Langley v Trustees of the Roman Catholic Church for the Diocese of Wollongong
[2023] NSWPICMP 454
•13 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Langley v Trustees of the Roman Catholic Church for the Diocese of Wollongong [2023] NSWPICMP 454 |
| APPELLANT: | Benitta Langley |
| RESPONDENT: | Trustees of the Roman Catholic Church for the Diocese of Wollongong |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 13 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from 19% whole person impairment assessment in psychological injury case; whether Medical Assessor (MA) had erred in respect of the degree of impairment in self-care and personal hygiene, concentration persistence and pace, and employability; whether assessment made regarding transitory place of assessment; whether MA comments taken out of context; whether caring for ill mother equated to an ability to earn; MA noted that appellant temporarily in New Zealand caring for her terminally ill mother; his assessment regarding self-care related to appellant's usual circumstances in Australia; assessment confirmed; grounds selective regarding concentration persistence and pace; read as a whole assessment no more than a difference of opinion; appellant was caring for ill mother with the assistance of her sister and domiciliary assistance; facts not consistent with capacity to earn; combination of history since 2015 injury and diagnosis demonstrated error; Held – Medical Assessment Certificate revoked and 22% substituted. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 March 2023 Benitta Langley, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
21 February 2023.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). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 6 October 2022 this matter was referred to the Medical Assessor for an assessment of WPI caused by a psychological injury that occurred on a deemed date of 18 June 2015.
The MAC produced by the Medical Assessment was most comprehensive, and he recounted in considerable detail the complex history of the onset and circumstances of Ms Langley’s disorder. The assessment was conducted by video when Ms Langley was in New Zealand on 30 January 2023.
There had been an earlier attempt to schedule the assessment on 14 November 2022, about which the Medical Assessor said that Ms Langley “presented in a very agitated and distressed state.” The assessment was discontinued on that account, but not before the Medical Assessor was told that a beverage Ms Langley had been sipping was port wine. He noted when the assessment was rescheduled on 30 January 2023 that Ms Langley was then in Waiuku, New Zealand, as her mother had only passed away some three days prior.
The Medical Assessor gave his condolences and asked under the circumstances whether Ms Langley was agreeable to continuing the assessment, and the consultation proceeded. He noted in his MAC that Ms Langley had travelled to New Zealand in November 2022, but it was unclear whether the first assessment attempt occurred when she had been in New Zealand, or was still in Australia, on 14 November 2022. We assume that she was already in Waiuku on that occasion.
The Medical Assessor recorded in some detail the circumstances of the subject injury. Ms Langley was a care support person who had suffered her injury when she had been bullied at work. We note that the Medical Assessor spend some time considering the facts of the injury, but would observe that such consideration was not required, as the injury had been admitted, and it could not have been referred to him for assessment otherwise.
The Medical Assessor recounted in some detail Ms Langley’s history subsequent to her ceasing work in 2015. To summarise that detail, she has not worked since, and has suffered bouts of homelessness before she finally obtained social housing in Warrawong in 2022. She has been a regular user of illicit substances and alcohol, and has been through at least one relationship break up involving domestic violence. She has at times been in the company of sex workers and criminals.
The Medical Assessor assessed 19% WPI.
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.
The appellant did not seek to be re-examined by a Medical Assessor who was a member of the Appeal Panel. The issues for determination were clearly defined in the evidence, and no re-examination was necessary in order to determine the 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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Ms Langley appealed against the assessment with regard to the following categories in the Psychiatric Impairment Rating Scale:
· Self care and personal hygiene
· Concentration persistence and pace
· Employability
THE MAC
In describing Ms Langley’s symptoms, the Medical Assessor noted:[1]
“Ms Langley reported variable enjoyment of food, as well as fluctuating food intake. She noted her height had increased since travelling to New Zealand, and added, “I've been eating a lot of rubbish”.
…..
Ms Langley reported impaired concentration and a degree of rumination: “My head never seems to stop... I have a million things running around in there”. When asked to describe short-term memory, Ms Langley replied, “It's pretty bad actually... I’ll start saying something” and then forget was what she was going to say, or she will walk into a room and forget what she was going to do. When asked about long-term memory she replied,“A lot of that is etched in my brain because you know traumatic things and happy things” were still recalled.”[1] Appeal page 28
As to Ms Langley’s current level of function, the Medical Assessor said:[2]
“Ms Langley stated she changes her clothes “every couple of days, I guess”. She estimated she might eat two meals per day. When asked to describe recent meals, on the night prior to the IME she ate nachos that had been made by her sister for lunch. Another recent meal she recalled was fish and chips that someone had brought to the house. She explained that some of these meals were not typical of what she would eat, because her mother had recently died. She stated she attended to dental hygiene “a couple of times a week”. When asked about bathing or showering she replied, “I can go for weeks without doing that, once a week, once every 10 days maybe”. She washes her hair on the days she bathes or showers. She stated, “My sister makes me take a shower”.
Ms Langley stated she does not undertake any household chores, including cooking, cleaning, or laundry, in her mother’s home. She stated she had gone out shopping with her sister twice in the past two months, and explained that she drove the car to the shops,…
Ms Langley stated she was able to provide some care and support for her mother whilst her mother was ill. She shared responsibilities with her sister, and explained that twice a day, domiciliary assistance was provided to her mother. When asked to describe tasks that she undertook in relation to her mother’s care, she stated that she would sometimes assist her mother transfer from a bed to a commode, and would sometimes feed her mother, as her mother was bedridden and unable to feed herself. She stated she might also wash her mother's face, as her mother was unable to wash herself.Ms Langley advised that she was able to access the internet, and can send and receive emails. She advised she had a Facebook account explaining she accessed it, “Sometimes it can be once a day, sometimes it can be months”. She stated she disliked seeing photos or posts by family or friends on social media. She advised she managed her own finances and became upset when asked this question, but when it was explained to her that independent medical examinations were focused on day-to-day functioning, she answered these questions, stating she was able to do so….
Ms Langley reported some impairment in concentration but stated at times she tried to distract herself with music, to manage her emotional symptoms. To stated (sic) she listened to music but when asked to elaborate on what she listened to she replied “I don't know just anything”. She stated she watched TV shows with her sister stating these lasted up to 30 minutes and that she was “most of the time” able to follow these.”
[2] Appeal page 30
The Medical Assessor described, at [5] of the MAC, Ms Langley’s presentation as being a woman of stated age wearing dark-rimmed reading glasses. She had grey hair which was slightly unkempt, with some pink streaks through it. She wore a right sided nose ring and was casually dressed. Her affect was restricted in range. The Medical Assessor said:
“….[Ms Langley’s] thought form was notable for some circumstantial material, that is, when asked a question, she would add extra information to her response, and sometimes adding extra information to this, at times being able to return to the original question, and at other times not spontaneously doing so. There was no poverty of ideation, and Ms Langley’s responses were frequently notable for extra information.”
On examination the Medical Assessor found Ms Langley to be alert and orientated.
In his summary at [7] of the MAC, the Medical Assessor noted that Ms Langley has not worked since 2015, that she reported ongoing psychiatric symptoms and had been engaged with general and mental health service providers between 2016 and 2021. He noted a significant number of social stressors since Ms Langley ceased working, including a relationship characterised by domestic violence, extended homelessness and being the victim of crime on a number of occasions. He also noted significant substance and alcohol related disorders that had likely contributed to her overall psychiatric morbidity and functional limitations. A diagnosis of major depressive disorder, alcohol use disorder and stimulant use disorder (in early remission) was made.
At [10c] the Medical Assessor is invited in a templated question to make brief comments regarding other medical opinions and findings, and to explain why his opinion differed, if applicable. The Medical Assessor considered three reports from the medicolegal specialist retained by the respondent, Dr Graham Vickery. He also noted the medicolegal opinion by Dr Ben Teoh. Beyond noting that both Dr Teoh and Dr Vickery assessed a median class Value of 3, he made no comment on the individual assessments made regarding the six categories of the PIRS.
SUBMISSIONS
Appellant
Ms Langley’s submissions were prepared by Mr Bruce McManamey of Counsel. As indicated, Ms Langley alleged that the Medical Assessor had fallen into error in his assessment of three of the categories of the Psychiatric Impairment Rating Scale (PIRS). These were:
(a) Self care and personal hygiene;
(b) Employability, and
(c) Concentration, persistence and pace.
Self-care and personal hygiene
Ms Langley submitted that the assessment of a class 2 impairment given in this category was erroneous. Ms Langley referred to the facts found by the Medical Assessor as to her periods of homelessness, her time in public housing and that when in New Zealand she was prompted to shower by her sister.
Ms Langley also referred to the facts acknowledged by the Medical Assessor that she might have two meals a day and that the recent meals she had eaten were either made by her sister or someone else who brought food to the house.
Ms Langley submitted that she had fluctuating food intake and that “she eats a lot of rubbish”.
Ms Langley then referred the report of Dr Graham Vickery of 10 September 2020, noting that he had found her to have a class 3, moderate, impairment in this category. This level of self-care had been caused by her periods of homelessness, but it was argued since she had found permanent accommodation, the Medical Assessor accepted that the situation had not changed.
Ms Langley submitted that as the Medical Assessor appeared to accept her statements about self-care and personal hygiene, he ought to have found either a moderate 3 or severe class 4 impairment.
The Medical Assessor’s finding of a mild impairment therefore was inconsistent with the facts.
We were referred to the descriptor for class 2 and it was submitted that Ms Langley could not live independently, needed prompting from her sister to attend to simple tasks such as brushing her teeth, showering and changing her clothes.
Concentration persistent and pace
Ms Langley submitted that the Medical Assessor had failed to have sufficient regard to her level of functioning prior to her injury. It was submitted that the Medical Assessor had noted that Ms Langley would often clean clients’ bathrooms and kitchens when they should have been cleaned by other workers. She referred to the statement of Ms McPhee as saying that prior to her injury, Ms Langley was a lovely and happy person. That level of involvement, it was submitted, was a stark contrast to Ms Langley’s present level of function.
Ms Langley again referred to the Medical Assessor’s own observations in that it was difficult to steer her back to the original question during the assessment. This, it was argued, demonstrated Ms Langley’s subjective impairment in concentration.
The restrictions noted by the Medical Assessor regarding Ms Langley’s inability to organise her booking for her flight to New Zealand or see a doctor in New Zealand indicated, it was argued, a more severe level of impairment. The Medical Assessor also acknowledged that Ms Langley needed to see a GP to support and explain her absence from Australia. Before her injury, it was contended, Ms Langley would have been “more than capable” of performing these tasks.
Ms Langley also referred to the alcohol disorder that the Medical Assessor had diagnosed and her statements in that regard. Ms Langley submitted that this disorder would compromise her ability to concentrate and function at a reasonable level. She conceded that the Medical Assessor had noted that evidence, but it was alleged that he did not “consider the implications.”
Ms Langley referred again to the evidence regarding her sleep impairment and ruminating thoughts. The cumulative effect of these matters, we understood her to argue, would have justified a class 4 rating, rather than the class 3, moderate, assessment made by the Medical Assessor.
The Medical Assessor’s own observations that it was difficult to steer her back to the original question during the assessment, demonstrated Ms Langley’s severe impairment in concentration, it was argued.
Employability
In this category Ms Langley submitted that the finding of a class 4 impairment by the Medical Assessor constituted error.
Ms Langley noted that the Medical Assessor referred to the fact that she had not worked for seven years. He noted that Ms Langley had been providing her mother with some care and assistance but that this care was limited in both scope and hours.
The Medical Assessor, it was alleged, failed to acknowledge that Ms Langley only provided that assistance sometimes, and that she shared responsibility for it with her sister. Moreover, the evidence showed that professional domiciliary assistance was provided twice a day to
Ms Langley’s mother.The care given by Ms Langley of sitting bedside with her terminally ill mother should not,
Ms Langley submitted, be interpreted as demonstrating some residual ability to find employment.It was submitted that indeed the Medical Assessor did not refer to the possibility of employment. He simply noted that Ms Langley had been able to help her mother. She submitted that such care was not equivalent to paid employment, which required the appellant to travel to new environments and to treat strangers. There was a contradiction also, it was submitted, in that Ms Langley was in fact working at personal care when she was injured, and the Medical Assessor accepted that she was unable to perform that work.
Ms Langley submitted that there were a number of factors that would directly impact her ability to work:
· She was diagnosed as having a major depressive disorder, stimulant use disorder and alcohol use disorder;
· It was unlikely that Ms Langley would be able to maintain any form of employment when she was drinking six to 10 standard drinks a day, smoking 10 – 15 cigarettes a day and using illicit drugs;
· The Medical Assessor noted that during the assessment she was sipping port wine in the first attempt at an assessment which had to be abandoned, and
· On both occasions the discontinued assessment and the one that followed, the Medical Assessor noted that Ms Langley appeared to be distressed from the outset and mildly agitated.
A consideration of all of the above evidence would show, it was submitted, that these factors would therefore impact on her ability to work.
Ms Langley submitted that the problem with self-care and personal hygiene was also an issue in holding down employment. She was always more than very depressed. She had persistent impairment in her sleep and the Medical Assessor himself noted that it was at times difficult to keep Ms Langley focussed on answering the question.
In this category Ms Langley again referred to the opinion of Dr Vickery, noting that he had found a class 5 for this employment category.
Ms Langley noted that the Medical Assessor did not specifically refer to the assessments of Dr Teoh and Dr Vickery with regard to employment and he accordingly did not explain why his opinion is different in circumstances where he had no identified any real work that Ms Langley could perform.
A class 4 categorisation therefore was not available on the evidence Ms Langley submitted.
The Medical Assessor by failing to recognise the category of employability was directed to the question of paid employment.
Respondent
The respondent argued that the self-care and personal hygiene category was class 2 assessment was open to the Medical Assessor. We were referred to various factual matters that underpinned that submission.
As to concentration, persistence and pace, the respondent again made submissions as to the evidence that the Medical Assessor relied on submitting that his classification was open to him. Reliance on ruminating thoughts and the implications of her alcohol disorder was to invite speculation, it was submitted, and in any event the Medical Assessor diagnosed alcohol abuse as one of her conditions.
Similarly, with regards to the category of employability, the respondent adopted the reasoning of the Medical Assessor that Ms Langley had demonstrated an ability to do paid work by virtue of her activities in caring for her mother.
The respondent submitted that independent experts were routinely asked to reach conclusions about an injured worker’s ability to work based on their degree of function in other areas, and this was an appropriate approach which had been used by the Medical Assessor.
The criticisms made by Ms Langley about her substance use, poor memory, low mood and inability to sleep were made without reference to direct evidence and in any event it was submitted that the Medical Assessor was clearly aware of those matters, as they were recorded in detail in his MAC. The class 4 category was appropriate, it was submitted.
The fact that the Medical Assessor did not refer specifically to the assessments of the medico-legal experts on both sides, was not relevant as there was no obligation on his to do so. What was more, no authority was referred to by Ms Langley to support that assertion.
In any event those reports were somewhat out of time it was submitted, and taken in different circumstances from those that pertained at the time of the assessment.
DISCUSSION
The Psychiatric Impairment Rating Scale (PIRS)
The Psychiatric Impairment Rating Scale is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[3] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[3] Guides 55
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[4].
[4] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[5] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[6]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[5] [2017] NSWSC 887 (Ferguson).
[6] [2015] NSWSC 633 (Jenkins).
In Glenn William Parker v Select Civil Pty Ltd,[7] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[7] [2018] NSWSC 140 (Parker)
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a. if the categorisation was glaringly improbable;
b. if it could be demonstrated that the AMS was unaware of significant factual matters;
c. if a clear misunderstanding could be demonstrated; or
d. if an unsupportable reasoning process could be made out.
Self-care and personal hygiene
With regard to the category of self-care and personal hygiene the Medical Assessor assessed a mild impairment. The degrees of impairment for this category are contained in Table 11.1 of the Guides:
“Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population
Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4 Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5 Totally impaired: Needs assistance with basic functions, such as feeding and toileting."In his PIRS Table, the Medical Assessor said:
“2 Ms Langley reported being able to live independently, alone, prior to travelling to NZ, and was planning to return to her usual residence in the short-term. Ms Langley reported missing meals frequently. Ms Langley reported not attending to activities of daily living on a regular basis, and requiring prompting from her sister.”
We do not, with respect, accept that the mild impairment assessed by the Medical Assessor was made in respect of Ms Langley’s description of her situation when she was staying with her sister during her mother’s illness. The Medical Assessor accepted that in her usual environment Ms Langley was able to live independently by herself. That comment indicates that he was making a distinction between the circumstances in which Ms Langley found herself whilst in Waiuku where she was staying with her sister during the period of her mother’s terminal illness, and her usual situation in her abode at Warrawong. Indeed, the Medical Assessor also appeared to distinguish Ms Langley’s situation in Waiuku from her normal situation in noting that she reported variable enjoyment of food as well as a fluctuating food intake, but that since travelling to New Zealand she had been eating “a lot of rubbish”.
Neither do we accept that the Medical Assessor’s assessment was based on Dr Vickery’s opinion. Dr Vickery’s assessment of a moderate class 3 was dated 10 September 2020, which was given at a time when Ms Langley’s life was in turmoil at the time she was breaking up with her partner, and was homeless. We had some difficulty in following Ms Langley’s argument that the Medical Assessor had accepted that her situation had not changed. It clearly had, as the difficulties a person encounters when being homeless in maintaining his/her self-care and personal hygiene is self-evidently vastly different from a person’s ability to care for him/herself in his/her own abode. Ms Langley did not refer to any evidence that linked the assessment by Dr Vickery with her situation as was assessed by the Medical Assessor.
The assessment was open to the Medical Assessor and is confirmed.
Concentration persistence and pace
The degrees of impairment in this category are contained in Table 11.5 of the Guides:
“Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2 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.
Class 3 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.
Class 4 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 needs regular assistance from relatives or community services.
Class 5 Totally impaired: needs constant supervision and assistance within institutional setting.
The Medical Assessor stated in his PIRS Table:
“3 Ms Langley reported subjective impairment in concentration.
Ms Langley advised that she was not able to organise her flight booking to NZ, and that her daughter completed the booking process.
Ms Langley advised that when she needed to see a GP in NZ, her sister organised this on her behalf.”The matters raised by Ms Langley regarding the concentration, persistence and pace category are matters that reasonable minds may have differed about. They do not, in our view, rise any higher than that. It was not suggested that the Medical Assessor overlooked these facts – indeed none of Ms Langley submissions suggested that the medical assessor had made any error of fact, and our enquiry confirms that to be correct. In this category it can be seen that Ms Langley relied on the very facts that the Medical Assessor recited to justify the moderate impairment rating.
Moreover, it is equally arguable that the moderate rating was in fact too high. It is one thing to allege a heightened impairment in such things as flying to New Zealand or seeing a GP in New Zealand, but entirely another to suggest that the problems encountered under the no doubt distressing circumstances of her mother’s illness are of general application. We did not read the evidence as suggesting that Ms Langley could have explained her absence from Australia prior to her injury without the assistance of a medical practitioner, but rather that she needed the support of a medical report or certificate from a New Zealand practitioner in order to have her Centrelink benefits restored.
Further, the description by the Medical Assessor did not raise the inference argued for that Ms Langley had any more than a moderate class 3 impairment. Whilst the Medical Assessor noted that Ms Langley was somewhat discursive in her conversation, he did not suggest that her concentration was impaired to a severe degree. Indeed, he noted that she was able to elaborate on her answers and whilst she could do so and return to the original question, at other times she would not. There were no concentration deficits obvious during brief (or would seem longer) conversation. She was found by the Medical Assessor to be able to live alone. The general tenor of the behavioural consequences of her disorder were more appropriately those which the Medical Assessor identified as a moderate impairment. His finding that Ms Langley was alert and orientated also mitigated against a more severe impairment.
This assessment is also confirmed.
Employability
Table 11.6 of the Guides provides:
Table 11.6: Psychiatric impairment rating scale – Employability
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.
Class 2 Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3 Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4 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.
Class 5 Totally impaired. Cannot work at all.”
The Medical Assessor found a severe impairment, class 4. He said:
“4 Ms Langley has not worked in any paid capacity for over 7 years.
Whilst in NZ, Ms Langley reported providing her mother with some personal care, such as feeding, bathing and transferring of position, in recent months.This appeared limited in scope and hours.”
It can be seen that the focus of the descriptors is on whether a claimant can perform work in an employment situation in paid work - as was conceded by the respondent.
There are a number of difficulties in accepting the Medical Assessor’s reasoning for finding that Ms Langley could do any work at all. Firstly, the care of Ms Langley’s ailing mother does not equate with a capacity to engage in paid employment, any more than a woman caring for her child could be seen to be able to obtain employment in a childcare facility. In any event, the care that Ms Langley gave to her mother was very limited. Whilst Ms Langley’s work with the respondent was as a care support person, there has been no suggestion that she is able to perform that work, given her psychiatric condition.
Secondly, the Medical Assessor recorded that Ms Langley stayed either with her mother or with her sister during the illness. The Medical Assessor recorded that Ms Langley shared responsibilities with her sister and that twice a day her mother received domiciliary assistance. The duties the Medical Assessor recorded in the PIRS Table he omitted to say were shared with Ms Langley’s sister.
Thirdly, the history of Ms Langley’s life subsequent to her ceasing work in 2015 makes it highly unlikely that she would be able to perform any employment at all. The Medical Assessor, as indicated, took a most detailed history of Ms Langley’s life since 2015 and noted that her history was consistent with his findings on mental state examination. He accepted the history he obtained with the reservation that some detail was lacking such as “a chronology of the reported thefts to which she was subjected, and the number thereof.”
Fourthly, Ms Langley’s diagnosis was a major depressive disorder, alcohol use disorder and stimulant use disorder (in early remission). We note that he also took a history that “[p]rior to travelling to New Zealand Ms Langley reported she was using methamphetamine on a fairly regular basis.” No point was taken as to the appropriateness of the assessment being taken so soon after Ms Langley had lost her mother, but at the time Ms Langley was in a transitory situation and due to return to Australia “in the next week or two.” The “early remission” referred to by the Medical Assessor in those circumstances raised the question that Ms Langley’s stimulant use disorder had been in remission in New Zealand but would resume once she returned. A person suffering the disorders Ms Langley has acquired is most unlikely to be able to find any employment, and the behavioural consequence on her employability is a total impairment.
Accordingly, the assessment for employability is revoked, and a fresh certificate will issue for a class 5 impairment. This will have the effect pursuant to Chapter 11 of the Guides of giving a WPI of 22%.
For these reasons, the Appeal Panel has determined that the MAC issued on
21 February 2023 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: | W4269/22 |
| Applicant: | Benitta Langley |
| Respondent: | Trustees of the Roman Catholic Church for the Diocese of Wollongong |
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 Dr John Lam-Po-Tang 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 AMA5 Guides | % WPI | WPI Deductions pursuant to S323 for pre- existing injury, condition or abnormality (expressed as a fraction) | Sub- total/s % WPI (after any Deductions in column 6) |
| Psychiatric | 18.6.2015 | Chapter 11, page 6, table 11.8 | N/A | 22% | 0 | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Benitta Langley | Claim reference number (if known) | |
| DOB | Age at time of injury | 46 years | |
| Date of Injury | 18.6.2015 | Occupation at time of injury | Care Support Person |
| Date of Assessment | 30.1.2023 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. Major Depressive Disorder | 2.Stimulant Use Disorder | |
| 3. Alcohol Use Disorder | 4. | ||
| Psychiatric treatment | |||
| Is impairment permanent? | No (circle one) | ||
| PIRS Category | Class | Reason for Decision |
| Self Care and personal hygiene | 2 | Ms Langley reported being able to live independently, alone, prior to travelling to NZ, and was planning to return to her usual residence in the short-term. |
| Ms Langley reported missing meals frequently. | ||
| Ms Langley reported not attending to activities of daily living on a regular basis, and requiring prompting from her sister. | ||
| Social and recreational activities | 3 | Ms Langley advised that she did not undertake any regular social or recreational activities either within her residence, or out of her home. |
| Ms Langley explained that she was able to participate in a family Christmas celebration, but found it stressful. | ||
| Travel | 2 | Ms Langley reported being able to drive, alone, to known locations near her apartment in Warrawong. She advised she was able to drive 40 minutes to visit a family member in Campbelltown just prior to her trip to NZ. |
| Ms Langley was able to travel between Sydney and New Zealand alone; she advised she was planning the return flight alone. | ||
| Social functioning | 3 | Ms Langley reported strained relationships with 4 of her 5 children, emerging withing the last 5 years. She described a good relationship with one of her daughters. |
| Ms Langley reports having one good friend in the Illawarra area, who is currently looking after her car, and checking in on her apartment. | ||
| Ms Langley described maintaining relationships with her sisters in NZ, as well as other relatives, though reported finding some interactions with family members stressful. | ||
| Concentration, persistence and pace | 3 | Ms Langley reported subjective impairment in concentration. |
| Ms Langley advised that she was not able to organise her flight booking to NZ, and that her daughter completed the booking process. | ||
| Ms Langley advised that when she needed to see a GP in NZ, her sister organised this on her behalf. | ||
| Employability | 5 | Ms Langley has not worked in any paid capacity for over 7 years. |
| Her disorder has resulted in total impairment |
Score Median Class
Aggregate Score Impairment Total %
0
4
0