsistencies identified, and gave reasons why he disagreed with the opinion of Dr Canaris.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 March 2022 should be confirmed.
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