Lekhin v Hairbiz International Pty Ltd
[2024] NSWPICMP 290
•15 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lekhin v Hairbiz International Pty Ltd [2024] NSWPICMP 290 |
| APPELLANT: | Nataliya Lekhin |
| RESPONDENT: | Hairbiz International Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 15 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to several of the psychiatric impairment rating scale namely, self-care and personal hygiene, travel, concentration, persistence and pace, and failed to provide adequate reasons; Panel agreed; re-examination occurred; The MA’s findings were inconsistent with the evidence; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 October 2023 Nataliya Lekhin (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
7 September 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
This matter was assessed under the Table of Disabilities.
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 the Panel determined that the Medical Assessor erred in his assessments in some of the psychiatric impairment rating scale (PIRS) categories, 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.
In correspondence to the Personal Injury Commission (Commission) dated 9 February 2024 the appellant said that due to some administrative errors, some documents had not been included in the Appeal application.
Following the issue of a Direction by the Panel, both parties made submissions regarding the admissibility of the documents.
In summary, the Panel agreed to admit the documents because the respondent submitted that it neither objected nor consented to their admission.
We do not intend at this point to set out the details of those documents. They will be discussed more fully below.
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 Douglas Andrews of the Appeal Panel conducted an examination of the worker on 8 May 2024 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 his assessments with respect to several of the PIRS namely, self-care and personal hygiene, travel, concentration, persistence and pace (cpp) and failed to provide adequate reasons.
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological injury on a deemed date of injury of 2 June 2020.
The Medical Assessor obtained the following history:
“Ms Lekhin had difficulty remembering the exact details of her mental health issues and the treatment she received. She told me, ‘I was doing well, working with Hairbiz Salon for approximately 11 years. There were two girls who were quite rude. I had informed the boss about their behaviour’. Ms Lekhin told me that she was able to continue in her job as the boss directed these two girls to behave appropriately with Ms Lekhin.
Ms Lekhin told me that in 2016, ‘The old owner sold the business. These two girls bought the business. After that, it became really stressful’. Ms Lekhin highlighted that from around the end of 2016/early 2017, ‘I was being singled out. I was targeted. I was assigned a lot of jobs, including cleaning, while we already had cleaners. One of the girls would speak rudely to me. She would often make bad comments in front of clients. It was quite embarrassing’. Ms Lekhin told me that she continued to work in her job due to her financial reasons. She told me, ‘I felt things would improve, although it kept getting worse’. Ms Lekhin told me that she made a decision to leave her job in June 2020 as she decompensated in her mental health and general functioning.
Going into details about her mental health symptoms, Ms Lekhin told me, ‘I started getting panic attacks since early 2017. I felt anxious if I had to talk to either of the owners. I also started having severe itchiness on my scalp. I was scratching my head till it bled. Now I can understand it was stress’. Ms Lekhin told me that she started experiencing significant sleep disturbance in addition to anxiety symptoms. She would ruminate about work issues. Ms Lekhin would wake up feeling tired. She struggled with her concentration at the workplace. Ms Lekhin described experiencing panic attacks at the workplace, adversely affecting her concentration. She would often have blurred vision and accordingly consulted her ophthalmologist. She told me ‘Ophthalmologist told me that I am stressed’.
On further clarification, it is evident that Ms Lekhin was experiencing a mix of anxiety and depressive symptoms, predominantly panic attacks, since early 2017. Her mental health gradually worsened with the emergence of pervasive depressive symptoms by 2020. Ms Lekhin told me she consulted her general practitioner (possibly) in early 2017. She told me she was initiated on antidepressant treatment, Cipramil 10 mg. The dosage of the treatment was gradually increased.
Ms Lekhin told me she possibly started therapy with a psychologist in May 2020. She has continued with the psychological therapy since then. Ms Lekhin told me she was referred to the psychiatrist in late 2020. She highlighted, ‘The psychiatrist increased the Cipramil dosage and trialled me on other medication including Zyprexa (antipsychotic) and Temazepam (sleep medication)’. Ms Lekhin told me that she continued on Cipramil, although she stopped Zyprexa and Temazepam as she experienced side effects.
Ms Lekhin told me that the insurance company ceased payment for her treatment ‘I had to stop seeing the psychiatrist. I saw a psychologist at my expense’. Ms Lekhin told me that she decided to return to work in March 2021 ‘I was not very confident. I took up this job as it is a small business, and the employer is quite supportive’. Ms Lekhin told me that she has been able to manage a part-time job since March 2021. She told me, ‘On some days, I do have panic attacks, although it is much less’. Ms Lekhin told me she would take a break during her shift if she felt anxious or exhausted. She does feel exhausted by the end of the day.
Ms Lekhin told me that she has continued to comply with antidepressant treatment and psychological therapy. She said, ‘Now I have very limited confidence. I get tired easily’.”
The Medical Assessor then noted present treatment and symptoms as follows:
“Ms Lekhin told me that she has continued to receive ongoing antidepressant treatment Citalopram, under the care of her general practitioner. She was not sure about the exact medication dosage. Ms Lekhin continues to receive ongoing psychological therapy.
Ms Lekhin told me, ‘I do get emotional easily. I feel anxious in any place apart from work or home. I do not go out with my friends. I only work because of my financial reasons. I do not have any confidence’. Ms Lekhin’s description indicates her experiencing an ongoing mix of anxiety and depressive symptoms. She does experience panic attacks in the context of any reminders about her previous job or any contact with the insurance company. Ms Lekhin continues to experience erratic sleep patterns ‘Some nights are better than the others’.”
Findings on mental state examination were reported as follows:
“Ms Lekhin can be described as an average-built, middle-aged lady. She presented casually dressed well-kempt. She maintained good eye contact with me. Ms Lekhin was alert and oriented to her surroundings. I was not able to elicit any significant cognitive deficits as per the rudimentary cognitive assessment. Ms Lekhin was distressed and tearful twice as she discussed her interaction with previous workplace colleagues. She spoke slowly with a strong accent. Ms Lekhin appeared to be struggling with her concentration and recall.
Ms Lekhin described her mood ‘I am always moody. I feel disappointed and empty’. Ms Lekhin presented with a mix of anxious and dysphoric affect with restricted affective range and reactivity. She continues to ruminate about past work issues and their adverse effect on her mental health. Ms Lekhin remains hopeful about experiencing further recovery and increasing her work hours. She has struggled with low confidence. Ms Lekhin denied self-harm ideation. She denied thoughts of hurting others.
I was not able to elicit thought disorder, perceptual disturbances, persecutory ideation or any other forms of psychotic symptoms. Ms Lekhin displayed good insight regarding her mental health issues and the need for ongoing treatment.”
The Medical Assessor then summarised the injuries and diagnosis.
In reviewing the documentation, the Medical Assessor said:
“Dr Richa Rastogi (Consultant Psychiatrist), in her report dated 10 November 2020, has provided details of Ms Nataliya Lekhin's workplace stressors and their adverse effect on her mental health. She has highlighted the diagnosis of adjustment disorder with mixed anxious and depressed mood. She has provided a Whole Person Impairment of 15%.
Ms Lekhin’s general practitioner records and notes from the psychologist provide details of the antidepressant treatment and the psychological therapy she received since 2020.
In his report dated 1 August 2022, Dr Thomas Bennett reviewed Ms Lekhin’s treatment and response. In the report, he highlighted, ‘Ms Lekhin worked as a senior hairdresser and has been working in a hairdressing salon, when the environment became hostile and she felt micromanaged, discriminated against, unsupported and victimised. This caused a flare in anxiety and depressive symptoms, and she has subsequently been diagnosed with adjustment disorder with mixed anxious and depressed mood. She also has a number of physical health symptoms including migraine and blurred vision.
She has been seeing the psychotherapist and psychiatrist and has been trialled on numerous medications’.
Dr Ben Teoh (Consultant Psychiatrist), in his report dated 16 February 2023, has highlighted the diagnosis ‘Her presentation is consistent with the diagnosis of chronic adjustment disorder with depressed mood (DSM-V diagnostic criteria)’. Dr Teoh provided a Whole Person Impairment of 7%.
Dr Richa Rastogi provided another report dated 9 April 2023, where she provided her comments about Dr Ben Teoh’s assessment. In her report, she highlighted, ‘Based on above, her WPI is 16%. Certainly, there is a difference in opinion as expressed by
Dr Teoh in his report and examination who has deemed WPI of 7%. He has not taken into account the reports of her treating team who has highlighted her functional deficits and ongoing residual depressive symptoms that continue to cause her ongoing impairment’.Dr George Jacobs (Consultant Psychiatrist), in his report dated 9 August 2020, has provided details of Ms Lekhin’s mental health issues secondary to workplace stressors. He has highlighted, ‘In conclusion, Ms Lekhin has a diagnosis of major depression. I asked her to increase Cipramil to 20 mg a day. She could intermittently take Normison 10 mg at night (sleep medication)’. Dr Jacobs wanted to increase her Citalopram dosage further.”
The Medical Assessor assessed 8% WPI.
For the reasons stated earlier, the Panel considered that the Medical Assessor erred in some assessments, having regard to the whole of the evidence.
All that evidence is now before us, and has been taken into account in our determination.
Medical Assessor Douglas Andrews reported to us as follows:
“1. The workers medical history, where it differs from previous records
Ms Lekhin is a 51-year-old hairdresser living in Bondi with her partner, an IT professional. She has an independent adult daughter and two stepsons, aged 13 and 18. The boys stay with her and her partner every second week.
They live in a freestanding house with a small garden.
She works 19 hours a week over three days as a hairdresser in a small salon near her home. Her employer is caring and supportive and makes allowance for challenges that arise because of her mental illness.
There have been no significant changes to her situation since her assessment with the MA in September 2023. However, she feels that her symptoms have worsened.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Lekhin continues to be cared for by her general practitioner, Dr Vlad Zeldovich, her psychologist, Beata Meshel, and her psychiatrist, Dr George Jacobs.
She sees her psychologist every 2-3 weeks and her psychiatrist every six months.
Her medications are citalopram 20 mg mane and, recently added, olanzapine 10 mg at night.
She has no physical health problems except recurrent migraine. She drinks a small amount of alcohol every few weeks.
Current symptoms:
Her mood varies, but she is often distressed and cries easily. She fears the future and feels hopeless, losing motivation to be active. She said, ‘I have no interest to enjoy anything.’
She is often anxious and tries to avoid anything that might remind her of her previous employer. She is more anxious when away from home and sometimes experiences panic. She is bothered by intrusive thoughts about her circumstances and past employment. She said, ‘I am scared of everything; I have no confidence.’
She described feeling detached, like she was ‘not herself’, and described ‘seeing shadows’.
She has poor concentration and memory.
When asked about self-harm or thoughts of suicide, she said, ‘This is not a life.’
She has initial and middle insomnia and is bothered by distressing dreams.
She eats a poor-quality diet, often binging. She said, ‘I am eating with no control, and then I feel worse.’ She has gained 10 kg. Her weight is 74 kg; at 168 cm, her BMI is 26.2, marginally overweight.
Her libido is ‘minimal.’
Activities of daily living:
On days that Ms Lekhin goes to work, she showers, dresses, and applies makeup. She explained that this was a requirement of her employment and emphasised that it was “not fancy, the minimum.”
When she is not working, she often sleeps in until between 9 and 11 AM. She gets up, has tea or coffee, and sometimes returns to bed. She often feels tired and lacks energy.
If not in bed, she spends her day sitting on the couch. She may turn on the television but can only attend to it for 15 or 20 minutes before losing focus.
She no longer reads because she can’t concentrate beyond one or two pages.
Her partner does most of the housework and often orders takeaway food. About once a week, Ms Lekhin prepares a meal – ‘simple things like pasta or a whole chicken.’ She often eats sandwiches but overeats.
Her husband’s children stay with them half-time. She does not contribute to their care.
She attends to hygiene and her appearance when she goes to work. On other days, she neglects to shower and pays less attention to her appearance. Her partner sometimes reminds her to shower in the evenings.
She has cancelled her gym membership and no longer exercises.
She drives herself to work, 5 to 7 minutes by car. The longest trip she has taken alone in the last six months is to Matraville, a 25-minute drive. Last week, she drove with her partner to Blackheath in the Blue Mountains for an outing. She became distressed and coped poorly with the trip.
She said she could not finish a movie, so they cancelled their Netflix subscription. She used to be interested in painting but has been unable to pursue her hobby. She has neglected her garden.
Diagnosis:
Ms Lekhin has been unwell for more than four years. The MA had diagnosed her with a ‘persistent depressive disorder with panic attacks.’ On examination today, she exhibits eight of nine symptoms consistent with a major depressive episode – she did not express recurrent thoughts of death. I would reformulate the diagnosis as a persistent depressive disorder with anxious distress and an ongoing major depressive episode.
Whole person impairment:
The appellant challenged three categories – self-care & personal hygiene, travel and concentration, persistence & pace.
Self-care & personal hygiene:
On days when she does not work, Ms Lekhin neglects hygiene and may require prompting. She leaves most of the housework to her partner, but she can prepare meals for the family, which she does weekly. She eats a poor-quality diet with a tendency to overeat, which has resulted in weight gain. She takes less exercise, having given up her gym membership, and she struggles to motivate herself to exercise.
On work days, Ms Lekhin cares for herself adequately, attending to her hygiene and her appearance. She presented well groomed at examination, with neat hair, wearing jewellery and having had her nails manicured and polished.
Overall, Ms Lekhin is capable of adequately caring for herself, although she sometimes neglects to do so. As determined by the MA, this is consistent with a Class 2 impairment.
Travel:
Ms Lekhin is independent with local travel to familiar areas. She can travel further afield, such as to the Blue Mountains, with her partner as support. As determined by the MA, this is consistent with a Class 2 impairment.
Concentration, persistence & pace:
Ms Lekhin describes subjective problems with concentration, attention and memory. She can no longer read more than one or two pages and can attend to a television show for only 15 or 20 minutes. She manages at work with a supportive employer. She described how she forgets colour formulas and avoids more complex tasks. Her employer allows her to take brief breaks if she loses focus. During my assessment, she gave a disorganised narrative and needed redirection and to have questions restated. She was imprecise with details. This is consistent with a Class 3 impairment, whereas the MA had determined a Class 2 rating.
PIRS ratings:
· Self-care & personal hygiene – Class 2
· Social & recreational activities – Class 3, as per the MAC
· Travel – Class 2
· Social functioning – Class 2, as per the MAC
· Concentration, persistence & pace – Class 3
· Employability – Class 3, as per the MAC
Ms Lekhin has an aggregate of 15, a median of 3, and a whole-person impairment of 15%.
The MA had adjusted by 1% for the effects of treatment, and this was unchallenged on appeal.
1. Findings on clinical examination
Mental state examination:
I assessed Ms Lekhin at home using a video link. The connection quality was adequate for a comprehensive assessment lasting over 50 minutes.
She presented as a well-groomed middle-aged woman with neat hair, earrings, and manicured nails.
She was depressed and anxious. Her affect was restricted, consistent with her mood and congruent with the interview content. She maintained her composure.
She gave a disorganised narrative. She often went off-topic and needed redirection or to have questions restated. She was imprecise with details.
She described dissociation and experiencing ‘seeing shadows.’
She did not express active thoughts of suicide.”
The Panel agrees with the comprehensive assessment of Medical Assessor Andrews.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 September 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: | W2068/23 |
Applicant: | Nataliya Lekhin |
Respondent: | Hairbiz International Pty Ltd |
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 Aman Suman 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 injury | 2 June 2020 (deemed) | Chapter 11 p.54-60 | Chapter 14 | 16% | N/A | 16% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0