Lang v Secretary, Department of Communities and Justice
[2024] NSWPICMP 849
•10 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lang v Secretary, Department of Communities and Justice [2024] NSWPICMP 849 |
| APPELLANT: | Robert Lang |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 10 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in his assessments with respect to five categories in the psychiatric impairment rating scale, namely self-care and personal hygiene, travel, social functioning, concentration, persistence and pace and employability, and failed to consider the effect of treatment in his assessment of impairment, having regard to Clause 11.8 of the Guidelines; the Panel found errors in some categories; no error regarding treatment effects; the worker was taking significant medication for his injury; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 October 2024 Robert Lang (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
6 September 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor 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 Medical Assessor erred in his assessments with respect to five categories in the psychiatric impairment rating scale (PIRS) namely Self-care and Personal Hygiene, Travel, Social Functioning, Concentration, persistence and pace and Employability.
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 Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on
2 June 2022.The Medical Assessor obtained the following history:
“Mr Lang said that his psychological injury ‘built up’ over a period. He was assaulted four times in the last two and half years of his service. He witnessed several other assaults involving inmates and other colleagues.
He says that the last incident was on 31 May 22, but he had been struggling for 5 years. He had been working in the supermax prison for sixteen years. He says that an inmate punched him on the jaw without any warning, which broke the skin inside his mouth. He says that there was no fracture, but there was a lot of bleeding. He suffered another injury to his thoracic spine when he and a colleague restrained the inmate. He had been assaulted previously on several occasions. He finished his shift on
31 May 22 and then worked for the next two days. On 02 June 22, he had to respond to a cell fire. He says he was writing the final report from the incident and found out that the management had packed up and left, which was the last straw and was ‘done’. He said that he saw his doctor that evening, and has not worked since. He has not attempted to return to work or been employed by any host either.He says that he has been tried on several other medications. He was admitted to St John of God Hospital on four occasions. His first admission was for five weeks and his most recent admission was three weeks in May/June 24. He has attended some outpatient PTSD and anxiety treatment courses as well. He has not received any neurostimulation treatment and says that he has not received EMDR either.”
The Medical Assessor continued as follows:
“Present treatment:
Mr Lang is currently on Rosuvastatin 10mg, Desvenlafaxine 250mg, Valproate 1000mg, Clonidine 100mcg, Prazosin 2mg, Thiamine100mg and Pramipexole1.5mg. He sees his psychiatrist, Dr Malik, fortnightly and his psychologist, Mr Matthew Taylor.
Present symptoms:
Mr Lang said that his mood is low ‘most of the time.’ He feels happy in his children’s and grandchildren’s company. He says that he feels anxious all the time and suffers panic attacks occasionally. He says that he has lost his libido. He avoids crowded situations to prevent panic attacks. He says he is very ‘easily startled’ and describes being hypervigilant when out. He says he feels paranoid at home and constantly carries out security checks. He says that his sleep is impaired. He does not have initial insomnia but wakes up with nightmares. He wakes up several times during the night. He feels tired during the day. He says that he does not experience flashbacks regularly, but they can occur if he comes in contact with anything connected with corrections, even their transport truck. He avoids ongoing anywhere which reminds him of his place of work. He has become angry and had a road rage incident eighteen months ago after someone failed to give him way in his local town. He says that he tailgated the person for thirty minutes in anger. He feels embarrassed about it now but says that he still feels irritable. He wants to get better and remains hopeful about his future. He says that he has had suicidal thoughts but has never attempted it.
He does not feel that he has experienced any improvement with the treatment that he has received.”
When asked about details of any previous or subsequent accidents, injuries or conditions, the Medical Assessor said:
“He says he had a good childhood and his parents were loving. He denies suffering from any form of abuse or trauma. Both of his parents have a history of suffering from depression. Mr Lang says that his family home burned down when he was nine years old. No one was injured and he was not in danger during the incident. He says that he felt shocked, but there was no lasting trauma. His father’s leg was amputated because of gangrene when he was fourteen years old. That too was traumatic but did not cause any lasting trauma either. He suffered a lower back injury in 1992, which needed surgical intervention, but has been physically well otherwise.”
As regards Mr Lang’s activities of daily living, the Medical Assessor said:
“Mr Lang says that he does not function properly. He says that he has become forgetful ‘to the point of being pathetic.’ He forgets his scripts and has been on a Webster pack. He forgets to take his wallet and phone when he goes to appointments. He has stopped looking after his family’s finances. He says he cannot focus on TV for over thirty minutes. He used to be an avid reader but has had to reread chapters and has stopped reading. He attends his appointments on time ‘mostly’ by keeping reminders on his phone. On a typical day, he gets out of bed at 7 AM and has a coffee and Weetabix. He flicks through news headlines on his phone. He takes his dog for a walk most days. He is trying to train his dog to be an assistance dog. He is getting on well with the training course but is struggling with online coursework. He washes his face and hands after getting up, but his hygiene has ‘slipped.’ He does not shower daily and gets reminded by his wife. He can wear the same clothes for four days. He does not shave regularly but does clean his teeth daily. He eats regularly but does not cook much. He has put a ‘fair bit of weight on’ a particular medication and has lost it since he was taken off that. Mr Lang owns his family farm, which his children manage. He goes there for a wander but is not involved in any activities. He lives with his wife. He says that he started drinking excessively after he was initially diagnosed but now only drinks if his son or son-in-law visits. He says that he managed to reduce his alcohol use on advice from his psychiatrist. He says he avoids being around people but gets along well with his family. He says there has been some strain in his marital relationship, but it is ‘sort of okay.’ He is unable to enjoy his children’s company for more than an hour. He can go to the shops if needed, but not in Goulburn, as there are ‘too many prison officers and ex-inmates.’ He has had panic attacks in crowded places. He says that he can drive for forty-five to fifty minutes. He says that he could travel to new places if needed. He does not think that he can ever return to corrections. He may be able to contribute to the family farm but cannot run it on his own.”
No specific findings on mental state examination were reported.
The Medical Assessor summarised the injuries as “chronic post-traumatic stress disorder and chronic major depressive disorder.”
He added:
“In my opinion Mr Lang’s symptom burden fulfils the criteria needed to diagnose PTSD and major depression in accordance with DSM-V. He has experienced several traumatic incidents over a period which would fulfil their severity criterion cumulatively.
His presentation was consistent with his stated symptoms and clinical documentation.”
The Medical Assessor assessed 13% WPI.
He then summarised the evidence before him and said:
“Psychiatrist A/Prof Michael Robertson provided an independent medical examination report dated 11 December 23. He advised that the diagnosis was chronic PTSD and chronic major depressive disorder. A/Prof Robertson assessed Mr Lang to have suffered 22% impairment of the whole person.
Treating psychiatrist Dr Mahmood Malik provided a letter dated 23 June 24. He advised that Mr Lang fulfils the criteria for severe major depressive disorder and post-traumatic stress disorder. He noted that there was no pre-existing impairment and that his injury was related to employment.
Treating psychologist Dr Matthew Taylor provided a report dated 25 June 24. He advised that Mr Lang was suffering from chronic PTSD. He advised that Mr Lang's prognosis was guarded.
Complete record of Argyle Medical Centre printed on 04 December 23 was provided…
According to documentation from St John of God hospital dated 10 May 23, Mr Lang was accepted for a 10-week anger for PTSD program and a six-day residential program for PTSD. Mr Lang had been admitted on 25 August 23 and discharged on
15 September 23 with a diagnosis of PTSD.Another discharge letter stated that he had been admitted on 03 March 23 and discharged on 15 March 23 with the principal diagnosis of PTSD. It was noted that he had been admitted because of a deterioration in mood with suicidal ideation, along with increased anxiety with panic attacks.
Psychiatrist Dr Yu-Tang Shen provided a letter dated 13 July 22. He advised that
Mr Lang had been assaulted four times since the end of 2018 at work and that there had been about 5 to 7 years when an inmate had threatened to throw boiling water on his face. This inmate had assaulted another officer who died a few weeks later. Dr Yu-Tang Shen did not note any history of mental illness and diagnosed Mr Lang with post-traumatic stress disorder and major depressive disorder. He also noted the possibility of underlying ADHD. He advised a prescription of desvenlafaxine.Dr Yu-Tang Shen has provided several letters since of which his most recent is dated 18 January 23. It does not appear that there had been much change in Mr Lang's presentation…
Psychiatrist Dr Ian Sherman dated 08 April 24. Dr Sherman stated that although Mr Lang did not have a psychiatric history, he had some non-work-related factors, such as experiencing his house burning down at the age of nine and later the amputation of his father's leg. He also noted pre-existing stress in his marriage. He estimated that there was a pre-existing subclinical PTSD and major depression but had which had been aggravated by work-related factors. He noted a tendency to exaggerate his symptoms as well. Nevertheless, Dr Sherman diagnosed Mr Lang with post-traumatic stress disorder and major depressive disorder, which had caused 17% impairment of the whole person. He did note that Mr Lang could work up to 20 hours in a suitable workplace. He noted that Mr Lang had travelled to the Northern Territory with a friend and did not require any special provision. Dr Sherman noted that he showered daily.”
The appellant’s submissions
These are as follows:
Self-Care and Personal Hygiene:
(a) The Medical Assessor said: “He washes his face and hands after getting up, but his hygiene has ‘slipped’. He does not shower daily and gets reminded by his wife. He can wear the same clothes for four days. He does not shave regularly but does clean his teeth daily. He eats regularly but does not cook much.”
(b) Notwithstanding such facts, the Medical Assessor later concludes that: “As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. He does not shower regularly but brushes his teeth everyday. He eats regularly and has managed to lose weight, which he had put on with medication. He had described regular showering to psychiatrist Dr Sherwin [sic].”
(c) The Medical Assessor’s conclusions and opinions on such matters are inconsistent both with the Medical Assessor’s own history obtained during examination and also inconsistent with the facts objectively verifiable in numerous other documents.
(d) For example: Dr Matthew Taylor report dated 25 June 2024: “Mr Lang’s capacity for self-care has been negatively impacted by his condition. His partner may need to prompt him in relation to wearing clean clothes, showering, and shaving. Prior to being impacted by the injury Mr Lang undertook the majority of cooking activities in the household, but his partner now undertakes all cooking responsibilities.”
(e) In his statement dated 5 July 2024 Mr Lang said: “I have to be reminded by family members to take care of myself, otherwise I will miss meals, not wear clean clothes for days at a time, skip showering and shaving, and forget other self-care and hygiene. I used to do most of the cooking in my household, but I do not do any cooking anymore. I rely upon others, predominantly my wife, to do the cooking for me. If she cannot cook for me, I will skip meals or resort to quick unhealthy alternatives.”
(f) The history obtained by the Medical Assessor’s own inquiries during examination identified that the appellant’s hygiene has “slipped.”
(g) That history is consistent with the history and facts provided by the appellant’s treating doctors (and independent examiner).
(h) The Medical Assessor’s concluding opinion, therefore, that “there is a minor deficit attributable to the normal variation in the general population” is a conclusion for which there is no information or material to support the finding made, and which must therefore be found to be a demonstrable error.
Travel:
(a) The Medical Assessor seeks to rely upon the ‘factual’ information and opinion contained in the report of Dr Sherman, stating: “Dr Sherman, noted that Mr Lang had travelled to the Northern Territory with a friend and did not require any special provision.”
(b) There is no evidence to suggest that the Medical Assessor put this information to the appellant in the course of the medical examination, and instead accepted the history of Dr Sherman.
(c) Had the Medical Assessor put such questions to the appellant, the Medical Assessor may have discovered facts in stark contrast to the inaccurate factual information taken by Dr Sherman. Such line of questioning was warranted given the importance of matters to the PIRS scale, but also given that the appellant specifically stipulated in his statement that Dr Sherman’s report was factually inaccurate.
(d) Such findings of fact are inconsistent with a plethora of evidence, for example: the report of Dr Malik dated 23 June 2024: “He finds it uncomfortable to leave own residence without a companion. Attending my room can also become a challenge and it is completed under duress. He also suffers from poor focus and is unable to problem solve which can lead to him feeling dispirited and hopeless.” The report of Dr Matthew Taylor dated 25 June 2024: “Mr Lang’s capacity to travel has been negatively impacted by the injury. His avoidance of public places leads to avoidance of travel, he suffers symptoms of severe anxiety. It was necessary for him to cancel an intended trip to Darwin, which he was taking with his partner, due to anxiety symptoms. He is able to drive himself for about 40 minutes to known locations in order to attend health related appointments.” Report of A/Prof Michael Robertson dated 11 December 2023: “He can go on short, focused outings such as to medical appointments or other necessary ventures outside of the home but he prefers to isolate seeking to avoid interactions with co-workers in Goulburn or stimuli where his symptoms would be triggered.” In his statement Mr Lang said: “I cannot leave my home without a family member or friend, and I do not travel anywhere unless I am absolutely required to go. For example, my wife had planned a trip to Darwin in April 2023, but I cancelled it because I felt too anxious to go. My wife and I travelled to Perth to see her parents, and I hated the entire experience. I did not leave their house when we were there and felt very uncomfortable and anxious with traveling and being around people. Being away from home caused my symptoms to be severely heightened. I had nowhere to retreat to in order to try and relieve my symptoms, and this was difficult for me. I feel very uncomfortable going to my doctor’s appointments, but I manage to go to them on my own. I very rarely go to small businesses in Goulburn and, when I do, my symptoms are aggravated. I feel anxious, worried and unsafe when I leave my home. I do not feel safe in public areas and fear for my family and my own safety.”
(e) The history obtained by the Medical Assessor’s own inquiries during examination were deficient and insufficient. The Medical Assessor instead relied upon the (inaccurate) facts taken by Dr Sherman, without such matters being put to the appellant in the course of examination.
(f) The Medical Assessor’s opinion, therefore, that “He can travel without any psychological impediment” is a conclusion for which there is no information or material to support the finding made, and such conclusion must therefore be found to be a demonstrable error.
Social Functioning:
(a) The Medical Assessor concluded that “He remains close to his wider family and has not fallen out with any of his friends”. However, the Medical Assessor also noted that: “He is unable to enjoy his children’s company for more than an hour”.
(b) A finding that he is unable to enjoy his children’s company for more than an hour is inconsistent and contrary to an assertion that he remains close to his wider family.
(c) Dr Malik noted: “His relations are strained, and he experiences episodic irritability with the inability to have any loving feelings. He also struggles to form and sustain long term relationships.”
(d) Dr Taylor noted: “Mr Lang experiences severe anxiety and hyper-vigilance in the context of social functioning. He has lost contact with others and is not able to remake contact with them. The relationship with his partner is under significant strain. He is socially withdrawn. He can become irritable with others.”
(e) A/Prof Robertson noted: “He has lost numerous friendships in the course of these difficulties.”
(f) In his statement Mr Lang said: “I try to see family members but because I get agitated easily, I have short interactions with them. There are only a few people I maintain contact with, I have lost contact with many friends, colleagues and family members. When attending a family event is required, I will reluctantly go and will resort to the use of alcohol and Valium to cope. I have one remaining good friend that I see on occasion, and he has to vigorously encourage me to do activities with him that involve leaving the house, such as fishing. I am reluctant to do so, although on some occasions I agree.”
(g) Considering the above, the conclusion by the Medical Assessor that the appellant has not fallen out with any of his friends is factually incorrect.
Concentration, persistence and pace:
(a) The Medical Assessor classified the appellant as class 3, being: “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”.
(b) The evidence, however, is that the appellant has significant difficulties with memory, concentration and following instructions. Indeed, the MA states at page 3 of the MAC: “Mr Lang says that he does not function properly. He says he has become forgetful ‘to the point of being pathetic’. He forgets his scrips and has been on a Webster pack. He forgets to take his wallet and phone when he goes to appointments. He has stopped looking after the family’s finances. He says he cannot focus on TV for over thirty minutes. He used to be an avid reader but has had to reread chapters and has stopped reading. He attends his appointments on time ‘mostly’ by keeping reminders on his phone… He flicks through news headlines on his phone”.
(c) The Medical Assessor added: “As described in the main body of the report, there is moderate impairment. He has had to start taking medications with the help of a Webster pack because of forgetfulness and describes reduced concentration in everyday life, which prevents him from reading as well.”
(d) The appellant reiterates that cl 11.12 of the Guidelines make clear that “the examples of activities are examples only”. The task then becomes one of best fit.
(e) The appellant aptly meets the criteria under Class 4, being: “Severe impairment: Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief concentration. Unable to live alone, or needs regular assistance from relatives or community services.”
Employability:
(a) The Medical Assessor said: “There is severe impairment. He cannot return to work for corrective services or any other job that involves security work. He cannot work for more than 10 to 15 hours per week and that too in a less stressful environment.”
(b) The Medical Assessor has outlined matters of significance throughout the MAC which are inconsistent with the conclusion reached. Specifically, the Medical Assessor states: “[H]is mood is low ‘most of the time.’ He says that he feels anxious all the time and suffers panic attacks occasionally… He avoids crowded situations to prevent panic attacks. He says he is very ‘easily startled’ and describes being hypervigilant when out… He says that his sleep is impaired. He does not have initial insomnia but wakes up with nightmares. He wakes up several times during the night. He feels tired during the day. He has become angry and had a road rage incident eighteen months ago after someone failed to give him way in his local town. He says that he tailgated the person for thirty minutes in anger. He feels embarrassed about it now but says that he still feels irritable... He says that he has had suicidal thoughts but has never attempted it.”
(c) The Medical Assessor also notes severe restriction in relation to concentration, focus, and memory.
(d) Dr Malik (treating psychiatrist) provides a succinct summary of the appellant’s condition: “He presented with mixed anxiety and depressive symptoms namely flash backs, nightmares, exaggerated startle response and low mood. He was constantly on edge and angry. He also reported anergia and forgetfulness. He found social contact cumbersome and was avoidant and isolative. He was reliving the traumas on exposure to the reminders. In addition, he experienced many melancholic symptoms like appetite loss, anhedonia, early morning awakening and poverty of speech. He started to pull his hair as a way to distract himself from the relentless flash backs and also binged on alcohol periodically to anesthetise his PTSD symptoms. He also reported frequent suicidal thoughts and was unable to function and his relationship was put to the test. This was mostly because he was on edge and unable to have any loving feelings. His symptoms are severe, persistent and have worsened over time, accompanied by frequent suicidal thoughts. While the exact duration of his symptoms is unclear, they are chronic.”
(e) Those remarks from Dr Malik confirm that the appellant suffers flash backs, nightmares, exaggerated startle response and low mood. He identifies anger within the appellant, as well as “poverty of speech”.
(f) The Medical Assessor’s recital of factual information, whilst less precise, are consistent with those comments of Dr Malik.
(g) Where the two opinions diverge, however, relates to the appellant’s employability in a practical sense.
(h) Consistent with his earlier summation of the appellant’s severe restrictions,
Dr Malik opines: “He has no capacity for remunerative employment. It is unlikely that he will ever return to his usual occupation and this impairment also includes returning to an alternative employer. Furthermore, I do not envisage him returning to work within in his education, training or experience either part or full time. The incapacity is permanent and long-term. He is perturbed by the fact that he cannot work and this is because he is diligent by nature and not working is not an option. He feels guilty and does blames himself for his predicament. He always was a person on whom other relied on but now he has become someone who can barely maintain self-care. He has unfortunately become a shell of himself.”(i) There is no information or material to support the finding made as to employability for 10 to 15 hours per week.
The respondent’s submissions
As stated earlier, the respondent submits that no errors were made, and that the MAC of Medical Assessor Gupta and assessment of impairment was appropriately made.
We will address the submissions with respect to the five PIRS categories appealed in due course.
Discussion
Dealing firstly with the category of Self-Care and Personal Hygiene, we agree with the appellant’s submissions.
In assessing a Class 1, the Medical Assessor said:
“As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. He does not shower regularly but brushes his teeth everyday. He eats regularly and has managed to lose weight, which he had put on with medication. He had described regular showering to psychiatrist Dr Sherwin [sic].”
This is inconsistent with the Medical Assessor’s own observations in the body of the MAC where he said:
“He washes his face and hands after getting up, but his hygiene has ‘slipped.’ He does not shower daily and gets remined by his wife. He can wear the same clothes for four days. He does not shave regularly but does clean his teeth daily. He eats regularly but does not cook much. He has put on ‘a fair bit of weight’ on a particular medication and has lost it since he was taken off that.”
The task of a Medical Assessor as set out in cl 11.12 of the Guidelines makes it clear that the best fit approach must be adopted, noting that “the examples of activities are examples only,” and having regard to various factors set out in that Clause.
The history obtained by the Medical Assessor’s own inquiries during examination identified that the appellant’s hygiene has “slipped.”
That history is consistent with the history and facts provided by the appellant’s treating doctors (and independent examiner).
Although not bound by the opinions of other doctors, they do form part of the evidence which we are obliged to consider.
In our view, the Medical Assessor incorrectly assessed this category as 1 and a Class 2 rating is the correct assessment in this case for reasons that follow.
The Medical Assessor took a history that the claimant forgets his scripts and was now on Webster pack to help him remember his medications. The Medical Assessor also noted the GP entry 20 April 2023, noted the claimant was unable to handle his medication and the Webster pack was recommended. This impairment is not a minor deficit, attributable to the normal variation in the general population, as the Medical Assessor deemed. Therefore, the Panel finds error in the Medical Assessor’s rating.
Class 2 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 respondent submitted that: “the MA acknowledged that the appellant reported regular showering to the insurer’s IME Dr Sherman, and the appellant had also reported that he showers independently to his own IME A/Prof. Robertson.”
We note that Dr Sherman assessed a Class 3 and said: “Moderate impairment: Although he showers daily, he said he may wear the same clothes for several days. At interview he appeared adequately groomed.”
The descriptor for a Class 3 suggests a moderate impairment where “a family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
Although the appellant’s condition as described by the Medical Assessor may fit some aspects of a Class 3 rating, such as needing prompting to shower daily and wear clean clothes, overall the evidence demonstrates he is able to adequately care for himself without prompting, and he has employed strategies such as the use of Webster Packs to enable this.
Turning next to the category of Travel, the Medical Assessor assessed a Class 1 and said: “As described in the main body of the report, there is no impairment. He can travel without any psychological impediment.”
Again, although not bound by the opinions of other doctors, they do form part of the evidence which we are obliged to consider.
The Medical Assessor said:
“He can go to the shops if needed, but not in Goulburn, as there are ‘too many prison officers and ex-inmates.’ He has had panic attacks in crowded places. He says that he can drive for forty-five to fifty minutes. He says that he could travel to new places if needed.”
The Medical Assessor seems to have been persuaded by the opinion of Dr Sherman who noted that Mr Lang” had travelled to the Northern Territory with a friend and did not require any special provision.”
As the appellant pointed out, “There is no evidence to suggest that the MA put this information to the appellant in the course of the medical examination, and instead accepted the history of Dr Sherman.”
Dr Malik noted that: “He finds it uncomfortable to leave own residence without a companion. Attending my room can also become a challenge and it is completed under duress…”
Dr Matthew Taylor said: “Mr Lang’s capacity to travel has been negatively impacted by the injury. His avoidance of public places leads to avoidance of travel, he suffers symptoms of severe anxiety. It was necessary for him to cancel an intended trip to Darwin, which he was taking with his partner, due to anxiety symptoms. He is able to drive himself for about 40 minutes to known locations in order to attend health related appointments.”
A/Prof Michael Robertson noted: “He can go on short, focused outings such as to medical appointments or other necessary ventures outside of the home but he prefers to isolate seeking to avoid interactions with co-workers in Goulburn or stimuli where his symptoms would be triggered.”
In his statement Mr Lang said:
“I cannot leave my home without a family member or friend, and I do not travel anywhere unless I am absolutely required to go. For example, my wife had planned a trip to Darwin in April 2023, but I cancelled it because I felt too anxious to go. My wife and I travelled to Perth to see her parents, and I hated the entire experience. I did not leave their house when we were there and felt very uncomfortable and anxious with traveling and being around people. Being away from home caused my symptoms to be severely heightened. I had nowhere to retreat to in order to try and relieve my symptoms, and this was difficult for me. I feel very uncomfortable going to my doctor’s appointments, but I manage to go to them on my own. I very rarely go to small businesses in Goulburn and, when I do, my symptoms are aggravated. I feel anxious, worried and unsafe when I leave my home. I do not feel safe in public areas and fear for my family and my own safety.”
There are inconsistencies in some of these accounts.
Dr Sherman noted that Mr Lang “had travelled to the Northern Territory with a friend and did not require any special provision.”
The appellant spoke of cancelling a planned trip to Darwin in April 2023 with his wife. He did not state that he had been to Darwin with a friend.
It may simply be a matter of some confusion by some doctors: it is impossible to say.
He apparently also travelled to Perth with his wife but just when that took place is unclear. Nevertheless, he added that “I did not leave their house when we were there and felt very uncomfortable and anxious with traveling and being around people. Being away from home caused my symptoms to be to be severely heightened.”
The descriptor for a Class 2 rating reads: “Mild impairment; can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
For a Class 3 it reads: “Moderate impairment: cannot travel away from own residence without a support person. Problems may be due to excessive anxiety or cognitive impairment.”
Once again, there are some aspects of Mr Lang’s condition which fit part of the descriptor for a Class 3 rating, however, we note that he is able to travel to attend medical appointments alone as noted by Dr Taylor.
Conversely, Mr Lang said: “I cannot leave my home without a family member or friend.”
A/Prof Michael Robertson also noted: “He is able to drive himself for about 40 minutes to known locations in order to attend health related appointments.”
He can also “go to the shops if needed, but not in Goulburn.”
It cannot be said that the appellant’s avoidant behaviour and travel impairment related to Goulburn, is a minor deficit attributable to the normal variation in the general population.
Overall, having regard to the whole of the evidence, we agree that a Class 2 rating is appropriate, and the Medical Assessor was in error.
Turning next to the category of Social Functioning, we note that the appellant’s own IME A/Prof Robertson assessed at a Class 2 for social functioning.
The descriptor for a Class 2 rating reads: “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
For a Class 3 it reads: “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
There is nothing in the evidence to suggest that Mr Lang’s relationship with his wife and children is “severely strained.” Indeed, he said that gets along well with his family, albeit doesn’t wish to spend more than an hour with his children. That is not an uncommon situation.
Although he said that “there has been some strain in his marital relationship” he added that “it is sort of okay.”
There is no evidence of domestic violence and although Mr Lang’s children are adults now, there is no evidence to suggest that the children are avoiding him.
For these reasons, we agree that a Class 2 rating is appropriate.
Turning next to the category of Concentration, persistence and pace, the Medical Assessor assessed a Class 3 rating and said:
“As described in the main body of the report, there is moderate impairment. He has had to start taking medications with the help of a Webster pack because of forgetfulness and describes reduced concentration in everyday life, which prevents him from reading as well.”
The descriptor for a Class 3 rating 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.”
For a Class 4 it reads:
“Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or need regular assistance from relatives or community services.”
The appellant submits that he has “significant difficulties with memory, concentration and following instructions.”
He noted that the Medical Assessor said:
“Mr Lang says that he does not function properly. He says he has become forgetful ‘to the point of being pathetic’. He forgets his scrips and has been on a Webster pack. He forgets to take his wallet and phone when he goes to appointments. He has stopped looking after the family’s finances. He says he cannot focus on TV for over thirty minutes. He used to be an avid reader but has had to reread chapters and has stopped reading. He attends his appointments on time ‘mostly’ by keeping reminders on his phone… He flicks through news headlines on his phone.”
There is no doubt that Mr Lang has significant difficulties in this category.
Having said that, again, there is no evidence that Mr Lang meets the criteria set out in the Class 4 rating.
He works full-time as a truck driver which of itself requires a degree of concentration.
There is no evidence that any “Concentration deficits” are obvious even during a brief conversation.
Although the Medical Assessor did not specifically refer to any findings on examination, there is nothing to suggest that Mr Lang was so severely impaired during the assessment that was much longer than a “brief conversation”, an impairment that almost certainly would have been recorded as a significant finding in a mental state examination.
As the respondent points out:
“A/Prof. Robertson and Dr Sherman assessed a a Class 3 for Concentration persistence and pace.”
As expressed by Member Carolyn Rimmer in Wright v Ngroo EducationIncorporated [2022] NSWPICMP 106:
“Concentration, persistence and pace is a category where the assessor can apply clinical judgment and considerable weight must be given to the assessor’s observations in the clinical examination. The assessor, during the clinical examination, is able to observe the worker’s ability to concentrate, assess persistence with the cognitive demands of the assessment, and observe the pace at which the worker can engage.”
The Medical Assessor’s assessment of a Class 3 impairment was consistent with the overall evidence.
For these reasons, we see no error by the Medical Assessor in his assessment in this category.
Turning finally to the category of Employability, the Medical Assessor assessed a Class 4 rating and said:
“As described in the main body of the report, there is severe impairment. He cannot return to work for corrective services or any other job that involves security work. He cannot work for more than 10 to 15 hours per week and that too in a less stressful environment.”
Table 11.5 of the Guidelines provide that an assessment for Class 5 is appropriate when: “Totally impaired: Cannot work at all”.
Clearly a Class 5 rating is not appropriate in this case. Mr Lang is working as a truck driver. In addition, as the Medical Assessor noted: “Mr Lang owns his family farm, which his children manage. He goes there for a wander but is not involved in any activities.”
The Medical Assessor is required to assess a claimant’s capacity for work, regardless of whether that work is voluntary.
We certainly agree with the Medical Assessor that Mr Lang is indeed impaired, but we do not accept that the totality of the evidence supports a Class 5 rating.
For instance he is training his dog, and although struggling with the course, could thus be a dog walker.
Mr Lang seems to harbour considerable anger about various aspects of his job. Whilst this is perhaps understandable, his ruminating on the way he was treated may well have prevented him from seeking other employment.
For these reasons, we see no error in the Medical Assessor’s assessment in this category.
The appellant also submits that the Medical Assessor has failed to consider the effect of treatment in his assessment of impairment, having regard to Clause 11.8 of the Guidelines.
The appellant said:
“His circumstance, having required substantial treatment both inpatient and outpatient as well as regular ongoing medical consultation, is one which warrants additional impairment to be assessed for the effect of treatment.”
The appellant’s submission is misconceived.
Sub-section 1.32 of the Guidelines provides:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
A similar issue was recently dealt with by the Supreme Court in Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 (Zoric) where Chen J said:
“The clause may thus be understood to involve, and require findings about, the following ‘steps’:
1.First, whether there has been effective long-term treatment of an illness or injury.
2. Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3. Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
Upon satisfaction of each step, the medical assessor may increase the percentage of WPI by 1%, 2% or 3%. no submissions were directed to the proper construction of it – in particular, the meaning to be given to the term ‘may’ (broadly, whether it is discretionary or mandatory).
In relation to the first step, therefore, there needs to be a finding about the “illness or injury” that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [52] as follows:
Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause…
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
The appellant has not demonstrated that there has been ‘effective long-term treatment’ that has resulted in ‘the apparent substantial or total elimination’ of his impairment.
There was no history recorded by the Medical Assessor of any substantial or total elimination of the appellant’s impairment.
The Medical Assessor also recorded that:
“Mr Lang is currently on Rosuvastatin 10mg, Desvenlafaxine 250mg, Valproate 1000mg, Clonidine 100mcg, Prazosin 2mg, Thiamine100mg and Pramipexole1.5mg. He sees his psychiatrist, Dr Malik, fortnightly and his psychologist, Mr Matthew Taylor.”
This reflects a substantive condition.
In our view, it cannot be said that the appellant has satisfied the first two steps identified in Zoric.
In terms of the third step, as Chen J said: “the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
Having determined that the appellant has not satisfied the first two steps, it follows that the third step is not engaged.
This then means that the aggregate score is as follows: 2, 3, 2, 2, 3, 4, ascending order 222 334, median 3, aggregate score 16, the final WPI is 17%.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 September 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: | W23788/24 |
Applicant: | Robert Lang |
Respondent: | Secretary, Department of Communities and Justice |
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 Ankur Gupta 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) |
| 1.Psychological | 2 June 2022 | Chapter 11 | Chapter 11 | 17% | Nil | 17% |
| 2. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
4
0