Lara v Toll Group Ltd
[2023] NSWPICMP 696
•21 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lara v Toll Group Ltd [2023] NSWPICMP 696 |
| APPELLANT: | George William Lara |
| RESPONDENT: | Toll Group Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 21 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in finding that the appellant had not reached maximum medical improvement (MMI); the Panel agreed; re-examination confirmed MMI and a whole person impairment assessment was made; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 August 2023 George William Lara (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Clayton Smith, a Medical Assessor who issued a Medical Assessment Certificate (MAC) on 3 August 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 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 the worker should undergo a further medical examination because we determined that the Medical Assessor erred with respect to his conclusion that the appellant had not reached maximum medical improvement (MMI) having regard to the whole of the evidence.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a report of Dr Bisht dated 23 August 2023.
The appellant submits that the evidence is relevant to the issue in dispute, namely whether or not he has reached MMI. The appellant submits that the evidence was not available and could not reasonably have been obtained because, when Mr Lara was referred to the Medical Assessor for assessment of whole person impairment (WPI), it was not expected that this would not be done.
The respondent objects to the admission of the report because Dr Bisht provides his opinion as to why he disagrees with the assessment of Dr Smith which is not a proper basis for the admission of so-called “fresh evidence.” Reference is made to a number of relevant decisions on this issue particularly that of Justice Hoeben in Petrovic v BC ServNo 14Pty Limited and Ors [2007] NSWSC 1156 where he considered what constitutes “additional relevant information” for the purposes of s 327(3)(b) of the 1998 Act: “…‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment.”
An appeal under s 327 is not an opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than a panel being invited to decide an application afresh.
The purpose of the referral to a Medical Assessor is to bring finality to medical disputes, other than where there are legitimate grounds of appeal. It is expected that the parties will place all relevant documents before a Medical Assessor in the referral documents.
The report of Dr Bisht does not provide any probative value. The information contained within the report of Dr Bisht was available for the AMS to derive from the material provided ahead of the assessment.
We agree with the respondent’s submissions regarding the proper application of s 327.
Having said that, as the respondent points out, the purpose of the referral to a Medical Assessor is to bring finality to medical disputes.
In this case, the appellant’s treatment regime has remained fairly constant for over three years now.
When asked: “If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?” the Medical Assessor replied “in six to 12 months after assertive and consistent psychiatric treatment (our emphasis).
In other words, the Medical Assessor’s opinion was predicated on the appellant undergoing what the Medical Assessor considered was a different treatment regime.
In these circumstances, a treating psychiatrist is best placed to address this issue.
We also note that the Medical Assessor did not specify what he considered to be “assertive and consistent psychiatric treatment” which is of concern to us when the appellant has had adverse reactions to some treatment and has specifically and repeatedly stated that he does not wish to change that regime.
This is an unusual case in that if the appellant had only been receiving treatment for say 12 to 18 months, we may have considered that MMI had not been reached.
Dr Bisht did indicate in his earlier report in March 2022 that the appellant had reached MMI. It was almost 18 months later that the Medical Assessor concluded to the contrary.
Thus the subsequent report is entirely relevant to the issue in dispute,
For the reasons stated, the Appeal Panel determines that the following evidence should be received on the appeal:
· report of Dr Bisht dated 23 August 2023.
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.
Further medical examination
Medical Assessor Graham Blom of the Appeal Panel conducted an examination of the worker on 15 December 2023 and reported to the Appeal Panel.
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 concluding that the appellant had not reached MMI, contrary to the weight of evidence.
In reply, the respondent submits that it was open to the Medical Assessor to make the findings he did, and 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 WPI in respect of a primary psychological injury on 22 October 2020.
The Medical Assessor set out the history he obtained as follows:
“He last worked on 22 October 2020 when he had a functional neurological disorder/functional stroke.
He noted organisational changes after Toll was acquired by Japan Post. He noted his role became intolerable from 2017, making more than 60 people redundant and interacting with unhappy customers, suppliers, union representatives, management, subcontractors and employees. He said he struggled with workload, clashing priorities, coping, sleeping, and concentrating. He had confided in a senior manager that he was burnt out. A well-respected finance colleague suffered a stroke during this time. Six months later, another finance colleague, 40 years of age, suffered a stroke at her desk and died. Their deaths shook him. His GP had started him on an antidepressant about a month before he left work. He was given a referral to a psychiatrist but did not act on it at that point.
On 22 October 2020, he developed stroke-like symptoms, and after extensive neurological investigation, it was determined that he had suffered a stress-related disorder. It was diagnosed as a functional stroke. He was referred to the stroke rehabilitation unit as he continued to have physical symptoms on the left side of his body. He attended for three months but could not cope with the weekly visits. He commenced treatment with Dr Yajuvendra Bisht, a psychiatrist, in November 2020. He saw Dr Bisht two weekly initially and then every four weeks.
He saw a psychologist for a year throughout 2021, once a month. At the end of 2021, no further appointments were arranged with his psychologist. Mr Lara said he felt he was doubling up seeing a psychologist and psychiatrist. He said his psychiatrist provides talk therapy every four weeks.
Dr Bisht has tried several antidepressants, switching from escitalopram to paroxetine, agomelatine and most recently, venlafaxine.”
Present treatment was noted as follows:
“Mr Lara takes venlafaxine 75mg daily. He has never been on a higher dose. Depending on how he feels, he takes brexpiprazole (an augmenting agent) 0.5 to 1mg some days. He takes agomelatine 25mg as required if he is unable to sleep. He said there are no treatment changes proposed.
He takes irbesartan for high blood pressure.
He sees a psychiatrist every 4 weeks.”
Present symptoms were noted as follows:
“Mr Lara said medication has helped him to remain stable. His mood is often depressed. He said he feels he cannot " survive " without medication and develops withdrawal symptoms if he misses medication doses. He said he should have improved more by now but needs to feel useful again. He said he feels he has lost his identity. He feels ashamed to be off work, having always been a high achiever.
He denied active suicidal thoughts. He sometimes has passive suicidal thoughts and feels like a burden on his family. He feels useless and has trouble envisioning a way out of his current predicament.
He lacks enthusiasm, drive and motivation. He is usually tired.
He has free-floating generalised anxiety, procrastinates and has difficulty making decisions.
His sleep is broken. He has work-related distressing dreams. He avoids anything related to his former employment, such as paperwork.”
When asked to provide details of any previous or subsequent accidents, injuries or conditions, the Medical Assessor said:
“Pre-injury, he said he was resilient, a high achiever and goal-directed, accustomed to multitasking and managing multiple projects and priorities. He said he was an expert in mergers, acquisitions and restructures and sat on company boards. He tried to keep fit, exercise regularly, dress well, and speak to large audiences. He said he was sociable and used to enjoy going out with colleagues and friends and enjoyed being the life of the party and looking after people. He told me he enjoyed building people's careers. He said he loved his family life, and he and his wife went out frequently. He said his children did multiple sports, including tennis, fencing and horse riding. He said they always led an active social life. He said they attended Rugby and football and regularly drove their children to events.
He denied a history of developmental trauma. His father was an alcoholic, and he said his parents had some physical fights, but he generally felt safe at home. He denied exposure to trauma, meeting criterion A for post-traumatic stress disorder. He said he was a high achiever, even as a young person. He said there had been no bereavement since the injury. His mother died 10 years ago. His father has Parkinson's disease and is in a nursing home…
There have been no subsequent psychiatric injuries or conditions.”
The Medical Assessor then turned to consider the impact of Mr Lara’s injury on his social activities and activities of daily living (ADL’s) and said:
“He is up and out of bed between 9.30 and 10 a.m. He takes his medication in the morning. He will have coffee and toast, get dressed and do whatever needs to be done for his livestock. He runs 11 Dorper sheep on the property. He lets his chickens and ducks out and feeds the dogs. On a good day, he tries to do yard work, like cutting timber for the wood burner and maintenance around the property. He said by early afternoon, he feels exhausted and often takes a nap. He does not watch television because he cannot concentrate. He feeds the animals again in the afternoon and may run errands, such as going to the chemist or doctor's appointments. His wife does most of the mowing in summer. No mowing is required in winter. He and his wife share responsibility for collecting stock feed and supplies. He can shop locally at Bunnings, Woolworths, or Coles. There is no risk of him running into work people locally.
He said he and his wife always had a traditional division of labour where she was mostly responsible for household tasks. He said he helps out more often at home because he is around and might do the dishes and vacuum occasionally. His wife works most days for three to four hours daily. He used to enjoy reading and enjoy technical books but cannot concentrate. He no longer has any share investments. He cannot absorb information. He told me he had not read a book since the functional stroke. He used to enjoy music and was learning to play the drums, but he has not touched the drums since the injury. He said he has no drive or motivation, or enthusiasm.
He showers every three to four days, saying his wife must push him. He brushes his teeth daily. He said he is likely to shave every week. He shaves his head every couple of weeks to once a month. He sees a dental hygienist every six months. If he goes out, he will wear clean clothes, although he finds that many of his clothes do not fit anymore. He has gained weight.
He has difficulty pushing himself to socialise. He told me he lives like a hermit because he feels safest at home. For example, he said his wife wanted to take his son and his girlfriend to a café in Mascot for his son's birthday in April. Mr Lara did not want to go because he was worried about running into work colleagues because of a large Toll depot in Mascot. He has no desire to talk to people. He said people leave messages on his phone, and his wife tells him he has ghosted them. Eighteen months ago, he turned down an invitation to a wedding party for one of his wife's friends. He will go out with his wife to grab a coffee approximately once a month. He said he and his wife would occasionally visit the local RSL or pizza restaurant. He is not a member of any clubs or associations.
He said his libido is low, and his sex life is non-existent, creating strain in his relationship. He said they had not been intimate for three years. There is no threatened separation, and he has a good relationship with his children.
He sees his daughter regularly, once a fortnight, when she comes to the house. He has seen his son in the Navy twice in the last six months. His eldest son lives in Mascot, and they might see each other every three to six months when he comes home for Christmas or Mother's Day. He saw his brother last week. His father lives locally in a nursing home and visits his father once a fortnight. He has run into his brother while visiting. His parents-in-law live in a separate granny flat on the property. His in-laws are 90 and 86, and his wife looks after them. He speaks to them briefly once a week, if that. He migrated in 1974 at the age of 10. His wife is also from Uruguay. He is not in contact with family overseas.
He has a lifelong friend he has known since primary school that his wife pushes him to see. They might catch up at his friend's house every three to six months.
He does not use social media messaging groups to keep in touch with people. He ignores emails from LinkedIn.
He drives locally alone. He can drive alone 7 hours to his investment property in Uralla. He has been alone to Uralla twice in the last two years. He said he used to actively manage a share fund, but when he was injured, he could not concentrate on share trading or make decisions, so he put his money into the property. He has owned it for nearly three years. He said he has not let the house out yet, has not derived an income, and is trying to renovate the property slowly. He said he has avoided renting the house out because he does not want to deal with people. He does basic renovation himself, including painting and cosmetic repairs. He has also paid tradespeople to do work. He has been to Uralla once to paint the bathroom and clean and patch up old windows. He said he would have visited Uralla four times last year. He usually goes with his wife. They might go to the local pub in Uralla and have a meal. He denied overseas travel. He drove to Melbourne alone last year for a Formula One racing event for several days, said he was alone throughout the trip, and picked a quiet area of the circuit.
He thinks about returning to work and has no idea what he will do. He said it took him a long time to accept he could not return to Toll and the career that he used to have. He said he fought against it initially because he took pride in being competent and capable and valued his business relationships. He said he was embarrassed because of what he had become.
He is not working with a rehabilitation consultant. He attends a house painting course at Wollongong TAFE three to four days per month. He said most of it is practical work. He said the only theory is workplace-oriented safety lectures at this point. He started the course this year and has attended each month for four months. He said he has been assessed as competent so far. He said if he wants a painter's licence, he can attend the course for three years or exit the course with basic skills after a year. He said he is unsure if he will complete three years but finds the course helpful to get him out and doing something.”
Findings on examination were reported as follows:
“Mr Lara presented on time by teleconference. He was interviewed from home… He was tidy and well-presented. He was pleasant and cooperative. His face flushed, and he briefly appeared ashamed as he contrasted his former self with his current self. His affect was reactive. His speech was of normal rate, tone and volume. He described his mood as flat, with no enthusiasm, motivation or interest.
He reported depressive themes, including shame and loss of identity, role, purpose and meaning. He described grief at losing a job he had enjoyed for many years and his sense of competence. He described sensitivity to reminders of the workplace and feeling embarrassed about the circumstances of the injury. He denied active suicidal thoughts. He described passive suicidal thoughts. There was no evidence of psychotic symptoms.
He was alert and oriented, and his intelligence was estimated to be in the high range. There were no overt cognitive deficits during the interview. He was able to pay attention, and his narrative was logical. His insight and judgment were intact. He claimed to adhere to treatment as prescribed, although he was inconsistent with taking brexpiprazole.”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“Mr Lara is a 58-year-old former financial controller for Toll Holdings who developed a major depressive disorder and functional neurological disorder due to an overwhelming workload. In lay terms, he was burnt out by the circumstances of his employment.
The functional neurological disorder has resolved. He has a DSM-V persistent depressive disorder. He reported a flat anhedonic mood with loss of pleasure in previously enjoyed activities for most of the day for more days than not for at least two years. He described insomnia, impaired motivation, low self-esteem, impaired concentration and depressive thoughts. He has never been without the symptoms described above for more than two months at a time. There is functional impairment compared with his pre-injury function.
His condition has improved but plateaued as he contemplates his future without the identity, meaning and purpose provided by his former employment. He has trialled several antidepressant medications under the supervision of a psychiatrist. However, I note that the current dosing is not assertive, and he is not progressing through accepted treatment algorithms to manage treatment-resistant depressive disorders. He takes brexpiprazole (an augmenting agent) inconsistently. He had a year of psychotherapy in 2021. He is currently receiving supportive treatment once a month with his psychiatrist. No treatment changes are proposed at this point. He is at a loss regarding how he would re-enter the workforce and in what role or capacity. He is not under any significant financial pressure.”
The Medical Assessor added:
“Mr Lara presented as a consistent historian, although some discrepancies were noted, particularly his report on current self-care and personal hygiene, which appeared at odds with his general function in other domains, and appearance on examination. His presentation was otherwise consistent with the medical evidence provided by his treating clinicians. His presentation was consistent with the mechanism of the injury and the mental state examination.”
When asked: “Have all body parts/systems stabilised/reached maximum medical improvement?” the Medical Assessor replied “No” adding:
“He has trialled several antidepressant medications under the supervision of a psychiatrist. However, I note that the current dosing is not assertive, and he is not progressing through accepted treatment algorithms to manage treatment-resistant depressive disorders despite his condition plateauing. He takes brexpiprazole (an augmenting agent) inconsistently, which may cause symptom instability. He does not have psychotherapy other than supportive treatment once a month.”
The Medical Assessor then turned to consider the other evidence before him and said:
“In his report dated 14 June 2022, Dr Jonathan Philips, Consultant Psychiatrist, detailed the circumstances of the injury. He diagnosed persistent depressive disorder and functional neurological symptom disorder. He noted it may be possible, as a result of treatment, that the claimant could return to some form of gainful white-collar employment, but not at his previous levels. He recommended expert occupational therapist assessment. He disagreed with Dr Bisht's conclusions that Mr Lara's condition had stabilised and reached maximum medical improvement. He noted a possibility that Mr Lara would achieve some reduction in symptoms with treatment. He noted that full recovery was out of the question. He rated whole person impairment at 24%.
In his report dated 19 September 2022, Dr Robert Kaplan, Independent Medical Examiner and Consultant Psychiatrist detailed the circumstances of the injury. No significant inconsistencies were identified. Dr Kaplan diagnosed persistent depressive disorder and somatic symptom disorder and recommended he attend a mood disorder unit at the Black Dog Institute and see a neuropsychiatrist regarding the diagnosis of functional neurological disorder. He did not believe that Mr Lara had reached maximum medical improvement. He did not assess whole person impairment.”
As regards the evidence of Dr Bisht, the Medical Assessor said:
“No inconsistencies were noted in correspondence from Dr Yajuvendra Bisht on various dates. He noted a prescription for escitalopram, then paroxetine, then agomelatine. He was noted to be able to travel to unfamiliar and familiar places on
23 February 2021. He was noted to be distant and irritable with his family in February 2021. He was noted to have difficulty concentrating for long periods and with short-term memory in February of 2021. He was noted to be able to attend to his self-care without prompting, not attending social gatherings as often, and making excuses for his non-attendance. Agomelatine was reduced to 12.5mg due to elevated liver function tests. He was commenced on venlafaxine 37.5mg in July of 2021. He was advised to continue agomelatine as required for sleep. He was noted to have presented with symptoms of major depression and anxiety. He considered maximum medical improvement had been reached.”The Medical Assessor did not identify which particular “correspondence” he had before him.
In his report dated 26 August 2023 which we have admitted, Dr Bisht said, in answer to a number of questions:
“1. Assuming that you still hold the view (contained in your report dated
13 March 2022) that George is MMI please provide:(a) The reasons why you hold that view (as opposed to him not being MMI) and why you say that nearly 3 years after his accident that a further 6 to 12 months of assertive and consistent psychiatric treatment constitutes an application of incorrect criteria and/ or constitutes a demonstrable error in accordance with s.327 (3) (c) & (d) of the Act.
I do still hold the view (contained in my report dated 13 March 2022) that George has reached MMI.
The reasons I hold that view are as follows.
• Treatment-resistant major depression (TRD) typically refers to inadequate response to at least 2 antidepressant trials of adequate doses and duration. Thus Mr Lara would meet the definition of treatment resistant depression, , as he is on his 3'' antidepressant now.
• Major depression is only considered persistent after a period of 2 years. Thus Mr Lara meets the definition of persistent major depression.
• Although other treatments may be available, firstly Mr Lara is not keen to trial any other treatments as he has had side effects with the previous treatments. He is also unable ot increase the dose of the current antidepressant, due to the side effect concerns.
• Our monthly sessions not only focus on supportive therapy, but also cognitive behaviour therapy as well in addition to the supportive therapy. He has therefore had more than than the requisite 12 sessions to be considered to have reached maximal benefit from these sessions. He has had more than 12 sessions with a psychologist as well in the past, and stopped seeing him in December 2021 as he perceived that he had achieved maximal benefit from those sessions.
• In section 8b of the MAC report, Dr Srnith states that Mr Lara 'has trialled several antidepressant medications under the supervision of a psychiatrist. However, I note that the current dosing is not assertive, and he is not progressing through accepted treatment algorithms to manage treatment-resistant depressive disorders despite his condition plateauing. He takes brexpiprazole (an augmenting agent) inconsistently, which may cause symptom instability. He does not have psychotherapy other than supportive treatment once a month.'
• Treatment-resistant major depression (TRD) typically refers to inadequate response to at least 2 antidepressant trials of adequate doses and duration. Thus Mr Lara would meet the definition of treatment resistant depression, as he is on his 3'' antidepressant now.
• Although other treatments may be available, firstly Mr Lara is not keen to trial any other treatments as he has had side effects with the previous treatments. He is also unable ot increase the dose of the current antidepressant, due to the side effect concerns.
• Mr Lara does take the brexiprazole consistently. He takes an extra dose on occasions, to manage exacerbations, under my guidance.
• Our monthly sessions not only focus on supportive therapy, but also cognitive behaviour therapy as well in addition to the supportive therapy. Mr Lara has therefore had more than than the requisite 12 sessions to be considered to have reached maximal benefit from these sessions. He has had more than sessions with a psychologist as well in the past, and stopped seeing him in December 2021 as he perceived that he had achieved maximal benefit from those sessions.”
The submissions
The appellant submits that the Medical Assessor erred in the following respects:
(a) failed to acknowledge the length of time that the appellant has received psychiatric treatment;
(b) failed to adequately acknowledge the varied and failed (non-responsive) regime of anti-depressant medication prescribed to the appellant;
(c) failed to give weight to the treatment regime provided by Dr Bisht and determine that the appellant is MMI;
(d) failed to provide a WPI assessment;
(e) it is common ground that the appellant sustained significant psychiatric injury in the accident which occurred nearly 3 years ago and that he has been (and remains) under the care of Dr Bisht for psychiatric treatment since November 2020;
(f) the appellant attends upon Dr Bisht on a monthly basis for psychiatric counselling and cognitive behaviour therapy;
(g) in addition, Dr Bisht has both prescribed and overseen a regime of anti-depressant medication, and
(h) given the length of treatment provided and medication prescribed it is asserted that the appellant meets both the definition of treatment resistant depression and persistent major depression.
The respondent’s submissions are to some extent set out under the heading “Fresh Evidence” above.
The respondent added:
(a) contrary to the appellant’s submissions, Dr Smith considered the treatment that the appellant has had, and, on his own assessment (as he is entitled to do), has concluded that the treatment received to date is inadequate and accordingly, maximum medical improvement has not been achieved;
(b) Dr Smith does not dispute that the appellant has not been prescribed with correct medication, he assesses that the dose of medication is not assertive, and therefore, the appellant is not progressing through accepted treatment algorithms to manage the treatment-resistant depressive disorder;
(c) Dr Smith considered that following a regime of assertive treatment, the appellant’s condition could stabilise within 6 to 12 months, and
(d) Dr Smith has adequately acknowledged the length of time and the frequency of the psychiatric treatment received by the appellant but has concluded that this treatment has not been adequate and accordingly, the appellant’s condition has not yet stabilised for the purposes of a whole person impairment assessment.
Discussion
Medical Assessor Blom of the Panel reported to us as follows:
“1. The workers medical history, where it differs from previous records.
At the beginning of the interview, I asked Mr Lara whether he had read the Medical Assessment Certificate of Dr Clayton Smith undertaken on 19 July 2023. He said that he had read the document and that he agreed with the history presented. I then enquired specifically about the history of treatment for his injury, as this was the grounds of the appeal. Mr Lara was unfortunately, very vague about the specifics of his treatment process, however, with the assistance of the documentation provided I was able to clarify to a significant extent the medical and psychological treatment that he had received.
Mr Lara initially approached his general practitioner sometime in the beginning of 2020 because of deteriorating symptoms of anxiety and depression. At that time, his general practitioner had initiated an antidepressant medication although Mr Lara was unsure of its name. From the documentation I believe that he was initiated on paroxetine at a dose of 20 mg/day (i.e. one tablet/day). Mr Lara was however clear that he received no significant benefit from this medication.
Following his injury in October 2020 he was referred to Dr Bisht as his treating psychiatrist. Dr Bisht ceased the paroxetine and initiated, I believe, agomelatine increasing the dose to 25 mg/day. Mr Lara remained on this for several months but unfortunately developed abnormal liver function tests, a known side effect of agomelatine. He ceased the agomelatine and introduced melatonin for sleep. He remained on this for some time but eventually stopped it due to side-effects. It appears that he also introduced escitalopram, certainly this is mentioned in the documentation, and Mr Lara was clear that he had taken it. However, he developed side-effects to escitalopram which he found intolerable, and it was ceased. He also was trialled subsequently on the dual acting antidepressant, duloxetine, but again developed intolerable side effects and it was ceased. Eventually he was initiated on another dual acting antidepressant venlafaxine, and this was increased. I believe to a final dose of 150 mg/day. However, again, Mr Lara experienced side effects and reduced the dose to 75 mg/day. He is unwilling to increase the dose further.
Subsequently, Dr Bisht introduced another antidepressant, brexipiprazole, at a low dose of .5 mg/day. Mr Lara has subsequently used the brexipiprazole in a somewhat unusual fashion in that he although takes it consistently, he varies the dose between .5 mg/day in 1 mg/day depending on the severity of his depressive and anxiety symptoms. Dr Bisht has also reintroduced the agomelatine, although now at a lower dose of 12.5 mg/day. Mr Lara uses this in on an as required basis and says that in fact he only takes the agomelatine reasonably infrequently.
Mr Lara was very clear at this examination that he does not wish to change his antidepressant medication. He said that he believes that it has helped him somewhat, in that his overall depressive symptoms have improved since 2021, although unquestionably he has never reached remission. However, he was very troubled by side-effects from the various trials of anti-depressants that he has had and did not believe that further trials would be of benefit to him because he said he feared that it would in fact upset his current equilibrium which he has learned to tolerate to some degree. On questioning, he also made it clear that, in general, he had always been something of a reluctant medication taker. This seemed to be a somewhat strong and ingrained view, and possibly accounts in part for the difficulties he has experienced with the various medications he has taken.
From a psycho-therapeutic point of view, Mr Lara also believe that he has had more than sufficient treatment and that the ongoing psychological monthly treatment currently provided by Dr Bisht is sufficient. He said that he consulted a psychologist,
Mr Andrew Schmidt, early in 2021 initially consulting him approximately once every two weeks. This frequency of consultation continued for about three months and then was reduced to the rate of one consultation/month, for a further eight or nine months. At the same time that he was consulting Mr Schmidt, he was also consulting Dr Bisht on a very frequent basis. Following his referral to Dr Bisht he consulted him at least a fortnightly and on occasions weekly for the first 6 to 12 months of his attendance.From his description, confirmed by the documentation, the treatment offered by both
Dr Bisht and Mr Schmidt was evidence-based, cognitive-behaviour oriented therapy. Eventually Mr Lara ceased his contact with Mr Schmidt because both he and
Mr Schmidt agreed that he was unlikely to gain significant further benefit from their contact, and in any case, Dr Bisht was providing similar therapy and Mr Lara increasingly felt that there was unnecessary overlap in his psychological treatment.
Mr Lara has continued to consult Dr Bisht for the last two years, mostly at a monthly rate - sessions generally last for about 1hour and continue to be based around cognitive behaviour therapy. Mr Lara is satisfied with his psychological treatment by
Dr Bisht, as well as his medical treatment and does not wish to undertake further treatment with other psychologists, and in fact believes it would not be helpful and possibly detrimental.2. Additional history since the original Medical Assessment Certificate was performed.
There have been no significant changes in Mr Lara’s psychological condition since the previous Medical Assessment Certificate was undertaken. His descriptions of his symptoms generally were similar to those provided by Dr Clayton Smith, although I do note that it would appear that his sleep has improved compared with when Dr Clayton Smith assessed him. This may be because he also appears to be less anxious overall than he was when reviewed by Dr Clayton Smith. Mr Lara was unclear about this, but I suspect it may reflect a reduction in stress because of the impending end of the workers compensation process.
There have been no changes in his medical or psychological treatment since the date of the last MAC.
There have been no significant changes in Mr Lara’s living circumstances, and no significant disruption in his life.
3.Current Treatment.
As mentioned above, Mr Lara is treatment has not changed since the time of the MAC. He continues to consult Dr Bisht on a monthly basis. Dr Bisht continues to provide CBT related psychotherapy during his sessions. His current medications are:
venlafaxine – 75 mg/day; brexipiprazole – .5 – 1 mg/day (dose is varied according to severity of symptoms); agomelatine – 12.5 mg/night, used on an as required basis.
Mr Lara also consults his general practitioner on a reasonably regular basis, approximately every three months for review of his continuing hypertension. This is currently managed with the antihypertensive medication irbesartan, at the dose of 150 mg/day.
4.Current Symptoms.
Mr Lara complained of persistent low mood, which he experienced every day. He described this as a feeling of being flat emotionally and lacking any sense of drive or motivation. He complained of being constantly fatigued, which he associated with his difficulty in motivating himself and his overall reduction in energy. He said that he has become much less active than he was, prior to his injury and as a result of this he has gained considerable weight, approximately 30 kg in total. He said that he does not believe that he is eating more, and that his appetite has remained reasonably stable, but that his reduction in activity, had led to the very substantial weight gain.
He also complained of considerable withdrawal and avoidance. He finds it anxiety provoking to leave the house, particularly to socialise, and so avoids it. He is anxious about undertaking tasks, be they mundane household tasks or more intellectual tasks (for example, he manages the household finances) and so tends to procrastinate considerably. He experiences significant anticipatory anxiety.
His sleep has improved and generally he says now that he gets about eight hours solid sleep/night. He has no difficulty going off to sleep and sleeps through the night, generally. Because of his daytime fatigue, however, he tends to nap on most days for about 1 to 1 ½ hours each afternoon.
He denied feeling hopeless, but described feeling useless and somewhat purposeless and has a very limited sense of the possibility of change in his future.
5.Findings on clinical examination
Mr Lara was seen via the Teams platform. Initially Mr Lara had some considerable difficulty accessing his camera, because as it became apparent he needed to download an update of the application. This clearly caused him considerable anxiety, nevertheless, he navigated the process without great difficulty. He was alone throughout the interview. The quality of the transmission was good, once the interview started. There were no further difficulties with streaming or the application.
Mr Lara presented as a very overweight man, with an unshaven somewhat dishevelled beard. He was balding. He had a quite flushed face, which on enquiry was caused by Rosaceae. He was neatly dressed. Initially he was quite anxious, although as the interview progressed, he became much more comfortable and less obviously tense and distractible. He was quite over-inclusive in his style throughout the interview.
His affect was reactive, with no evidence of flattening or restriction. He did not appear overtly depressed. He denied feeling suicidal and did not evince a sense of hopelessness, although there was clearly a feeling persistently present of his feelings of purposelessness and a sense of being lost.
There was no evidence of psychotic phenomena, in particular, he did not display any evidence of delusions, hallucinations or formal thought disorder.
He was somewhat discursive in his style, overinclusive and often struggled with memory related to the course of his illness. This appeared consistent with his diagnosis and did not suggest any form of neurological or other organic disorder. There was no evidence at this interview, of any form of loss of motor function as described in the documentation relating to his previous ‘functional CVA’.
Overall, he presented as an honest witness who was attempting to engage with the interview to the best of his ability.
6.Diagnosis.
Using the criteria of DSM 5, I believe that Mr Lara currently meets the diagnostic criteria for Persistent Depressive Disorder, with anxious distress.
Mr Lara describes persistently low mood, that has lasted for at least two years. He has low energy and fatigue, impaired concentration and struggles with poor self-esteem. Whilst he does not experience hopelessness, there is considerable feelings of purposelessness and of uselessness. Currently he does not experience sufficient symptoms to meet the criteria for a Major Depressive Disorder, although he most likely did earlier in his illness.
7.Review of Documentation.
The MAC of Dr Clayton-Smith dated 3 August 2023. Dr Clayton Smith makes a diagnosis of Persistent Depressive disorder with which I agree. However, he does not believe that Mr Lara has reached maximum medical improvement. His reason for this is stated in section 8 of the MAC where he states ‘… The current dosing is not assertive, and he is not progressing through accepted treatment algorithms to manage treatment resistant depressive disorders, despite his condition plateauing.’ He further states that ‘He does not have psychotherapy other than supportive treatment once a month.’.
Dr Clayton Smith appears to believe that Mr Lara has not reached maximum medical improvement because he has failed to progress through accepted treatment algorithms.He however does not address the issue necessary to determine maximum medical improvement, that is the likelihood of significant improvement within the next 12 months (Guidelines – paragraph 1.15). I believe that were he to continue with treatment according to evidence-based treatment algorithms, it would nevertheless be unlikely that he would obtain significant improvement in his level of impairment. Mr Lara’s level of impairment has been consistent and persistent now for several years and is associated with significant chronicity. In this situation the chance of substantial improvement is markedly reduced.
From my review of Mr Lara, there are also some inaccuracies in Dr Clayton Smith’s history in that Mr Lara maintains quite strongly that he uses brexipiprazole regularly. I believe, he has had, from both my review of the documentation and Mr Lara’s description, appropriate cognitive behavioural based therapy in the past and whilst his current therapy is infrequent, it is reinforcing the previous more intensive therapy.
Furthermore, Mr Lara is very clear that he does not want to engage in changes in medication or more intensive psychotherapy.
The report of Dr Jonathan Phillips dated 14 June 2022. Dr Phillips also makes a diagnosis of Persistent Depressive disorder as well as a functional neurological symptoms disorder - in remission. I agree with the diagnosis. Dr Phillips also believes that Mr Lara has not reached maximum medical improvement, suggesting that he should have 25 to 30 sessions of cognitive behaviour therapy, over a period of about 18 months. He does not suggest changes to medications. He however is pessimistic, it would appear as to the outcome of this treatment, stating that ‘… He will probably show some, but incomplete, symptom reduction.’ Again he does not address the pertinent issue in the determination of maximum medical improvement – that is substantial improvement in Impairment. For the reasons that I have stated above, I do not believe that there is a high likelihood of substantial improvement in impairment and Dr Phillips certainly does not make the case that this is likely.
The report of Dr Kaplan dated 16 September 2022. Dr Kaplan also makes a diagnosis of Persistent Depressive Disorder and Somatic Symptom disorder. He does not mention that the latter diagnosis is in remission. He also suggests that Mr Lara has not reached maximum medical improvement, suggesting that he should undergo treatment at a mood disorder unit in Sydney. Again, he does not address the issue of the likelihood of substantial improvement in level of impairment. In any case Mr Lara was quite definite in my review with him that he was unwilling to undertake further intensive psychological therapy as he feels that he has gained as much as he is likely to. He also was unwilling to travel long distances for treatment and realistically I do not believe that this would be helpful.
8.Review of the issue of maximum medical improvement.
Mr Lara has had trials of multiple antidepressants from different classes. It is true that he has generally only had moderate doses of these antidepressants, however this is related to his repetitive experience of side-effects, which he found intolerable. He feels that he has gained as much as he is likely to, from his current regime of medication, and whether this is true or not, he is unwilling to change it both because of his belief that it will not assist as well as a not completely unfounded fear that changes in his medication may in fact lead to a deterioration in his condition either through the impact of side-effects or loss of the benefits that he has currently gained.
Furthermore, he is unwilling to undertake further intensive psychotherapy.
As well as his unwillingness to change treatment, given the chronicity of his condition and the level of treatment that he has received to date, I believe that there is very little likelihood that his level of impairment will significantly improve as is required, according to the guidelines. For these reasons, I believe that Dr Clayton Smith has erred in his determination that Mr Lara has not reached maximum medical improvement. I believe that he has. I have therefore also undertaken an assessment of Whole Person Impairment.
9.Assessment of Whole Person Impairment.
Mr Lara currently lives on his own property, in a small village in the Southern Highland. His property comprises approximately 5 acres on which he has sheep and chickens, which are pets. He lives with his wife. He tends to manage the maintenance of the property and care for the animals, while his wife takes responsibility for household duties. He has a daughter who lives nearby and with whom he remains in close contact and two sons, both of whom live in Sydney.
Self Care and Personal Hygiene.
Mr Lara manages his own hygiene although only tends to shower every three or four days. He says that he finds it difficult to motivate himself to shower more frequently and doesn’t feel that he needs it because of his inactivity. His appetite is good, and he eats a reasonably well, although his wife does most of the cooking. This is unchanged from the situation prior to his injury. If necessary, he is able to prepare simple meals. As mentioned, he does any required maintenance work outside of the house, and occasionally assists with some household duties. This is mild impairment – Class 2
Social and Recreational Activities.
He describes himself as something of a hermit and tends to avoid socialising, he however does go out occasionally with his wife and/or daughter for coffee or lunch. He and his wife also go to the club for dinner, once a week, at the insistence of his wife, who becomes frustrated with his withdrawal. He has a lifelong friend who visits every couple of months, or whose place he visits. He does this somewhat begrudgingly and finds it increasingly difficult. He travelled to the F1 car races earlier this year in Victoria. He went alone and spent his time watching the races in an isolated spot away from other people. Despite his attempt to remained isolated, however, there were sufficient people around to cause him anxiety and he left early. This constitutes moderate impairment – Class 3
Travel.
He drove to Victoria by himself at the beginning of the year. He and his wife owned, up until recently an investment property in the north-western region of New South Wales and Mr Lara drove there on a couple of occasions when required. This lies within the range of normal – Class 1
Social Functioning.
He remains very close to all of his children and sees his daughter frequently. He keeps in close phone contact with his sons. There is some strain and tension with his wife because of his anxiety, withdrawal and irritability. He also commented that he has completely lost his libido, and this has put further strain on his relationship with his wife. He has lost contact with many of his friends and finds the current relationship with his longest standing friend increasingly difficult. This constitutes a mild impairment – Class 2
Concentration, Persistence and Pace.
He complained bitterly of difficulties with concentration and focus as well as problems with memory. He said that he no longer can read technical books that he used to enjoy. He also previously enjoyed playing drums, but has stopped now partly due to motivation but also because he finds it impossible to read music. He is able to watch U-tube channels, usually on topics such as history, but is highly distractible and his concentration and focus tends to be fluctuating. He manages the family finances, which are reasonably simple and straightforward, but nevertheless procrastinates considerably before undertaking this task and it takes much longer than it previously did. During this interview, he tended to be quite circumstantial at times and clearly struggled with memory of the events that have occurred since his injury, particularly related to medication and other treatment. This constitutes moderate impairment – Class 3.
Employability.
He is withdrawn, avoidant and anxious at the thought of engaging in any new activity. He has difficulty with his motivation and drive and tends to procrastinate a great deal. His concentration, memory and capacity for persistence are all impaired. He has not worked at all since leaving work due to his injury and given his current symptoms and global level of impairment, I do not believe that he is capable of working at all currently, or within the foreseeable future. This constitutes total impairment – Class 5.
The median class is 3 (after rounding) and the aggregate score is 16.
This equates to a Whole Person Impairment of 17%.
There is no deduction for pre-existing injury and no addition for treatment effect.”
The Panel agrees with the findings and assessments made by Medical Assessor Blom.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 August 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: | W1989/23 |
Applicant: | George William Lara |
Respondent: | Toll Group |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Clayton Smith and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | 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 | 22 October 2020 | 11, page 55- 60 | 14 | 17% | 0 | 17% |
| 2. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
2
0