Leeton Shire Council v Richards
[2022] NSWPICMP 446
•8 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Leeton Shire Council v Richards [2022] NSWPICMP 446 |
| APPELLANT: | Melody Brook Richards |
| RESPONDENT: | Leeton Shire Council |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 8 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury impairment assessment; appeals by both the worker and the employer; the worker alleged error by the Medical Assessor (MA) in the assessment under the category under the Permanent Impairment Rating Scale (PIRS) of concentration, persistence and pace; this rating was confirmed; the employer alleged error under the PIRS categories of social and recreational activities which was confirmed and employability which was revoked; the employer also alleged error in the allowance of 2% whole person impairment for the effects of treatment which was confirmed as open to the MA; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 May 2022 Ms Melody Brook Richards (the appellant worker) and on 17 June 2022 Leeton Shire Council (the respondent employer) respectively lodged Applications to Appeal Against the Decision of a Medical Assessor Brian Parsonage, a Medical Assessor (MA), issued a Medical Assessment Certificate (MAC) on 17 May 2022. The appeals are heard together and for ease of reference the worker will be referred to as the appellant worker and the employer will be referred to as the respondent employer.
The appellant worker relied on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 respondent employer relied on the following grounds of appeal under s 327(3) of the 1998 Act:
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant worker 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 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 additional 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 worker seeks to admit the following evidence:
(a) supplementary statement of the appellant worker 24 May 2022.
The respondent employer objects to the admission of the above evidence.
The evidence given by the appellant worker in the statement goes to matters of history and self-reporting of current symptoms. The appellant worker has had the opportunity to provide her history and report her symptoms to the MA on the day of examination and to provide statements of evidence as part of her application. The MA has provided a detailed history and detailed the appellant’s self-report of symptoms. Accordingly, in this case, there is no justification for allowing further statement evidence from the appellant worker once the assessment of the MA has been undertaken. Therefore the Appeal Panel determines that the following evidence should not be received on the appeal:
(a) supplementary statement of the appellant worker 24 May 2022.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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 matter was referred to the MA for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 06.08.2021 (deemed)
· Body parts/systems referred: Psychiatric/psychological
· Method of assessment: Whole Person Impairment “
The MA 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. Psychiatric and psychological disorders
06.08.2021 (deemed)
Chapter 11, section 1.32
-
9 + 2%
Nil
11
Total % WPI (the Combined Table values of all sub-totals)
11
The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:
“Table 11.8: PIRS Rating Form
Name
Melody RICHARDS
Claim reference number (if known)
-
DOB
07.09.1975
Age at time of injury
46
Date of Injury
06.08.2021 (deemed)
Occupation at time of injury
HR Manager
Date of Assessment
04.05.2022
Marital Status before injury
Married
Psychiatric diagnoses
1. Persistent Depressive Disorder with anxious distress
2. Alcohol Use Disorder
Psychiatric treatment
Fluoxetine 20mg daily
Psychological Therapy
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self-Care and personal hygiene
2
Ms Richards was able to live independently although sometimes she relied on takeaway or easy to prepare food. She bathed most days and would wash her hair before she went out.
Social and recreational activities
3
Ms Richards rarely went out to social events. She attended an online book club and sometimes went for a meal or to the markets with her husband.
Travel
2
Ms Richards could travel by herself in her local area but not longer distances as she used to.
Social functioning
2
Ms Richards’ marriage had remained stable with no periods of separation or domestic violence but there was tension in her relationships with her children and loss of friendships.
Concentration, persistence and pace
2
Ms Richards was undertaking a Certificate IV TAFE course and had passed all five or six assignments so far this year but she reported working at a slower pace. She described ongoing difficulties with forgetfulness and poor concentration but had been able to read a “thin comedy book.”
Employability
5
Ms Richards reported a marked apprehension about attempting any work because she was concerned that she would not be able to do the work accurately. She reported that she could not reliably sustain energy and said that she was still “scared of people.” I considered that at present Ms Richards was not able to work at all in paid employment.
Score
Median Class
2
2
2
2
3
5
= 2
Aggregate Score Impairment
Total
%
2+
2+
2+
2+
2+5
16
9
The MA allowed an additional 2% whole person impairment (WPI) for the effects of treatment bring the total impairment assessed as a result of the referred injury to 11% WPI.
Both the worker and the employer appealed.
In summary, the worker appealed against the assessments under the PIR categories of concentration, persistence and pace.
In summary, the employer appealed against the assessments in the categories of Social and Recreational Activities and employability as well as against the allowance of 2% WPI for the effects of treatment.
The role of the MA is to conduct an independent assessment on the day of examination. The MA 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 MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The MA took a detailed history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Ms Richards began working for Leeton Shire Council in July 2016. She said the problems in her workplace which caused her work-related psychological problems began in 2019. She said she had been in a difficult work environment because there was a high turnover of staff which caused increased workload for Human Resources and the General Manager did not approve replacement staff which put extra pressure on existing staff who put pressure on Ms Richards. Nevertheless she felt she was managing until 2019 when she received complaints of sexual harassment of female staff in the workplace by a male manager. Ms Richards said that the General Manager went to considerable lengths to protect the male manager and arranged for ‘an investigation that was not an investigation’ into the allegations of sexual abuse. Issues to do with that investigation were coming to a head in the second half of 2019 when the General Manager, without warning, introduced a restructure of the workforce which abolished Ms Richards’ position.
Ms Richards said that she ‘completely fell apart at this time’ (November 2019) and had not returned to work since. She said that her psychological symptoms had started six months earlier and progressively worsened.
She said her symptoms were at their worst from about November 2019 to February 2020, although she didn’t feel much improvement until liability was admitted in late 2020. She experienced symptoms of depression and anxiety which she said were predominantly depressive in late 2019/early 2020 and more recently predominantly anxiety symptoms. She also drank more alcohol and found it hard to control her drinking.
Over the last two and a half years Ms Richards reported being constantly depressed with only variation in the severity of her depressive symptoms. When depressed she experienced initially poor appetite and more recently overeating. She had difficulty falling and staying asleep and her energy levels were low. She said she had formerly been a very confident person but her self-esteem reduced. She had difficulties with concentration and had feelings of hopelessness and suicidal thoughts but did not harm herself.
She felt anxious most of the time and was generally tense but with ‘spikes’ of anxiety if she had to go to places where she felt uncomfortable, such as a grocery shop. She had a fear something bad would happen and sometimes felt she might lose control of herself and begin yelling inappropriately.
Ms Richards had received treatment through her GP and a psychologist. She continued to take Lovan which she had been taking for a pre-existing condition and there had been no change or increase in the dose of her medication.
She saw her psychologist on a fortnightly and more recently on a monthly basis.
For some years (see below) Ms Richards had had periods where she would drink ‘too much’, typically a bottle of wine a night. Since November 2019 she had tried many times to stop drinking and sometimes she would manage but then she would ‘fall into a hole and drink wine every night.’ She said that she knew that it was not helpful to drink while suffering anxiety and depression but she used alcohol as a way of gaining some relief from feelings of distress.
· Present treatment: Ms Richards continued to take Lovan 20mg daily prescribed by her GP and saw her psychologist on a monthly basis.
· Present symptoms: Ms Richards reported that she still felt persistently depressed but less severely than she had. She said she still occasionally has thoughts of suicide.
She reported she continued to feel anxiety symptoms as described above.
Ms Richards continued to have trouble limiting her consumption of alcohol, often drinking a bottle of wine in the evening.
· Details of any previous or subsequent accidents, injuries or condition: M Richards told me that she had worked for 10 years in the Navy and as an unsworn support member of the Victoria Police as well as working for Murray Water and then doing some teaching jobs after gaining a Bachelor of Business and a Graduate Diploma of Education. She said she had never had any problems in her work previously and that her only psychological problems prior to 2019 were that she had been ‘a little depressed after my first baby’, for which she said she did not require any treatment and about 12 years ago had been ‘a little depressed about life’ in relation to ‘extended family issues’ and at that time she had ‘tried antidepressants but hated them.’
On specific questioning Ms Richards acknowledged that she had had a workers compensation claim for bullying and harassment after problems working at Murray Water. She acknowledged that after that she ‘drank too much’ and could only stop drinking for short periods before she would start drinking again and she said that after her previous episode of depression in 2008 she was “drunk for two years” as stated by Dr Jones in his report dated 29.02.2020.
I asked Ms Richards about the GP consultation record March 3, 2016 (just prior to her beginning work for Leeton Council) when it was recorded that for six months she ‘feel lethargy, tired in daytime, not good quality sleep at night, stress.’ Ms Richards said that the stress referred to a heavy workload she had while she was teaching in Griffith. I asked her about the reference to her having a fear of public speaking in the GP records dated July 31, 2018 where it was stated that she had to do an important presentation for work and she was under significant pressure at work. She Richards said that she had always been ‘a bit shy’ and had suffered performance anxiety, but she felt she had tackled this by doing teaching. Although she still didn’t like doing presentations but would do it if she had to.
There had been no subsequent accidents, injuries or conditions unrelated to her work-related condition.
· General health: Ms Richards reported being in good general health and was not on treatment for any physical health conditions.
· Work history including previous work history if relevant: See above
· Social activities/ADL: Prior to the onset of her work-related condition Ms Richards reported she was particular about her dress and appearance and shared meal preparation with her husband.
She used to go to the gym with a girlfriend. She and her husband used to work on their small farm and she played social golf. She did crafts and painting and had travelled to Melbourne by herself to compete in a half marathon.
She had no difficulty travelling independently.
Ms Richards reported that she had a stable marriage and her relationship with her children was very good. She had a large group of friends and a good relationship with her parents.
She said she used to read a book a week and had been able to study. She was employed full-time as a HR manager and had done volunteer work at her children’s’ school and sports.
Currently:
Ms Richards reported that after being very disabled during the first year after she stopped work, her ability to function during 2022 had definitely improved. Late last year she had had to live by herself for a couple of months. She had managed but relied on simple meals and shakes, but her condition had improved since then. She had a bath most nights but sometimes wouldn’t wash her hair unless she had to go out to TAFE or for an appointment. She shared meal preparation with her husband but sometimes they would eat out or get frozen meals delivered.
Ms Richards reported that she didn’t go out with her friends anymore but attended a book club online once every two months. She had previously tried going to the gym but eventually found it difficult and stopped going last year and was doing exercises at home. Sometimes she would go out with her husband for a meal or to a local market.
Ms Richards was able to take herself to TAFE classes three days a week or to the supermarket but she felt too anxious to travel long distances outside her local area.
Ms Richards reported that her marriage had remained stable but there was some tension in her relationship with her children who became exasperated at her reduced functioning. She had lost some friendships.
Ms Richards read from a written list of problems she had had last year when she said her poor concentration had caused her to leave a tap on and flood her house on more than one occasion. She said she had recently forgotten the date of Anzac Day (one day out), even though she had served in the Navy as has other family members. On the other hand since the beginning of this year Ms Richards had been doing a Certificate IV in Interior Design at TAFE and she attended classes three days a week. She had so far completed five or six assignments and had passed everything. She said, however, that things took her much longer than they used to. For the book club she said she listened to books rather than reading them but had been able to finish reading a ‘thin comedy book.’
Ms Richards had not undertaken any work and felt ‘scared of people.’ She said she had difficulty organising things and was concerned that she would not be able to do any job that required accuracy. She found it hard to sustain energy and one day a week she would ‘crash in bed’”.
The MA conducted an examination of 1 hour and 45 minute duration. He recorded his findings on mental state examination:
“On mental state examination Ms Richards was a casually dressed woman who did not appear unkempt. She understood the purpose of the interview and was cooperative. She appeared mildly to moderately depressed and moderately anxious throughout the one hour forty-five minute examination. She did not display psychomotor agitation or retardation.
She gave a coherent history and, although she occasionally appeared flustered, she did not demonstrate gross cognitive impairment. She had no signs or symptoms of psychosis.”
The MA summarised the injury and his diagnosis as follows:
“Using DSM-5 criteria I diagnose Ms Richards as suffering from Persistent Depressive Disorder with anxious distress on the basis of her more than two year history of persistent depression associated with appetite changes, insomnia, low energy, low self-esteem, poor concentration and feelings of hopelessness with persistent and significant symptoms of anxiety. She also satisfied DSM-5 criteria for an Alcohol Use Disorder on the basis of her history and the references in the GP record and other reports of her drinking a bottle of wine a day and not being able to consistently control her drinking despite knowing that her psychological symptoms were likely to be exacerbated by alcohol and the reference in her GP records of being given treatment for alcohol withdrawal.”
The MA made comment on the consistency of the appellant workers presentation as follows:
“In general Ms Richards’ presentation at examination was consistent with the history she provided. There were some inconsistencies between her history and the documentation provided. She denied having previous problems in her work or suffering a previous work-related psychological condition until specifically questioned. She tended to minimise her use of alcohol until referred to references of alcohol misuse in the documentation. Her history of being very forgetful and having problems with concentration was at odds with her ability to be passing the Certificate IV TAFE course she is currently undertaking.”
In response to the specific question “Have all body parts/systems stabilized/reached maximum medical improvement?” the MA noted “Yes Ms Richards’ conditions had improved and had stabilised at an improved level during 2022 and no additional treatment was planned.”
He made no deduction under s 323 for any previous condition, abnormality or injury and this is not the subject of complaint by either party on appeal.
The MA explained his impairment assessment as follows:
“a. My opinion and assessment of whole person impairment
Using the NSW Workers Compensation Guidelines for the Evaluation of Impairment I assessed that Ms Richards’ psychological injuries gave rise to a whole person impairment of 9% for the reasons set out in Table 11.8 below.
In making that assessment I have taken account of the following matters:-
The consistent history of Ms Richards’ experiencing symptoms of anxiety and depression related to problems at her work which were most severe in late 2019/2020 and which have partially improved since then. Where there were inconsistencies I relied more on objective evidence so that I put more weight on Ms Richards being able to currently undertake a TAFE course at a slower pace rather than her description of being forgetful and making mistakes in day to day activities, which were prominent last year.
b. An explanation of my calculations (if applicable)
Worksheet /actual calculations attached? Yes (see PIRS Rating Form)
Mrs Richards had continued taking the same medication as she had been prescribed before the onset of her work-related problems in 2019. However I did consider that her psychological treatment, which had supported her reengagement in activities, had produced a significant reduction of her impairment. Ms Richards had not achieved a full remission of her condition so I added 2% for that effect.”
The MA made brief comment as required on the other medical opinions that were before him as follows:
“Dr Jones in his assessment of 04.02.2020 found that Ms Richards was suffering from depression and anxiety but because he considered that her condition was likely to be temporary he did not make an assessment of permanent impairment.
Dr Takyar assessed Ms Richards as also suffering from anxiety and depression and made diagnoses of Generalised Anxiety Disorder and Major Depressive Disorder which is not significantly different to the diagnosis I made. He saw her on two occasions one month apart. On the second occasion he assessed her as having a 22% whole person impairment. His description of her functioning was much worse than the description of her ‘Activities of daily living’ in his previous report only one month earlier, which suggested that her condition was not stable at that time. There has been an improvement in her condition since his assessment of permanent impairment.
Dr Lee in his assessment dated 05.11.2021 reported that her performance on symptom validity tests suggested that her history was unreliable and on that basis he did not make a diagnosis or consider that she had any permanent impairment. While I found some inconsistencies in Ms Richards’ history and presentation I did not consider that they precluded her having a diagnosable psychiatric condition or suffering some degree of permanent impairment.”
The appellant worker’s complaint on appeal concerns the assessment under the PIRS category of Concentration, Persistence and Pace. The appellant complains that the MA did not thoroughly question her on matters of critical importance including in relation to her ability to undertake the TAFE course and her difficulties with concentration and forgetfulness. Instead, it is submitted that the MA conducted a superficial analysis only and in the alternative. failed to adequately explain his approach.
In respect of the category of concentration, persistence and pace, the guides provide at Table 11.5 as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2
Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4
Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5
Totally impaired: needs constant supervision and assistance within institutional setting.
The MA assessed a mild impairment at Class 2 with the following explanation:
“Ms Richards was undertaking a Certificate IV TAFE course and had passed all five or six assignments so far this year but she reported working at a slower pace. She described ongoing difficulties with forgetfulness and poor concentration but had been able to read a ‘thin comedy book.’”
The MA noted in his mental state examination:
“She gave a coherent history and, although she occasionally appeared flustered, she did not demonstrate gross cognitive impairment.”
The MA cannot base his assessment on self-report alone but must have due regard to the other evidence before him and exercise his clinical judgment. He noted in regard to the appellant workers consistency of presentation:
“Her history of being very forgetful and having problems with concentration was at odds with her ability to be passing the Certificate IV TAFE course she is currently undertaking.”
The role of the MA is to conduct an independent assessment on the day of examination. He cannot base his assessment on self report alone but must exercise his clinical judgment based on his clinical findings on the day of assessment and having due regard to the other evidence that is before him. The MA has conducted an examination of 105 minutes duration and has taken a detailed history. He is entitled to rely on his clinical findings on the day of examination and the Appeal Panel can discern no error in the assessment of a mild impairment of Class 2. The MA’s findings and reasons accord correctly with the criteria in the Guides for a Class 2 assessment which refer to the ability to undertake a basic retraining course. This is exactly what the appellant has been able to do when undertaking and passing a TAFE course.
The respondent employer appealed the categories of Social and Recreational Activities and Employability.
In respect of the assessment of Social and Recreational Activities the MA assessed a moderate impairment at Class 3 and the respondent employer submitted the assessment should have been a mild impairment at Class 2. The appellant worker submitted that there was no error and the assessment of Class 3 should be confirmed.
In respect of Social and recreation activities the Guides provide at Table 11.2 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 MA assessed a Class 3 with the following explanation:
“Ms Richards rarely went out to social events. She attended an online book club and sometimes went for a meal or to the markets with her husband. “
The assessment of the MA is firmly within the criteria for Class 3 and the Appeal Panel can discern no error in the assessment of a Class 3 moderate impairment.
In respect of employability the Guides provide at Table 11.6 as follows:
Table 11.6: Psychiatric impairment rating scale – employability
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training.
The person is able to cope with the normal demands of the job.
Class 2
Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3
Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4
Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5
Totally impaired: Cannot work at all.
The MA assessed a Class 5 that the appellant is totally impaired and cannot work at all with the following explanation:
“Ms Richards reported a marked apprehension about attempting any work because she was concerned that she would not be able to do the work accurately. She reported that she could not reliably sustain energy and said that she was still ‘scared of people.’ I considered that at present Ms Richards was not able to work at all in paid employment.”
The Appeal Panel considers that the MA has erred in his assessment of total impairment as this is at odds with the appellant worker’s ability to undertake a TAFE course, which, even if done at a reduced pace requires regular attendance, with other people present, and many of the functions required in the workplace. When the MA’s clinical findings on the day of assessment are taken into account with the history and other evidence that was before the MA, the assessment for employability more properly fits the criteria for Class 4 severe impairment which provides:
“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.”
The respondent employer appealed the allowance of 2% WPI for the effects of treatment. The MA has explained that while there has not been total elimination of impairment, there has been substantial improvement afforded by the treatment and the Appeal Panel considers the assessment of an additional 2% WPI was open to the MA.
The calculations are therefore 2,2,2,2,3 4 which is a median Class of 2 and an aggregate of 15 which equates to 8% WPI and an allowance of 2% WPI for the effects of treatment gives 10% WPI as a result of the referred injury.
Accordingly, the Appeal Panel will revoke the MAC and issue a new certificate certifying 10% WPI as a result of the injured deemed to have occurred on 6 August 2021.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 May 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W343/22 |
Applicant: | Melody Brook Richards |
Respondent: | Leeton Shire Council |
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 Dr Brian Parsonage and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| 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. Psychiatric and psychological disorders | 06.08.2021 (deemed) | Chapter 11, section 1.32 | - | 8 + 2% | Nil | 10 | |
| Total % WPI (the Combined Table values of all sub-totals) | 10 | ||||||
0
2
0