Lewis v Torbole Pty Limited ATF Braithwaite Family
[2022] NSWPICMP 402
•14 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lewis v Torbole Pty Limited ATF Braithwaite Family [2022] NSWPICMP 402 |
| APPELLANT: | Heidi Lewis |
| RESPONDENT: | Torbole Pty Limited AFT Braithwaite Family Trust |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Dr Douglas Andrews |
| MEDICAL ASSESSOR: | Dr Nicholas Glozier |
DATE OF DECISION: | 14 October 2022 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; application of the Psychological Impairment Rating Scale in the categories of self-care and personal hygiene and concentration, persistence and pace; Appeal Panel concluded that the Medical Assessor (MA) did not err and it was open to the MA to assess the appellant worker as class 2 in these categories; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 May 2021 Heidi Lewis (the appellant/Ms Lewis) made an application to appeal against a medical assessment (the appeal) made by Dr Michael Hong, Medical Assessor (the MA) and issued on 20 June 2022.
The respondent to the appeal is Torbole Pty Limited AFT Braithwaite Family Trust (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments 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 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Lewis sustained a primary psychological injury in the course of her employment as a dental assistant with the respondent during the period 2012 to August 2019 when she was bullied and belittled by the principal dentist.
The matter was referred to the MA, Dr Michael Hong, on 16 February 2022 for assessment of whole person impairment (WPI) of Ms Lewis’ psychological disorder attributable to the injury deemed to have occurred on 27 August 2019.
The MA examined the appellant on 7 June 2022 and assessed 8% WPI in respect of the psychological disorder. The MA added 1% WPI for treatment uplift. Therefore, the total permanent impairment assessed was 9% WPI as a result of the injury deemed to have occurred on 27 August 2019.
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.
Ms Lewis requested that she be re-examined by a MA, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Lewis to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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.
The MAC
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.
The appellant’s submissions, include the following:
(a) The MAC was made on the basis of incorrect criteria and/or contains a demonstrable error for the following reasons:
(i) the MA failed to have regard to the medical and lay evidence before him that Ms Lewis was not capable of maintaining an independent lifestyle;
(ii) the MA failed to have regard to the lay and medical evidence before him that Ms Lewis was unable to read more than one or two pages at a time, is forgetful and experiences difficulty following complex instructions.
(b) The MA failed to have regard to whether Ms Lewis was capable of maintaining an independent lifestyle. The MA failed to have regard to the following medical and lay evidence:
(i) Ms Lewis required regular prompting to shower and brush her teeth [Application to Resolve a Dispute (ARD) 3, paragraph 28];
(ii) Ms Lewis would “usually end up taking [her son] to school in my pjyamas [sic], and we are many times late for school” [ARD 3, paragraph 27], and
(iii) Ms Lewis’ husband cooked all her meals and “sometimes I simply go without [eating] as I don’t have appetite” [ARD 3, paragraph 30].
(c) On page 6 of his report the MA commented: “she reported that she showers only every three to four days but would do it on her own accord without prompting.” There is no evidence before the MA that Ms Lewis was able to shower “of her own accord without prompting”. The MA did not record any history under the heading ‘Present Symptoms’ regarding frequency of showers. The only evidence before the MA was Ms Lewis’ statement (see paragraph 8 above) and the reports of Dr Bertucen, Dr Kumar and Dr Pollock.
(d) Dr Bertucen recorded: “[she] is indifferent with regard personal appearance and hygiene, brushing her teeth every day, however, she states that she may not necessarily have a shower and is often gently prompted by Troy…”. Dr Kumar recorded: “Ms Lewis says that she can take care of her personal hygiene, though her husband reminds her of it. She said she showers every 3rd day.”
(e) At paragraph 28 of her statement, Ms Lewis said: “I go through periods of skipping brushing my teeth and have to be reminded or hinted from my husband, and he has to say things like: ‘Are you going to have a shower’. Sometimes I can go up to 3-4 days without showering.”
(f) With regard to meal preparation, the MA took the following history: “Her husband does most of the cooking. She said she cooks less than once a week”.
(g) Dr Bertucen recorded in his report dated 26 October 2021: “She is very demotivated with regard to daily domestic chores including cooking, etc, leaving Troy to perform most tasks”. Dr Pollock recorded in his report dated 11 February 2020: “... she finds it difficult to initiate and complete tasks such as dinner for her children”.
(h) Dr Bertucen commented: “Ms Lewis would not be capable of maintaining an independent lifestyle at present due to her significant depression and anxiety symptoms”.
(i) Ms Lewis submitted that she was not able to look after herself adequately as she required prompting to shower and brush her teeth and showered only every three or four days. She submitted that she was not capable of maintaining an independent lifestyle and the MA erred in assessing class 2 for the category of self care and hygiene, when the totality of the evidence supports a finding of class 3.
(j) The MA failed to explain his reasoning process for disagreeing with Dr Bertucen’s assessment of class 3 for self care and personal hygiene.
(k) The MA failed to have regard to the lay and medical evidence before him that Ms Lewis was unable to read more than one or two pages at a time, was forgetful and experienced difficulty following complex instructions.
(l) The MA took a history: “She described being forgetful and distracted”. At [4]-[5] of the MAC, the MA recorded: “She is distracted and said that when she goes to the shopping centre, sometimes she cannot remember where she parked. She often sits outside and not [sic] do anything. …She said she has not really read any book in last two years”
(m) The MA did not address why Ms Lewis has not read a book and whether this was due to difficulty concentrating since her injury.
(n) The MA failed to consider the opinion of the treating psychologist opinion, Dr Wells who recorded in his report dated 16 December 2020: “Heidi is unable to manage complex problem solving or competing deadlines”. Dr Pollock in his report of 11 February 2020 wrote:
“She does not venture outside the house without the presence of another person… She finds it difficult to concentrate…she finds it difficult to initiate and complete tasks such as dinner for her children. She is constantly anxious, she has an easy startle, she finds it had to listen carefully to what other people are saying…”
Dr Kumar in his report dated 16 November 2021 recorded:
“Ms Lewis said that she struggles with communications such as email and even answering phones. She is forgetful and is unable to read more than 1 or 2 pages at a time. Dr Kumar further recorded “She had to stop taking new orders for her business as well”.
(o) Under the section Cognitive Assessment, the MA recorded that Ms Lewis had difficulty with ‘digit backwards’: “not able to reverse 3 digits correctly” and with ‘short-term recall’: “was able to recall 3 of the 5 items without prompting”. With regards functioning at work, the MA recorded:
“She said she would go to the wedding reception venue early when there is nobody there… she goes with her 24-year old daughter. It takes about one to one and a half hours to set up the grazing platter for the guests at the wedding”
(p) The above history indicated that Ms Lewis had significant difficulty concentrating to the extent that she forgets where she has parked, she is unable to read more than one or two pages at a time, attends work only for up to one and a half hours and only with her 24-year-old daughter, and has difficulty following complex instructions.
(q) The history above would support a finding of class 3 for concentration, persistence and pace. The MA failed to have regard to the totality of the medical evidence and in doing so erred in assessing class 2 for the category of concentration, persistence and pace.
(r) The MA failed to explain his reasoning process for disagreeing with both Dr Bertucen and Dr Kumar’s assessment of moderate for impairment for concentration, persistence and pace.
(s) The MAC involved application of incorrect criteria and/or demonstrable error for the reasons outlined above and should be revoked.
(t) Ms Lewis seeks to be re-examined by a member of the Appeal Panel or to have the matter determined by the Appeal Panel on the papers.
The respondent’s submissions include the following:
(a) In the MAC under “History relating to the injury”, the MA noted:
"She started a hobby business around March 2019 and reportedly this involved setting up grazing boards at weddings. She said she would purchase and put together products and deliver it for parties and weddings, and this might be cheese and fruit platter. She was doing five or six hours in a week."
The MA also noted: "The last time she studied was in January 2019 and she completed a food safety supervisor certificate so that she can do her hobby business."
(b) On page 5 of the MAC under “Findings on physical examination”, the MA noted:
"Ms Lewis was meticulously groomed and had long hair. She engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. She smiled and laughed briefly. She spoke spontaneously. She did not perseverate and there was no set-shifting difficulty. She demonstrated reasonable processing speed and pace."
(c) The MA addressed the reports of Dr Bertucen and Dr Kumar noting on page 6 of the MAC:
"Dr Bertucen rated Ms Lewis’ self-care and personal hygiene as 3 and noted she was indifferent to her appearance. She brushes her teeth everyday but may not have a shower and is gently prompted by her partner. She is very demotivated to domestic chores such as cooking. He does not believe she would be able to maintain independent self-care. My assessment is more consistent with Dr Kumar in that she reported that she showers only every three to four days but would do it on her own accord without prompting. She tends to skip meals and drink coffee instead but has been gaining weight. She described sufficient general self-management in her life. This is consistent with rating of 2."
(d) With respect to concentration, persistence and pace, on page 6 of the MAC the MA noted:
"Dr Kumar and Dr Bertucen both rated Ms Lewis’ concentration, persistence and pace as 3. Dr Bertucen wrote she cannot read beyond a few pages and frequently loses her personal affect and does not have any role in domestic finance or budgets, while Dr Kumar noted she is forgetful and cannot read more than one or two pages and stopped taking order for her business. In my assessment, she reported that she would upload photos and correspond with customers by e-mail, she would invoice them but does not know how long these tasks take. She said she has not really read any books in the last two years and attributed this to poor concentration. Alcohol no longer impacts on her concentration or memory. She can focus on setting up the grazing platter for 1 to 1.5 hours. Overall, my view is that her presentation on the day of assessment is consistent with 2."
(e) The comments of the MA with respect to some inconsistency in Ms Lewis’ presentation, particularly in the cognitive testing, when compared to her mental state examination, were indicative of a reduced effort. The MA commented that such inconsistencies were taken into account in his final analysis of impairment.
(f) The categories alleged by Ms Lewis to indicate a demonstrable error, were in fact addressed on several occasions by the MA in the MAC, including in his report of Ms Lewis’ history, symptoms and treatment to date, in his examination of Ms Lewis in person, and in his mental state examination of Ms Lewis’ cognitive ability.
(g) The MA provided his clinical reasoning for the difference of his opinion and assessment to that of Dr Kumar and Dr Bertucen with respect to Ms Lewis’ selfcare and personal hygiene, and concentration, persistence and pace.
(h) The points of evidence, on which Ms Lewis relied to indicate a demonstrable error, were included in the evidence before the MA, and were considered in his assessment and findings.
(i) Ms Lewis did not sufficiently demonstrate a demonstrable error in the MAC dated 20 June 2022, and that the MAC should stand and not be revoked.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
Under “Present symptoms”, the MA wrote:
“Ms Lewis’ anxiety symptoms are triggered by phone calls, crowded places and she said even when her son jumps to surprise her suddenly, she becomes anxious.
She reported having depressed mood.
She has reduced enjoyment and motivation.
She described being forgetful and distracted.
She is easily fatigued.
Suicidal ideation has ceased and there was no self-harm behaviour.
She was 58kg previously and now 68kg and continues to gain weight, and she said she does not know why.
She reported having sleep problems with initial insomnia and nightmares of the dentist yelling at her.
She has intrusive memories related to work and panic attacks.
She reported having a low tolerance for frustration without anger problems
She avoids social situations due to her anxieties”.
On page 4 of the MAC under “social activities/ADL”, the MA wrote:
“Ms Lewis is 45 years old, living with her husband who works at Bunnings Warehouse. She has four children and a stepson. The 14-year-old son lives at home and 21-year-old son lives at home only on the weekend.
She goes to the shops early in the morning when there are not many people there. She does some housework and washing, and her husband does most of the housework.
They take drives as a family. Sometimes her husband goes away to play sports.
In terms of holiday, she said around 12 months ago she went away with her husband as he was doing sailing. She could only recall one birthday party with the family in the past 12 months.
Her husband does most of the cooking. She said she cooks less than once a week.
Ms Lewis has not seen her mother for a couple of years due to COVID-19 restrictions, and then when her mother visited she noted that Ms Lewis became a bit aggressive. Her husband made similar comments. She said she feels like who she is has disappeared in the last couple of years.
She is distracted and said that when she goes to the shopping centre, sometimes she cannot remember where she parked.
She often sits outside and not do anything. She watches television, sometimes visits her daughter and the grandchildren.
She maintains regular contact with two local friends, she enjoys meeting up with them for coffee every Sunday afternoon. She said they always have to plan in advance and she cannot go last minute. She does not go to large social gathering or parties.
She said she has not really read any book in last two years”.
Under “Findings on physical examination” the MA wrote:
“Ms Lewis was assessed by videolink. She was alone at her solicitor’s office, and her daughter went with her to the appointment. 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 audiovisual recording of the assessment.
The assessment took 80 minutes. The video did not work properly initially and took some time to fix the problem.
Ms Lewis was meticulously groomed and had long hair. She engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. She smiled and laughed briefly.
She spoke spontaneously. She did not perseverate and there was no set-shifting difficulty. She demonstrated reasonable processing speed and pace.
At the end of the assessment, I asked Ms Lewis for additional information that she thought may be relevant and she said she has lost a piece of herself and she is not who she was.
Cognitive Assessment
Registration:
Ms Lewis mentally registered 5 unrelated words on the second attempt.
Short-term recall:
She was able to recall 3 of the 5 items without prompting, after a period of time and a shift in mental task.
MOYB:
She was able to mentally reverse the 12 months of the year without impairment in her concentration.
Verbal Fluency:
Ms Lewis was able to generate 5 words starting with the letter P of the alphabet within 60 seconds, and this is much slower than her verbal fluency and generativity during the assessment.
Digit forwards:
She recalled 5 digits correctly.
Digit backwards:
I noted she was not able to reverse 3 digits correctly”.
On page 4 of the MAC, under “summary” the MA made a diagnosis of post-traumatic stress disorder and noted that there had been a period of alcohol use disorder. The MA noted under “consistency of presentation”:
“There were some inconsistencies on cognitive testing compared to mental state examination, with areas of reduced effort and she does have impaired concentration, and these are taken into account in my final analysis of her impairment”.
In commenting on other medical opinion, the MA wrote:‘Ms Lewis discussed her functioning according to the PIRS category and noted she continues a hobby business which she enjoyed. She said she has poor concentration, frequently falling over, forgetting what she was doing. She struggled to pull information off her mind and has difficulty recalling her children’s ages, doctors’ names. Her family helps with the orders in the small business. Without them, she will not be able to fulfil orders. Ms Lewis noted Dr Kumar who suggested she could work 20 hours per week, and this makes her very panicky.’
Dr Jeff Bertucen IME psychiatrist, IME qualified by the claimant’s representative, reported on 14 December 2020. He noted her work history and also previous domestic history. He advised her diagnosis is not straightforward. Whilst it could be described as an adjustment disorder, his view is that she suffered chronic complex PTSD, primarily as a result of earlier violent relation and advised he is not convinced her employment had been the main contributing factor to her injury. He went on to state that her injury had resulted in aggravation of her pre-existing, largely sub-threshold PTSD, despite the fact her premorbid function before 2012 was at high level and she did not have any treatment, the dentist appeared to have triggered her traumatising distressing memory and this would not have occurred had she not been exposed to earlier trauma before employment. He advised she did not have permanent impairment at that point.
Dr Bertucen, 26 October 2021 noted after his last assessment, she made consistent effort and reduced alcohol intake and now drinks several ciders every two or three weeks. At this point, he advised that Ms Lewis suffered chronic PTSD and now reached MMI. He provided WPI with rating of 19%, allowing one-tenth deduction for her pre-existing condition.
Dr Mukesh Kumar, IME psychiatrist provided a report dated 16 November 2021 recorded Ms Lewis said she can take care of her personal hygiene, although her husband reminded her of it, she would shower every three days and managed to look after herself adequately. Her older children ring her for coffee, and she can go out with them. She has gone out with some friends, maybe three times this year. She drives in the local area. Her husband does most of the shopping. She has a good elation with her husband and children. She struggles with her concentration, even with things like e-mail, she has not been able to read more than one or two pages at a time. She was no longer drinking alcohol. She was drinking a bottle of wine a day and stopped five months ago. He diagnosed PTSD, major depressive disorder, alcohol use disorder and noted at that point she was not on any psychiatric medication, having stopped everything. He provided WPI 13% and advised she had no pre-existing impairment.
GP record. 27 August 2019, noted no past mental health issue but prior experience of intermittent partner violence which had led to her fleeing from her partner at age 23 with three children. On 1 October 2019, resigned from work due to severe anxiety, mental breakdown. Valium was given. No ongoing issue from previous abusive relation. On 13 January 2020, attempted to join voluntary work to help bushfire but this caused a flare-up of her anxiety”.
Discussion
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
PIRS categories
The appellant alleged error in respect of the assessment of the PIRS categories of self-care and personal hygiene and concentration and pace.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J was concerned a case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘.. the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.”
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
Self care and personal hygiene
Ms Lewis submitted that the MA failed to have regard to the medical and lay evidence before him that Ms Lewis was not capable of maintaining an independent lifestyle and erred by rating the Ms Lewis as class 2 in the categories of self care and personal hygiene when the totality of the evidence supported a class 3. Ms Lewis argued that the MA failed to have regard to medical and lay evidence concerning her requiring regular prompting to shower and brush her teeth, her usually taking her sons to school in her pyjamas and being late for school and having her husband cooks all her meals with her sometime going without eating as she didn’t have appetite.
The examples under Table 11. 1 for “self care and personal hygiene” in the Guidelines are:
“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.”
The examples for class 3 are:
“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.”.
The MA assessed Ms Lewis as class 2 for self care and personal hygiene. In the PIRS Rating Form, the MA wrote:
“Self-care and personal hygiene - Class 2
Ms Lewis reported neglecting her self-care. She said she does not shower or eat regularly, and would attend to her self-care and personal hygiene when needed. She cooks less than once a week. She is capable of independent living without regular support.”
On page 6 of the MAC the MA wrote:
“Dr Bertucen rated Ms Lewis’ self-care and personal hygiene as 3 and noted she was indifferent to her appearance. She brushes her teeth everyday but may not have a shower and is gently prompted by her partner. She is very demotivated to domestic chores such as cooking. He does not believe she would be able to maintain independent self-care. My assessment is more consistent with Dr Kumar in that she reported that she showers only every three to four days but would do it on her own accord without prompting. She tends to skip meals and drink coffee instead, but has been gaining weight. She described sufficient general self-management in her life. This is consistent with rating of 2”.
Ms Lewis in her statement dated 24 January 2022 wrote:
“Selfcare and personal hygiene
27. I try to rise with a regular alarm for my son Xavier to catch the bus for school. Very rarely does he catch it as I sleep through alarm / or can't seem to motivate to get out of bed. I usually end up taking him to school in my pyjamas, and we are many times late for school.
28. I go through periods of skipping brushing my teeth and have to be reminded or hinted from my husband, and he has to say things like: 'Are you going to have a shower'. Sometimes I can go up to 3-4 days without showering.
29. Regarding my diet, I don't generally eat much, but I seem to be putting on excess weight, going from a stable 58kgs approx. to now close to 70kg. I have been told this is most likely from stress hormones, as I feel bloated in my face and all over body.
30. My husband cooks all meals for me and my son when he gets home from work, and sometimes I simply go without as I don't have appetite.
31. My husband will also come home to do washing, organize my son to take him to his sports.
32. I do feel my alcohol intake is reduced but I find myself searching for it at times when I feel like I need to switch off”.
Dr Bertucen, in his report dated 26 October 2021, assessed class 3 for self care and personal hygiene. He noted:
“Ms Lewis rises at a regular hour (via an alarm) to drop her son at school, however, is indifferent with regard to personal appearance and hygiene, brushing her teeth every day; however, she states that she may not necessarily have a shower and is often gently prompted by Troy. She is very demotivated with regard to daily domestic chores including cooking, etc., leaving Troy to perform most domestic tasks. Diet has improved slightly since the last interview (as well as reduced alcohol intake); however, she is still too anxious to take any external exercise. In my view, Ms Lewis would not be capable of maintaining an independent lifestyle at present due to her significant depression and anxiety symptoms>”
Dr Kumar, in his report dated 16 November 2021, assessed class 2 for self care and personal hygiene. Under the heading “self care and personal hygiene” he wrote:
“Ms Lewis says that she can take care of her personal hygiene, though her husband reminds her of it. She said she showers every 3rd day. She is still able to manage to look after herself adequately”.
Dr Kumar noted under PIRS category for self care and personal hygiene:
“Mild Impairment: Ms Lewis is capable of taking care of her personal hygiene and self. Though her husband has to remind her, overall, the impairment is not to the level that she requires significant supports for basic tasks”.
Dr Pollock recorded in his report dated 11 February 2020: “... she finds it difficult to initiate and complete tasks such as dinner for her children”.
The MA noted that Ms Lewis neglected her self care, but would attend to her self-care and personal hygiene when needed. However, the MA noted that Ms Lewis was meticulously groomed at the assessment. The MA noted that she cooked less than once a week. He concluded that she was capable of independent living without regular support. The history taken by Dr Bertucen was recorded in October 2021, that is, more than eight months before the examination by the MA. The history obtained by Dr McDonald was taken in August 2021 some nine months before the assessment by the MA. Dr Kumar had assessed class 2 for self-care and personal hygiene. The MA noted that Ms Lewis drove her children to school, did household shopping and some housework and washing and cooked less that once a week. The Appeal Panel noted that these were all activities associated with running a household. The MA recorded that she can prepare food for significant numbers of people at times. The MA also recorded a history of the worker having addressed her alcohol intake in the past six to eight months, indicative of improvement in this aspect of self-care since seeing Dr Bertucen (who also recorded in October 2021 she had made “dietary modifications” to address her weight gain.)
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the MA on the evidence to make an assessment of class 2 for self care and personal hygiene. The Appeal Panel was satisfied that the rating of class 2 for self care and personal hygiene was not in error.
The Appeal Panel noted that Ms Lewis submitted that the MA failed to explain his reasoning process for disagreeing with Dr Bertucen’s assessment of class 3 for self care and personal hygiene. The Appeal Panel considered that the MA specifically provided adequate reasons for disagreeing with the assessment of class 3 for self care and personal hygiene by Dr Bertucen, and agreeing with the assessment of Dr Kumar, on page 6 of the MAC.
Concentration, persistence and pace
Ms Lewis submitted that the MA made a demonstrable error in the assessment of class 2 for concentration, persistence and pace in failing to have regard to the lay and medical evidence before him of Ms Lewis being unable to read more than one or two pages at a time, being forgetful and experiencing difficulty following complex instructions. Ms Lewis argued that the totality of the evidence supported a class 3 for concentration, persistence and pace.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are:
“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”.
The examples for class 3 are:
“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.”
In the PIRS Rating Form, the MA assessed the appellant as class 2 for concentration, persistence and pace, and under “Reason for decision” wrote:
“Ms Lewis described having poor concentration. She can focus on setting up grazing platter for 1 to 1.5 hours. Her daughter helps and this is predominately done by her. She can arrange the food well and wedding guests would take photo with her products. Her mental state examination is consistent with 2.”
On page 6 of the MAC the MA noted:
“Dr Kumar and Dr Bertucen both rated Ms Lewis’ concentration, persistence and pace as 3. Dr Bertucen wrote she cannot read beyond a few pages and frequently loses her personal affect and does not have any role in domestic finance or budgets, while Dr Kumar noted she is forgetful and cannot read more than one or two pages and stopped taking order for her business. In my assessment, she reported that she would upload photos and correspond with customers by e-mail, she would invoice them but does not know how long these tasks take. She said she has not really read any books in the last two years and attributed this to poor concentration. Alcohol no longer impacts on her concentration or memory. She can focus on setting up the grazing platter for 1 to 1.5 hours. Overall, my view is that her presentation on the day of assessment is consistent with 2”.
Under “Social activities/ADL”, the MA noted:
“She is distracted and said that when she goes to the shopping centre, sometimes she cannot remember where she parked.
She often sits outside and not do anything. She watches television, sometimes visits her daughter and the grandchildren”.
In her statement dated 21 January 2022, Ms Lewis wrote:
“50. I am frequently falling over, running into walls, forgetting what I was doing. I struggle sleeping from 3-4 nights per week being woken up by nightmares or waking up breathing fast in panic attacks, causing tiredness and lack of concentration the following day.
51. I feel like my mind is busy but I struggle to pull information out. It's like its blank at the same time. Examples of this are recalling my children's ages, Dr's names, generally recalling information without having it written in front of me or stuck to a wall. When I am reading I can only get through 1-2 pages and don't retain any information.
52. My family help me atrn (sic) with all my orders in my small business/hobby. I have huge anxiety about this as without them I wouldn't be able to fulfil orders as they come with me and help direct me and calm me from getting overwhelmed”.
In his report dated 26 October 2021, Dr Bertucen rated the appellant as class 3 for concentration, persistence and pace providing the following reasons:
“Moderate impairment of concentration and memory, is unable to pursue reading beyond a few pages, frequently loses personal effects through the day and does not have any role in domestic finances or budgets.”
In a report dated 16 November 2021, Dr Kumar rated Ms Lewis as class 3 for CPPP. He noted under “concentration”: “This is reported as ‘not good’. Ms Lewis said that she struggles with communications such as email and even answering phones. She is forgetful and is unable to read more than 1 or 2 pages at a time”.
Dr Kumar under “PIRS Category” for Concentration, Persistence and Pace wrote: “Moderate impairment: persistence and Ms Lewis is forgetful and is unable to pace read more than 1 or 2 pages at a time. She had to stop taking new orders for her business as well.”
Ms Wells, in her report dated 16 December 2020, reported: “Heidi is unable to manage complex problem solving or competing deadlines”.
Dr Pollock, in his report of 11 February 2020, wrote:
“She does not venture outside the house without the presence of another person… She finds it difficult to concentrate…she finds it difficult to initiate and complete tasks such as dinner for her children. She is constantly anxious, she has an easy startle, she finds it had to listen carefully to what other people are saying…”
The Appeal Panel considered that examination findings and history obtained by the MA at the assessment indicated at most a mild impairment of Ms Lewis’ mental health. As noted by the MA in his assessment “she did not perseverate and there was no set-shifting difficulty. She demonstrated reasonable processing speed and pace”. There was some minor impairment of cognitive function is some categories but not in several other categories. The MA found some inconsistencies on cognitive testing compared to mental state examination and her overall cognitive function in the assessment, with areas of reduced effort on testing. He found that Ms Lewis did have impaired concentration which he explicitly included in his final rating. Of the PIRS categories, that of concentration, persistence and pace is one where the MA is most able to make a clinical assessment of impairment on the day and compare that assessment to what is subjectively reported.
The Appeal Panel noted that Ms Lewis said she had stopped drinking alcohol for six to eight months. The MA reported that alcohol no longer impacted on her concentration or memory, indicating that it was a significant factor in causing impairment in the category of concentration, persistence and pace, when rated some time earlier by others.
While Ms Lewis said that she had not read a book for two years, she was able to focus during the assessment for over one hour. The MA also noted that she could focus on setting up the grazing platter that formed part of her business activities for 1 to 1.5 hours.
The Appeal Panel was satisfied that there had been some improvement in Ms Lewis’ overall symptoms and function since the assessments by Dr Bertucen and Dr Kumar. Both Dr Bertucen and Dr Kumar reported that Ms Lewis had stopped taking order for her business when they assessed her in late 2021, yet the MA noted that Ms Lewis was working about three hours a fortnight in recent times in her hobby business which indicated that there had been some overall improvement since late 2021.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the MA on the evidence to make an assessment of class 2 for concentration, persistence and pace. The Appeal Panel considered that the history obtained by the MA, the findings on examination and presentation on the day of the assessment were consistent with a class 2 rating for concentration, persistence and pace.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of self care and personal hygiene and concentration, persistence and pace.
In conclusion, the Appeal Panel did not consider that there was a demonstrable error in the assessment of the MA. The Appeal Panel was satisfied that the assessment was not made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 June 2022 by the MA should be confirmed.
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