Lee v Exponential Recruitment Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Lee v Exponential Recruitment Pty Ltd [2023] NSWPICMP 490
APPELLANT:	Ching Yee Lee
RESPONDENT:	Exponential Recruitment Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	4 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appellant alleged error in the assessment under four categories under the psychiatric impairment rating scale (PIRS) namely, self-care and personal hygiene, social and recreational activities, social functioning, and employability; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 February 2023 Ms Ching Yee Lee (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Hong , a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 January 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could discern no error and absent a finding of error, the Appeal Panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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) reports of Dr Kiran Nair dated 4 January 2023 (x2), and
(b) further supplementary statement of the appellant dated 18 February 2023.
The appellant submits that the evidence is relevant.
The appellant has made detailed submissions about the procedural history of the matter to which the Appeal Panel has had careful regard.
Essentially the appellant commenced proceedings for a claim for lump sum compensation supported by the opinion of the IME qualified on her behalf Dr Oldtree Cark dated 9 August 2021.
In the course of the proceedings, the appellant wanted a supplementary opinion in the course of the proceedings but Dr Oldtree Clark no longer practices. The matter came before Member Garner and a timetable for the filing of this further material was agreed to and so ordered. It had to be filed by a date in October 2022.
The timetable was not complied with due to the limits on the availability of Dr Nair.
An appointment with the Medical Assessor had been arranged for 13 January 2023.
The appellant filed an application to admit the late reports of Dr Nair dated 4 January 2023.
The matter was listed urgently before Member Garner who refused to admit the late report of Dr Nair.
The appointment with the Medical Assessor took place on 13 January 2023 and resulted in the issuing of a MAC dated 24 January 2023 which is the subject of this appeal.
The appellant now seeks to have the late report of Dr Nair admitted and the respondent objects to this.
The Commission operates a front end loaded system. Its case management guidelines and its rules are very clear. An agreement was reached as to the fling of a late report which was not able to be complied with and then the Member refused to admit the late report. It cannot be admitted as fresh evidence in appeal in these circumstances. That would be unfair to the respondent. The Commission’s rules are designed to be fair to both parties. When the Member refused to admit the late reports of Dr Nair, the appellant could have discontinued the proceedings and recommenced with her new evidence giving the respondent the opportunity to respond. She chose not to do so and to attempt to have the fresh evidence admitted on appeal. The Appeal Panel declines to admit the additional evidence.
In respect of the appellant’s additional statement dated 18 February 2023, it is a commentary on the assessment and suggests it corrects minor errors of fact, and elaborates on matters in the MAC. The appellant submitted a statement on 24 October 2022 and the additional statement adds nothing probative. The Appeal Panel declines to admit this additional evidence.

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. They are not repeated in full, but 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.
The following matters have been referred for assessment (s 319 of the 1998 Act):
“●      Date of injury: 6 June 2019 (deemed)
·        Body parts/systems referred: Psychiatric/Psychological disorder
·        Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:

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)
1. Psycho-logical	6 JUNE 2019 (DEEMED)	11 page 55-60	14	7	One-tenth	6
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					6%

The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

Table 11.8: PIRS Rating Form

Name	Ching Yee Lee	Claim reference number (if known)	W4734/22
DOB	xxxx	Age at time of injury	38-year-old
Date of Injury	6 JUNE 2019 (DEEMED)	Occupation at time of injury	Exponential Recruitment Pty Ltd (TAFE)
Date of Assessment	13/1/2023	Marital Status before injury	Single

Psychiatric diagnoses

1. Major depressive disorder with anxiety and some trauma symptoms.

2.

3.

4.

Psychiatric treatment

Psychologist

Psychiatrist

Medications

No psychiatric admission

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

2

Ms Lee reported neglecting her self-care. She said she does not shower regularly, generally only once a week. She skips meals and her weight fluctuated by 5kg recently.

She is capable of independent living without regular support and does not needs prompting with her self-care.

Social and recreational activities

3

She used to have an active social life and went out with her friends regularly, play golf, go to the gym and beach.

She has stopped attending social gatherings.

She has no social recreational activities now.

She does not eat out with her friends or go to restaurants.

Travel

2

Ms Lee is anxious when she leaves home.

She can travel locally and overseas on her own.

Social functioning

2

She is anxious and socially avoidant, and does not see her friends. She maintains contact with her friends and brother by messages. She lost friendships.

The relationship with her general family is good and they are close.

Concentration, persistence and pace

2

Ms Lee described having very poor concentration.

Her mental state examination is consistent with 2. She can focus on computer-based work for a few hours, with reduced pace and concentration.

Employability

2

She has been performing a similar full-time role in a different work environment. Her performance has been adequate. She felt burnt out and took leave, and travelled to New Zealand to help her father who is recovering after surgery.

Score

Median Class

2

3

=2

Aggregate Score Impairment

Total

%

+

13

7

Pre-existing injury

One-tenth

Treatment effects

No substantial or total elimination of impairment with treatment, and therefore no treatment uplift. She felt worse despite treatment over time.

0

Final WPI

6

The Medical Assessor made a deduction of one-tenth under s 323 in respect of a pre-existing condition or abnormality.
The worker appealed. The appeal concerns complaints about the assessment in four of the PIRS categories, namely self care and personal hygiene, social and recreational activities, social functioning and employability and the Medical Assessor’s deduction under
s 323. In summary, the appellant submitted that the Medical Assessor erred in this regard by failures which included the following:
·        assessing Class 2 for Self Care and Personal Hygiene when he should have assessed Class 3;
·        assessing Class 3 for Social and Recreational Activities when he should have assessed Class 4;
·        assessing Class 2 for Social Functioning when he should have assessed Class 3;
·        assessing Class 2 for Employability when he should have assessed Class 3, and
·        in making a deduction under s 323 and failing to adequately explain his reasoning for making a deduction.
In summary, Exponential Recruitment Pty Ltd (the respondent) submitted that the Medical Assessor did not err and did not make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories and when making a deduction under s 323. A deduction under s 323 can only be made if any pre-existing injury, abnormality or condition has contributed to the level of permanent impairment assessed.
The Medical Assessor took a detailed history which was broadly consistent with the other evidence before him. The Medical Assessor recorded as follows:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Regarding the problem at TAFE, Ms Lee said that she was treated like a dog and she felt overloaded. There was poor treatment by various people at work, with people screaming at her, including her immediate manager, her co-worker and her line manager. She recalled she was bullied and not respected. She stated management allowed other people to use and abuse her and to scream at her.
Ms Lee said she constantly had to explain herself over the same issue. She escalated her concerns to the line manager with no support provided, and subsequently, she stated they turned their back on her. She said in June 2019, they asked her to sign a new contract and the next day she was fired, and the company’s explanation was that she was not happy working there. She said that they changed her contract after she reported bullying behaviour. She had never done anything wrong, they never tried to solve the problem or offer mediation, and then they tried to escort her out of the building after she was fired. She was unfairly dismissed.
She advised that the workplace problems and her work stress started on the 17^th of April 2019 when she was first screamed at, one-on-one by a team leader.
·    Present treatment:
Ms Lee is taking:
·    Zoloft 200 mg
·    Seroquel 75 mg
She previously took Cipramil.
She has been consulting Brian Kearney, psychologist, and having weekly sessions recently.
She consulted Dr Zhuang Miao, psychiatrist, then Dr Michael Diamond for 1 session, and Dr Christopher Cocks in the past 12 months, recently every 4 to 6 weeks. They are psychiatrists.
·    Present symptoms:
Ms Lee said over the last couple of years she has felt worse over time, because she has PTSD and struggles with the trauma. She said she feels like people are looking at her, criticising her and talking down to her.
I asked about anxiety attacks and she said she has it every minute and it is constant. She has heart pounding and feels like her anxiety is through the ceiling all of the time. There were no specific triggers identified. She said she feels that the trauma is coming back all the time.
She reported having depressed mood "all the time".
She has reduced enjoyment and motivation.
She reported having subjectively major concentration and memory problems. She said she cannot remember things that happened yesterday and cannot focus at work.
Her weight fluctuated by 5kg, with no major change overall.
She reported having sleep problems, and Seroquel is ineffective.
She described being tense and difficult to relax, and panic attacks.
She reported having a low tolerance for frustration.
She avoids social situations due to her anxieties.
Ms Lee denied having suicidal ideation or psychotic symptoms.

· Details of any previous or subsequent accidents, injuries or condition:

Past psychiatric history:
I asked about her previous psychological treatment history, symptoms and diagnosis, and she said she has never had any treatment or had any psychiatric problem.
I discussed with Ms Lee, in her statement, in 2016 she was diagnosed with depression when working at DWS Consultancy and had treatment with the Employee assistance program. She said she only attended one or two sessions and didn’t have any psychiatric medication. She recalled she was being bullied by a co-worker, who took credit for her work and said she did not suffer a nervous breakdown. She said she did not suffer depression or anxiety, she was just unhappy and she continued working.
I also discussed with Ms Lee, that her psychiatrist wrote that she suffered PTSD since 2016 and discussed Dr Miao’s records, and she disagreed with that assessment.
I discussed with her that her GP, Dr Kim, had written that on the 29^th of January 2019 (1 day after she commenced at TAFE), she suffered Generalized anxiety disorder, and she had no specific explanation about that entry.
Subsequent psychological injury:
Nil.
Background history:
There is no forensic history.
She does not have recreational drug or alcohol problems.
I asked about her mother’s depression and she said it wasn’t really depression, it was just to do with ageing and she didn’t take any medication for it. I confirmed her brother had drug-induced psychosis.
She was born in Malaysia and went to New Zealand and first came to Australia in 2011. She said there were no problems growing up or any trauma. She grew up with her parents, being the younger of two siblings.
I asked Ms Lee about the physical and emotional abuse from her brother and piano teacher, and she disagreed with her psychiatrist’s assessment and said they was normal argument in the family.
She has never been married and does not appear to have had a long-term relationship, and said she has been single around ten years now.
· general health:
She suffered retinal detachment around 2018. She had Hepatitis B when she was born.
· Work history including previous work history if relevant:
She completed an IT degree and later a Master Degree in IT in 2005 from the University of Auckland. She has always performed IT work.
Ms Lee had worked for TAFE NSW as a full-time IT tester and did not have secondary employment. She recalled she worked there between 28^th of January 2019 and June 2019.
In the first two years after TAFE, Ms Lee said she didn’t do any work and explained she had too much emotional breakdown and couldn’t cope. Later, she did confirm she did some casual work for legal aid. In December 2019 she did five weeks work in IT support for a new project and in June 2020, she worked for legal aid again for maybe one or two months in a different phase of the same project. Ms Lee said they offered her more work, but she couldn’t do it because of her anxiety. She said she could only manage the work for five or six weeks and not more.
In September 2021, Ms Lee started work at the Bank of Queensland and is still employed there. She took leave from November 2022 and reported that she felt burnt out. She spoke to her manager; there has been no problem with her performance but she said she found the nature of the work stressful and she needed to take a break and she also returned to New Zealand to look after her father. I asked her whether she had taken other time off when working there, and she said that in mid-last year she went back to Malaysia with her father and she still performed her normal work from Malaysia.
She is working full-time for the bank and reported that she is a test analyst and this is the same job as she did at TAFE. Her manager is in Brisbane and she works from home. She will communicate with the team and there will be tasks assigned to her, she would test the software to ensure that it is working as expected. The software involved the banking website and the mobile app. If something doesn’t work, she would lodge it as a defect and the software developer will then fix it. She reported that she feels stressed because of the similar work culture there. She also noted that both TAFE and the bank have the same software company Deloitte - she is now working with a different team in Deloitte than when she was at TAFE.

· Social activities/ADL:

Ms Lee is 41 and lives on her own. She has no partner and no dependents.
In November 2022 she returned to New Zealand because her father had an operation, and she has been taking him to the hospital and some medical appointments. She is living with her parents there and intends to return to Sydney in February 2023.
When she was working in November 2022, she said she would wake up at 8 or 9 o’clock in the morning, take her medication, drink some coffee then check her email and perform computer-based work. She usually had brunch at about 11 am and then returned to work until about 5 or 6 pm. She said she doesn’t always eat dinner; sometimes she would just have soy milk or some junk food, and she would go to bed quite early. She said she doesn’t go out or do anything.
Since she moved to New Zealand, she said she has a similar routine. Sometimes she returned to bed at 10 or 11 am. Her mother cooks lunch and she had dinner with her parents at maybe 6 or 7 at night.
When Ms Lee is living by herself she said that the shopping is easy because she lives in an apartment in Chatswood above the train station, and there is a Woolworths grocery store below in the same apartment complex, where she does her shopping. Ms Lee does the laundry once every fortnight and said she doesn’t change her clothes regularly. She said she doesn’t tend to drive in Sydney. In Auckland she has driven her father to the hospital.
Ms Lee used to have a lot of friends. They would go out regularly and eat out. She used to go to the gym and played golf, but said she stopped doing all of these activities. She doesn’t go to the beach anymore either.
She doesn’t see any friends now and sometimes, she has message contact with them, for example, at Christmas or special events.
She has a reasonable relationship with her parents. They go out for groceries together and sometimes eat at a café when they are out. She has a brother in Malaysia and said that they maintain contact by messaging, and said they have a good sibling relationship now.
Ms Lee has had a number of overseas trips. In 2022 she went to New Zealand and Malaysia. She explained that her father was to have an operation and wanted to visit her family in Malaysia first, so her father came to Sydney and together they went to Malaysia. She has also gone back to visit her family in New Zealand and she said she has taken three trips in the last three years. Ms Lee recalled she flew by herself and she requested her doctor give her a support letter for a flight assistant because of her anxiety attack, but she was not eligible because this was only for physical disability. She said that she coped with flying by taking Zoloft one or two hours before the flight.”

The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Ms Lee was assessed by video. She was alone, and her mother was also at home during the assessment. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment. The assessment took 54 minutes.
Ms Lee was bespectacled and had dyed hair. She engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. She was mildly restricted in her affect range and reactivity.
Ms Lee was talkative and was easy to comprehend. She spoke spontaneously. She was not thought disordered.
Ms Lee provided a coherent history and elaborated on various aspects of her history. She was consistently focused throughout the assessment. She did not perseverate and there was no set-shifting difficulty, and demonstrated a good speed and pace.
At the end of the assessment, I asked Ms Lee for additional information that she thought may be relevant and she clarified my role with PIC, and said her lawyer has organized another IME report. I discussed I would consider all document provided by the PIC.”
The Medical Assessor made a diagnosis as follows:

“● summary of injuries and diagnoses:

Ms Lee has suffered episodes of workplace bullying and she had brief treatment in 2016 in relation to another workplace bullying incident. Her psychiatrist thought that she developed PTSD from 2016 and her GP noted one day after she started work at TAFE, she has Generalized anxiety disorder. Ms Lee, herself, gave the history that she never suffered any real psychiatric problem and was simply unhappy with her previous work and her PTSD stemmed from work with TAFE.
Based on my assessment, I don’t believe the described workplace issue at TAFE qualified for PTSD as DSM-5 PTSD criterion A event description was not fulfilled. I agree with Dr Thomas Oldtree Clark that she suffered major depressive disorder.
Given the inconsistencies, my overall view, is that there is sufficient evidence to conclude there was a pre-existing psychiatric disorder, which increased her vulnerability and her current impairment. Her trauma-related experiences have been repetitive, and there is a greater injury impairment as a result of her pre-existing psychological condition.
I have discussed Ms Lee's WPI rating in relation to other reports, under 10c.

· consistency of presentation

I have discussed the inconsistencies in history with Ms Lee and discussed the reports in my package with her.”

The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. Four of these assessments are the subject of complaint on appeal.
The Medical Assessor made a deduction under s 323 of one-tenth which is the subject of complaint on appeal. The Medical Assessor explained the deduction as follows:
“Yes, there was a pre-existing condition which contributes to a proportion of Ms Lee's current loss of efficiency and impairment. She has had multiple similar psychological injuries (similar in mechanism of injury and in some psychological symptoms). There is a consensus amongst psychiatrists and psychologists, a person generally has greater impairment when there was an earlier similar injury, even when the earlier injury has entered an asymptomatic state.”
The Medical Assessor had regard to the other evidence that was before him upon which he made brief comments as follows:
“Ms Lee's statement noted her education and employment history. Around 2016 she experienced psychological symptoms when working for DWS. She advised Dr Thomas Oldtree Clark was mistaken and she had not received treatment from a separate psychologist or psychiatrist, and she was asymptomatic prior to TAFE. During TAFE she suffered a psychiatric injury from being bullied and mismanaged, and listed a number of people that had mistreated her, and subsequently unfairly terminated. In November 2019 she accepted work in legal aid. She did not seek medical attention with respect to her deteriorating mental health until March 2020, and saw Dr Miao, who diagnosed PTSD. She does not agree with Dr Potter’s IME assessment that her condition has not reached MMI as she believes her condition has stabilised. Ms Lee said she lives independently, but often missed eating meals and relied on instant noodle and junk food and rarely goes shopping for groceries. She no longer goes to the gym, beach or play golf. She used to have a lot of friends at the gym. She is going to New Zealand and requires flight assistance. She believes she can work remotely and is working for the Bank of Queensland at present, but has some deterioration in concentration and she finds that she is responding to work queries much slower.
Ms Lee's other statements noted a similar history with more detail regarding her treatment and the workplace problems.
Dr Zhuang Miao, psychiatrist, treating psychiatrist reported on 8^th of August 2020, handwritten report noted Ms Lee suffered PTSD from bullying and harassment and the work experience felt life threatening to her. She reported PTSD symptoms after workplace bullying in 2016, which became much worse after being bullied at TAFE. She had no pre-existing conditions before 2016.
Dr Miao, 28^th of March 2020 report noted Ms Lee has PTSD since 2016 that was worse last year because of another workplace bullying at TAFE. Her motivation is okay, she enjoyed talking to friends, her weight is stable, appetite is good, her concentration is not as good as before and her memory is okay. Ms Lee's mother has depression. Developmentally, her parents argued a lot and her brother physically abused her when she was a child. There was an emotionally abusive piano teacher. She described mother as being negative and favouring the brother. She has never married or had children. Ms Lee had a few instances of workplace bullying and sexual harassment in various jobs in the past. Diagnosis of PTSD.
Dr Brian Kearney, psychologist 31^st of October 2020, noted severe anxiety, agoraphobic and trauma symptoms. She was not fit for work.
Dr Michael Diamond, treating psychiatrist 10^th of September 2020, noted issues with TAFE. The background does not include significant previous psychiatric illness and that in 2016, when working for NBN her colleague took credit for the work she had done. There were clear features of PTSD, depression and anxiety, and she was not fit for work.
Dr Thomas Oldtree Clark, IME psychiatrist reported on 9^th of August 2021, noted the issue with work at TAFE and previously Ms Lee was very active and played golf and loved cardio workouts. She is not looking after herself, has given up travelling and does not drive or go to the beach. He diagnosed major depressive disorder, although he did not take a history of her psychiatric history before TAFE. He provided WPI with final rating being 19%.
Comment:
Dr Clark rated social functioning as a 4 and noted that Ms Lee has no relationship. In my assessment, I noted that she had been single for ten years, she has good friends normally and would go out with them. She doesn’t see them now and maintains text message contact. She said she has a good relationship with her brother in Malaysia and also with her parents. Overall, I consider this consistent with a rating of 2.
In terms of employability, Dr Clark rated 4, which is incorrect given that Ms Lee is working full-time in work with a different employer, performing pre-injury duties remotely and, therefore, I rated 2.
Dr Brian Potter provided a number of IME reports, 20^th of October 2020, noted Ms Lee began work on the 28^th of January 2019. She is living on her own. She has no social activities. Her concentration is not good. Ms Lee's relationship with her family is good. They have contact through WhatsApp, she has a problem with reading and cannot finish. She would read the first line and cannot continue. There is no past history of psychological disturbance. He diagnosed an adjustment disorder and said there was a possibility of autistic functioning, although it is unclear how he came to this impression.
Comment: I have not identified autism as a diagnosis.
Dr Potter, 2^nd of December 2020, advised she has adjustment disorder and no PTSD.
Dr Potter, 20^th January 2020, reassessed Ms Lee and advised that MMI has not been reached at this point. He believed she gave unclear dismissive-like responses to enquiries about her living circumstances. There is no past psychiatric history. Some of the current features are consistent with PTSD. He believes she is totally incapacitated for work.
Comment:
He did not take a history of her current work and simply noted that she has worked as a test analyst and did not appear to be aware of her employment history after TAFE.
My view is that MMI has been reached as she has had sufficient treatment.
Ms Lee’s further statement, 24^th of October 2022, noted her contract with TAFE.
24^th of August 2020 report from Dr Nam-Eun Kim on 29^th January 2019, noted Generalized anxiety disorder. She suffered PTSD from workplace bullying.
The Medical Assessor gave reasons for making a deduction of one-tenth under s 323 to take account of the pre-existing condition suffered by the appellant as follows:
(a)    In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)there was a pre-existing condition.
(b)    The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Ms Lee's pre-existing condition contributed to her current impairment.
My view is that there is a pre-existing contribution. The previous psychological injury is a significant vulnerability and contributes to her current psychiatric impairment. There is a greater impairment as a result of the earlier injury.
(c)    The extent of the deduction is difficult and/or costly to determine, so in applying the provisions of s 323(2), I assess the deductible proportion as one-tenth.
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The appellant complains that the Medical Assessor has erred in respect of four of the categories assessed, namely Self-Care and Personal Hygiene, Social and Recreational Activities, Social Functioning, and Employability.
The Panel cannot interfere with these ratings absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Panel will deal with each category in turn.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
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.

The Medical Assessor rated mild impairment at Class 2 with the following reasoning:
“Ms Lee reported neglecting her self-care. She said she does not shower regularly, generally only once a week. She skips meals and her weight fluctuated by 5kg recently.
She is capable of independent living without regular support and does not needs prompting with her self-care.”
The Medical Assessor can not rate impairment on self report alone. He has to make a clinical judgment using his clinical expertise on the day of assessment. The appellant. on the history given on the day of assessment, able to look after herself adequately and live independently. The Appeal Panel notes that she was able to go overseas and help care for her parents when her father had surgery. She had been living independently for some years prior to this. She is able to care for herself adequately. The panel can discern no error in the Class 2 rating.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.

Class 2

Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).

Class 3

Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

Class 4

Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.

Class 5

Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

The Medical Assessor assessed a moderate impairment at Class 3 with the following reasoning:
“She used to have an active social life and went out with her friends regularly, play golf, go to the gym and beach.
She has stopped attending social gatherings.
She has no social recreational activities now.
She does not eat out with her friends or go to restaurants.”
The appellant submitted that a Class 4 or severe impairment should have been assessed.
The Appeal Panel can discern no error in the rating of a moderate impairment. Class 3 is the best fit and was that rated by the appellant’s qualified IME, Dr Oldtree Clark. There is no evidence that the worker could only be assessed as class 4, the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.
In respect of Social Functioning, Table 11.4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).

Class 2

Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3

Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

Class 4

Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).

Class 5

Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

The Medical Assessor assessed Class 2 with the following reasoning:
“She used to have an active social life and went out with her friends regularly, play golf, go to the gym and beach.
She has stopped attending social gatherings.
She has no social recreational activities now.
She does not eat out with her friends or go to restaurants.”
The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3. There is no expert opinion which supports a Class 3 assessment. The IME qualified to provide an opinion on behalf of the appellant Dr Oldtree Clark had assessed a Class 4 and the Medical Assessor explained why his opinion differed as follows:
“Dr Clark rated social functioning as a 4 and noted that Ms Lee has no relationship. In my assessment, I noted that she had been single for ten years, she has good friends normally and would go out with them. She doesn’t see them now and maintains text message contact. She said she has a good relationship with her brother in Malaysia and also with her parents. Overall, I consider this consistent with a rating of 2.
The assessment by the Medical Assessor accords clearly with Class 2. A mild impairment is the best fit as the appellant has maintained strong relationships with family members, who both care for her and whom she cares for. She now lives abroad from her friends (Dr Clark notes the setting of her social life was her gym) and maintains text message contact with them. The appeal panel can discern no error in the Class 2 rating.

In respect of Employability, Table 11.6 of the Guides provides as follows:

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.

Table 11.6: Psychiatric impairment rating scale – employability

The Medical Assessor rated Class 2 with the following explanation:
“She has been performing a similar full-time role in a different work environment. Her performance has been adequate. She felt burnt out and took leave, and travelled to New Zealand to help her father who is recovering after surgery.”
The appellant says the rating should have been a moderate impairment at Class 3. There is no expert opinion which supports a Class 3 rating. The IME qualified on behalf of the appellant Dr Oldtree Clark assessed a severe impairment at Class 4. The Medical Assessor explained why his opinion differed as follows:
“In terms of employability, Dr Clark rated 4, which is incorrect given that Ms Lee is working full-time in work with a different employer, performing pre-injury duties remotely and, therefore, I rated 2.”
The appellant submitted she can only do her current role because she is able to work remotely. The fact is the assessment is based on the correct criteria in the Guidelines, she is performing a similar role on a full-time basis in a different work environment.
The Appeal Panel can discern no error in the assessment of Class 2 as the Medical Assessor’s findings accord with the criteria for that class and it is the best fit.
A deduction can only be made under s 323 if the pre-existing condition has contributed to the level of permanent impairment assessed. The Medical Assessor is required to reach his own independent opinion. He must explain his reasons adequately. The appellant submits that the Medical Assessor failed to do so. However, in determining whether the path of reasoning is adequate the MAC must be read as a whole. The Medical Assessor has provided a detailed and thoroughly reasoned MAC that had taken care with the recording of the history and has had due regard to the other evidence before him, including in regard to the appellant’s pre-existing condition. The Appeal Panel can discern no error in the deduction of one-tenth made by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 January 2023 should be confirmed.

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Citations

Lee v Exponential Recruitment Pty Ltd [2023] NSWPICMP 490

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

0

New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792

Campbelltown City Council v Vegan [2006] NSWCA 284

[2023] NSWPICMP 490

4 October 2023