Lifestyle Solutions (Aust) Ltd v Van den Berg
[2021] NSWPICMP 184
•29 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lifestyle Solutions (Aust) Ltd v Van den Berg [2021] NSWPICMP 184 |
| APPELLANT: | Lifestyle Solutions (Aust) Ltd |
| RESPONDENT: | Manja Van den Berg |
| APPEAL PANEL: | Member John Wynyard Dr Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 29 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of 17% for psychiatric whole person impairment (WPI); whether Medical Assessor (MA) had erred in failing to give reasons for ignoring statements from several sources that contradicted the account the worker gave regarding her self- care; whether the MA had erred in failing to explain the basis of his assessment of employability; Held - MA did not disclose his path of reasoning in either category; discrepancies of such moment that explanation required in the self-care category; insufficient reasons given concerning employability, which mentioned only that the worker had been out of the work force for years; re-examination conducted; Medical Assessment Certificate revoked and a finding of 7% WPI substituted. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 May 2021 Lifestyle Solutions (Aust) Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 April 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is a reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 7 January 2021 Consent Orders were made whereby this matter was referred on 13 January 2021 to the MA for an assessment of WPI caused by psychological injury on a deemed date of 13 September 2017.
Ms Van den Berg was employed as a Community Support Worker. She commenced on
6 March 2012 and found that by June 2014 she became the focus of ongoing bullying and harassment. There were vexatious complaints and disciplinary hearings about her performance and she was bullied and harassed in various ways by her work colleagues including the fabrication of complaints. She approached the Employment Assistance Programme but found that her condition deteriorated and she was medically retired prior to the assessment by the MA.The MA assessed a 17% WPI.
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.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because adequate reasons were not given by the MA.
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.
Further medical examination
Dr Michael Hong of the Appeal Panel conducted an examination of the worker on 3 August 2021 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which 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 Application to Resolve a Dispute
The worker brought two actions in her Application to Resolve a Dispute (ARD). The first claimed that she suffered an injury to her lumbar spine on 14 April 2014 when she fell whilst assisting a client to shower.[1] The second action was the present action for lump sum compensation regarding her psychological injury.
[1] Appeal papers page 74
No claim was made for lump sum regarding the alleged back injury, but Ms Van den Berg also sought payment of weekly compensation. On 7 January 2021 the Consent Orders remitting this matter for referral to an MA included an Order remitting the matter back to the Commission for determination of the weekly payments claim.
In the present appeal, the appellant employer submitted that the MA had fallen into error in his assessment under the Psychiatric Impairment Rating Scale (PIRS) of the categories of Self-care and Personal Hygiene, and Employability.
The Psychiatric Impairment Rating Scale
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[2] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[2] Guides 55
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[3].
[3] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[4] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the MA 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’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the [MA] was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[5]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[4] [2017] NSWSC 887 (Ferguson)
[5] [2015] NSWSC 633 (Jenkins)
In Glenn William Parker v Select Civil Pty Ltd,[6] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [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. (Ferguson [24])…..”
[6] [2018] NSWSC 140 (Parker)
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the [MA] to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
Accordingly relevant matters for the Panel to consider when an assessment is said to be erroneous are (to use the reference by Campbell J in Ferguson):
(a) whether the categorisation was glaringly improbable;
(b) whether it could be demonstrated that the MA was unaware of significant factual matters;
(c) whether a clear misunderstanding could be demonstrated, or
(d) whether an unsupportable reasoning process could be made out.
Self care and personal hygiene
The MAC
The MA was generally aware of Ms Van den Berg orthopaedic disabilities. He said, relevantly:[7]
“● Details of any previous or subsequent accidents, injuries or condition:
….In about 2013 she sustained a back injury whilst trying to shower a disabled client. … She had also received surgical treatment for arthritis in both her knees by means of bilateral knee replacement. She reported difficulties with her spine. …
General health:
…. She suffered from Osteoarthritis of both knees in 2012 followed by bilateral knee replacements in 2017. She was also suffering from Osteoarthritis of both Ankles, Spinal canal stenosis, Cervical Osteo Arthritis and an Endplate fracture L2 lumbar spine after 2014. She had been treated by her orthopaedic team and local medical team. ….”[7] Appeal papers page 47
The MA noted Ms Van den Berg’s physical injuries, saying:[8]
“Ms Van den Berg was also treated for painful orthopaedic conditions that affected her knees and her back. Physical conditions and the associated pain are not assessed as part of the ….PIRS assessment, in accordance with current guidelines.”
[8] Appeal papers page 51
At paragraph 11c the MA also referred to the physical injuries. He said:
“Ms Van den Berg had physical injuries to her back and orthopaedic treatment to her knees. She had associated pain in relation to these physical conditions. I have not used to the PIRS to assess these physical conditions, in compliance with current guidelines.”
In discussing Ms Van den Berg’s social activities and activities of daily living, the MA took the following history:[9]
“Ms Van den Berg was reliant on her daughter to provide her with the necessary prompting and assistance to remain in her home. Her daughter would attend the house most days each week. Her daughter would assist with cleaning, vacuuming, laundry and her nutrition. Ms Van den Berg was reliant on her daughter to prompt her to shower. Ms Van den Berg was not able to live independently at the time of this assessment.”
[9] Appeal papers page 48
The MA repeated this history in assigning a class 3 value in the category[10]. He also noted when dealing with her social activities and activities of daily living:
“Ms Van den Berg reported her relationship with her daughter was strained. She reported that she felt shame and guilt for relying on her daughter’s goodwill. She reported that her son would call her most weeks. She did not call any of her children for assistance. She had lost all her friendship circle. She would talk to her aged parents on occasion.”
[10] Appeal papers page 62
The MA found Ms Van den Berg’s presentation to be consistent, saying:[11]
“Ms Van Den Berg’s presentation was consistent with her diagnosed condition. Her assessable psychiatric symptoms had not entered remission at any time, from the date of onset of this work-related injury to the date of this assessment.”
[11] Appeal papers page 49
The MA, when asked in the templated question for his comments “regarding the other medical opinions and findings submitted by the parties,”[12] also reproduced selections from Ms Van den Berg’s statements of 9 November 2020 and 6 December 2017.
[12] Appeal papers page 52
Evidence before the MA
Ms Van den Berg retained the services of Associate Professor (A/Prof) Michael Robertson, Consultant Psychiatrist, as her medico-legal expert. In his report of 15 November 2019 A/Prof Robertson noted:[13]
“Ms Van den Berg reported the following of her day-to-day functioning:
Self-Care: She frequently skips showers and will often not bathe for up to four to five days at a time. She consumes a poor diet and has gained weight, stating that she simply " can't be bothered to cook".
[13] Appeal papers page 132
With regard to her back injury, Ms Van den Berg retained Professor Y.A.E. Ghabrial, Orthopaedic Surgeon, as her medico-legal expert. Professor Ghabrial reported on 28 September 2020. He found that Ms Van den Berg had sustained a fracture of the superior endplate of her L 2 vertebra and that a degenerative L 4 spondylolisthesis with spinal stenosis had been “markedly aggravated” by her fall of 14 April 2014. Ms Van den Berg also had a right L 5 residual radiculopathy which had not settled down. Dr Ghabrial said:[14]
“She remains unfit for activities involving lifting, bending and twisting as well as sitting or standing for more than 20 minutes at a time regarding her back problem.”
[14] Appeal papers page 163
Ms Van den Berg was also assessed by Dr Chris Harrington, Orthopaedic Surgeon, on behalf of the employer. On 30 September 2020 Dr Harrington thought that Ms Van den Berg had suffered an aggravation of spondylitic changes at L4/5 and L5/S1, noting that her condition had deteriorated in the last 12 months due to extensive changes in the lower lumbar levels and significant weight gain. When considering her current status,
Dr Harrington reported:[15]“[Ms Van Den Berg] used to mow her own lawn but now requires paid assistance. She also has fortnightly domestic assistance but does the light housework at her own pace. She does her groceries but prefers to lean on the trolley rather than walking unaided. She is unable to take her dogs for a walk because of back pain, rather than trouble with her knees. She doesn’t carry a walking stick….”
[15] Appeal papers page 322
An Earning Capacity Assessment was obtained by the appellant employer dated
2 November 2020.[16] The author was Mr Richard Erber, Rehabilitation Counsellor, from Compensation Assistance Services. At page 2, Mr Erber recorded in his Executive Summary that Ms Van den Berg was a “good historian” who was oriented to time and place, her responses being appropriate to the context of the conversation. He said:“Ms Van den Berg described having the following daily routine. She wakes up between 530 and 8:30 AM. She will feed her dogs and let them outside. She has breakfast. She said that she “potters” and tidies up the house washing up and doing a load of washing. She said that she has a contractor who cleans once per fortnight and someone who does the lawns and gardens once a month. She said that she cooks her meals most days. During the day she spent some time checking her emails, reading and watching Netflix. She said she goes to bed by 8:30 PM.
Ms Van den Berg is independent in her self-care tasks. She engages in a moderate level of household tasks, indicating that she cooked daily, washes up and also washes her clothes. She said that she enjoys gardening (some tasks), reading and spending time with her dogs. She said that since her injuries she has stopped playing tennis.”
[16] Appeal papers page 826
The appellant employer retained Dr Graham Vickery, Consultant Psychiatrist, as its medico-legal expert. Dr Vickery reported on 18 March 2020, and noted the following:[17]
“Ms Van den Berg spends time on the computer playing solitaire or she does “browse shopping” online. There has been some loss of motivation with the housework and the garden. There is the “loss of joy in cooking for one” and she now makes basic meals.”
[17] Appeal papers page 150
Dr Vickery noted that Ms Van den Berg was able to drive to her daughters’ place, which took 40 minutes. He said:[18]
“Ms Van den Berg is close to her four children. Her daughter visits every month or two and there is phone contact….”
[18] Ibid.
Ms Van den Berg made two statements dated 6 December 2017 and 9 November 2020.[19] She said in her first statement that she had no motivation to do things around the house and that having a shower was an effort. She said:[20]
“… I am very house proud but can’t find the energy to clean, so I have had to pay people to come in. I only speak really to my daughter, who lives in Maitland…
… Since I have been off work, other than caring for my granddaughter, I have just stayed at home.I haven’t been able to clean look after myself as I have no motivation. I enjoyed going to bingo once per week but at the moment I just feel like I can’t be bothered stop the same goes for working in my garden.”
[19] Appeal papers pages 102 and 78 respectively
[20] Appeal papers from page 123
In her statement of 9 November 2020 Ms Van den Berg stated:[21]
[21] Appeal papers page 22
“269. I will normally get up at 8.30 am. I will feed the dogs and the myself and will start cleaning and vacuuming the house and will start jobs but not finish them.
270. For a period I had rented out one of the rooms on the higher level of my house but found it too difficult to have strangers in my house and I found it too hard living with someone else and their living habits.
271. I prefer to live alone and do not particularly like interacting with other people.
272. During the day I do not take the dogs for a walk but will let them outside in the back garden with me when I go out for a smoke.
273. For my meals I will cook something easy and uncomplicated.
274. For lunch I will have a sandwich and usually only have 2 meals per day.
275. I sometimes only have toast for dinner.
276. I have a late breakfast and a late lunch.
277. I mainly live on coffee.
278. …...
280. My life has been like this since September 2017.
…
283. Because of my back injury I cannot perform any duties which require constant bending, twisting, lifting or standing or sitting for lengthy periods of time.
284. I cannot drive long distances and repeatedly getting in and out of cars aggravates my back condition.”
Submissions
The Appellant Employer
The appellant employer submitted firstly that, had the worker’s daughter in fact been required to assist her with her self-care and hygiene, the MA had fallen into error by not considering whether the restrictions caused by the worker’s orthopaedic injury also contributed to the severity of the behavioural consequences applicable to this category.
Notwithstanding that the orthopaedic issue had yet to be decided by the Commission, the evidence before the MA regarding the worker’s restrictions arising from her orthopaedic disabilities ought to have at least been considered by the MA in reaching his decision. It was submitted that the MA ought to have questioned the worker about the degree of assistance that had been caused by the orthopaedic injuries.
Secondly, the appellant employer contended that the worker’s allegation that her daughter attended the house most days each week to assist with her self-care and hygiene was inconsistent with the evidence that was before the MA - including the worker’s own statement.
The appellant employer referred to the statements by the worker, and those attributed to her in the various histories she gave regarding self-care. It submitted that the inconsistencies were of such moment that the MA had fallen into error in failing to at least address them.
We were referred to Chapter 1.36 of the Guides, which the appellant employer submitted was relevant. Its application therefore should accordingly have resulted in an adjustment.
The appellant employer submitted that the MA had simply accepted the worker’s statements at face value. Therefore, it argued, his failure to address the apparent irregularities constituted a failure to give adequate reasons. The appellant employer noted that the MA summarised practically every document before him over five pages of the MAC, but failed to include the report of Mr Erber in his Earning Capacity Assessment. That assessment, it was submitted, was of particular relevance to this category.
Ms Van den Berg
Mr Peter Brown on behalf of the respondent, submitted that the Panel should give very little weight to the opinion of Dr Vickery. We concur. Dr Vickery’s opinion was that Ms Van den Berg had not suffered a work related psychiatric injury, and as Mr Brown rightly points out, the appellant employer has conceded that point. However, we apprehend that the appellant employer was relying on matters of history taken by Dr Vickery, rather than his final opinion.
It was then submitted that the appellant employer’s submission regarding the effect of the worker’s physical injuries on her self-care and hygiene, and the failure by the MA to consider it, was “misplaced.” We were referred to the comments by the MA which we have reproduced above in which he stated that he had not used the PIRS to assess Ms Van den Berg’s physical conditions.
The MA had accordingly and appropriately assessed only the consequences of the psychological injury, and had not incorporated the “matters relating to the physical injuries”.
As to the allegation of inconsistent presentation, we were referred to the dates of the reports relied on, although no submission was made as to the relevance of such reference.
The ECA report was not relevant, it was submitted. In any event, Mr Erber failed to explain why he did not accept the opinion of A/Prof Robertson and preferred that of Dr Vickery. It was submitted that the MA did not accept Dr Vickery’s opinion, and that he was “entitled to make his own assessment” as to the appropriate class.
Mr Brown submitted that the appellant employer did not “point to any inconsistency in
Ms Van den Berg’s presentation to any of the medical practitioners involved”.
Employability
The MAC
The MA assessed a class 5 value for the behavioural consequences of Ms Van den Berg’s disorder in this category. He said:[22]
“Ms Van den Berg had no work capacity for any employment, due to the severity of her assessable work-related psychological symptoms alone. She had been medically retired from the workforce, prior to this assessment. She was totally impaired at the time of this assessment.”
[22] Appeal papers page 63
In considering the other expert opinions, only Dr Vickery’s opinion was considered as to this category. Dr Vickery was of the view that Ms Van den Berg had been fit since he ceased work. The MA said:[23]
“I do not concur with this statement as documented. I note that the statement documented by Dr Vickery is inconsistent with other authors reports.”
[23] Appeal papers page 57
Dr Vickery also noted that there was a pre-existing condition which was being treated at the time of the workers injury and which was contributing to her incapacity. Dr Vickery then said that there was no work-related incapacity for work. The MA said:[24]
“I do not concur with this statement as documented by Dr Vickery.”
Submissions
The appellant employer
[24] Ibid
The appellant employer, whilst noting that the worker has been out of the workforce for a number of years, did not accept that a Class 5 rating was automatically assessable. No substantial reasons had been given by the MA to explain his assessment, and he had not referred to any objective evidence in that regard.
The MA’s classification, the appellant employer contended, was particularly complicated because the question of the worker’s earning capacity was in dispute regarding both her psychological and physical claims, which had yet to be determined within the Commission. The appellant employer noted that rehabilitation services had been unable to find suitable duties, but the evidence showed that that was largely due to her physical injuries, in particular her bilateral knee replacements from 2017.
We were referred to the ECA report of Mr Erber, whose recommendations were made largely from a physical perspective. The MA had failed to consider the issue of the cause of the worker’s economic incapacity and separate the physical from the psychological, the appellant employer submitted. The issues were clearly complex in view of the overlapping causative evidence. The failure to explain the basis of the MA’s decision was also a demonstrable error.
Moreover, the Class 5 rating did not accord with the evidence before the MA, it was alleged. Dr Vickery estimated a capacity to do suitable duties at least, and thus assessed a Class 3 value; A/Prof Robertson noted Ms Van den Berg’s self-assessment that she could return to work at least on a voluntary basis and awarded a Class 4.
Further, whilst the MA summarised the opinions of both medico-legal experts over three pages of the MAC, he did not explain why his assessment differed from those before him, contenting himself to say that he did not agree with Dr Vickery’s view.
Ms Van den Berg
Mr Brown emphasised that the MA had made it clear that his assessment in this category was related to the workers psychological symptoms only. It was submitted that the reasons given by the MA did not have to be substantial, and we were taken to various parts of the MAC in furtherance of the submission that the explanation by the MA was adequate.
It was emphasised that the MA had indeed differentiated between the impairment caused by the psychological injury and that caused by the physical injury. Mr Brown submitted that the MA was not required to give any explanation for his assessment regarding the psychological injury and then explain how the physical injury had impacted on the workers’ employability.
Mr Brown submitted that by setting out the workers statement on pages 8 to 11 of the MAC, the MA had recited those matters in her evidence that he had considered.
In the circumstances, the worker submitted that the MA had given adequate reasons.
Discussion
Self care and personal hygiene
Table 11.1 of the Guides provide the examples for assessing the appropriate class of severity:[25]
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population.
Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4 Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5 Totally impaired: Needs assistance with basic functions, such as feeding and toileting.”
[25] Guides page 56.
The MA would appear to have based his Class 3 assessment on an assumption that
Ms Van den Berg was visited by her daughter “most days per week” and that her daughter prompted her to shower, and would assist with cleaning, vacuuming, laundry and nutrition.The appellant employer argued that the MA had erred by failing to distinguish between the restrictions caused by the worker’s physical condition, and those caused by her psychiatric condition. It is evident that the MA did not consider the detail of the restrictions caused by the workers physical condition, but dealt with the issue by observing that the “current guidelines” provided that physical conditions and the associated pain were not assessed as part of the PIRS assessment. The MA did not identify which part of the current guidelines he was referring to. It is axiomatic that a worker’s orthopaedic injuries could not be assessed by a MA who specialty was psychiatry, and Chapter 1.19 of the Guides provides that:
“Where applicable, impairments arising from … psychiatric injuries are to be assessed separately from the degree of impairment that results from any physical injuries arising out of the same incident.”
The appellant employer’s contention was that there was evidence before the MA regarding the worker’s ability to care for herself and perform her everyday hygiene which the MA did not appear to consider. The issue of how the worker looked after herself had some common application to both types of injury, and there was evidence before the MA that was inconsistent with his findings of fact. Chapter 1.19 does not absolve him from considering evidence that was relevant to his task.
We note that on 15 November 2019 A/Prof Robertson allocated a class 3 value to this category, in keeping with the MA, but that A/Prof Robertson did not record any reliance whatsoever on the worker’s daughter, whom he did not mention.
In March 2020 Dr Vickery recorded that the worker had lost some motivation to do housework and garden work, and that she now made basic meals. There was no mention made of any assistance being provided by her daughter.
Dr Harrington, Orthopaedic Surgeon, recorded on 30 September 2020 that the worker was receiving fortnightly domestic assistance, by which we infer that the assistance was of a paid nature and not provided by the worker’s daughter. There was certainly no mention made of her.
Mr Erber took a detailed account of Ms Van den Berg’s daily routine in his report of
2 November 2020. He also reported on an aspect of her routine which he described as “self-care.” There was a considerable cross-over between the history he took, and the evidence required for a valuation of the impact of the psychological injury regarding self-care and personal hygiene. Mr Erber noted that the worker was “independent in her self-care tasks”. He gave examples which included that the worker cooked daily, washed up and washed her own clothes. She also enjoyed some gardening. Again, there was no mention of the workers daughter.
We assume that the purpose of Mr Brown’s reference to the dates of the various reports relied on by the appellant employer was to suggest that, obviously, they could only identify the restrictions the worker was experiencing on those particular dates, and that, impliedly, the heavy reliance on the worker’s daughter had been a recent development since the last report of 2 November 2020.
If that had been the basis upon which the reference to those dates was made, it would follow that Ms Van den Berg had suffered a diminution in her ability to look after herself of some magnitude. As can be seen from the examples given for Class 3 that, relevantly, a family member would or should visit 2 - 3 times per week to ensure a minimum level of hygiene and nutrition. There was no evidence of such visits prior to the worker’s attendance on the MA on 17 March 2021.
There is a presumption of regularity that attends administrative decisions, and the presumption applies to MA.[26] Accordingly it may be presumed that the MA has read the material referred to him. However, presumptions are rebuttable, and we are left in the position that either the MA read the inconsistent statements before him, but thought that the unidentified “current guidelines” he was applying excused him from discussing them, or that he simply failed to consider them with sufficient care to appreciate that they did not confirm the allegation made by Ms Van den Berg that her daughter attended the house “most days per week” for the purpose of providing her with “the necessary prompting and assistance to remain in her home”. If there had been a significant deterioration in her condition since November 2020, the MA did not give that explanation, and we have strong doubts as to that proposition, as there was no other evidence before the MA of such a development.
[26] Jones v Registrar Workers Compensation Commission [2010] NSWSC 481 per James J @ [36] and [50]
Either way, it is not possible to discern the reasons why the MA accepted Ms Van den Berg’s account regarding the care given by her daughter in the light of the contradictory material we have referred to.
The Panel notes the account recorded by the MA also contradicts the worker’s own statement
We have referred above to Vegan, and observe that the evidence before the MA did disclose disputes of fact. In the present circumstances it was necessary for the MA to consider firstly that the earlier statements were inconsistent with the history he recorded and relied on, and secondly, without it being extensive or detailed, to give an explanation as to why he had ignored them.
It follows that the MA has not given adequate reasons for his evaluation of a Class 3 entitlement for this category and that a re-examination was required, but before turning to
Dr Hong’s reassessment, it is necessary to comment on the appellant employer’s appeal regarding the category of employability.
Employability
Although the MA spent some considerable time summarising the opinions of the medico-legal experts, he did not engage in any explanation for his opinion that a class 5 value should be accorded in this category. It was correct that the worker had been medically retired since 2017, but whilst relevant, such a fact is not determinative when the range of classes in this category is considered. Table 11.6 of the Guides[27] describes them as follows:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.
Class 2 Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3 Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4 Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 Totally impaired: Cannot work at all.”
[27] Guides page 57
It can be seen that whether a worker has been medically retired in the workplace is not a conclusive indicator that a Class 5 assessment must be given.
We note, for instance, that in her statement of 9 November 2020 Ms Van den Berg indicated that she had for a period rented out one of the rooms on the higher level of her house. She said that she found it too difficult to have strangers in her house and she did not give any further detail as to the period during which she was renting her room, but it was some indication that the worker had some capability, as she would have had to have dealt with matters like rent, tax and banking. Moreover, the classification by the MA was different to that advised by A/Prof Robertson (Class 4) and Dr Vickery (Class 3). She may well have satisfied the examples of Class 4 which involved a capacity to work less than 20 hours per fortnight.
Paragraph 10c of the MAC is a templated question that seeks “brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why the [MA’s] opinion differs”. As indicated, the MA reproduced about four pages of selected portions of the worker’s statements, without any further comments.
We were not assisted by the submission of the worker that, by merely setting out four pages of selections from her statements, the MA had explained the basis of his classification regarding employability. The relevance of the selections was difficult to understand. Much of them concerned the worker’s background, and the circumstances of her injury, which were not in question. They did not bear on the question of employability, as was submitted by the worker.
The MA also reproduced parts of nine different medical reports and clinical notes. He commented on the reports of Dr Vickery regarding the WPI assessment by A/Prof Robertson, and he disagreed with the deduction made by Dr Vickery, but none of his comments were relevant to the issues raised in this appeal. The MA did refer to Dr Vickery’s comment that there was no work-related incapacity, saying that he did not concur with that opinion, but no explanation was given as to why he thought a Class 5 assessment was appropriate.
For the above reasons, we were unable to discern the path of reasoning by which the MA reached either of the impugned assessments.[28]
[28] See Western Sydney Local Health District v Chan[28] per Adams J, citing at [13] dicta in Wingfoot Australia Pty Ltd v Kocak
Dr Hong’s re-examination report follows:
| Date of reassessment: | 3 August 2021 |
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Van den Berg described the problems with Lifestyle Solutions spanning over four years with bullying and harassment by various workers and facilitators. She said that they made life difficult for her, and she seemed to have a target on her back and she does not know why. They moved her around and changed her shifts and made it very difficult for her to continue working there. She suffered depression and anxiety symptoms and her symptoms persisted over the years with no substantial resolution at any point. She said that they came close to destroying her, it was very unjust. Even now she is yet to be told what she had done wrong to deserve such treatment. She said that mediation is meant to occur quite quickly but it took about two months to be organised, and even then the message was “go away and play nicely with each other” with no real solution offered.
· Present treatment:
Ms Van den Berg is taking Lexapro/Escitalopram 20 mg.
There has been no change in her treatment since Dr Baker’s MAC.
· Present symptoms:
Ms Van den Berg spoke about her irritability and said that she is angry that the insurance company made out that she was lying about her daughter’s involvement in her daily living.
On specific enquiry, Ms Van den Berg reported experiencing the following symptoms:
· Depressed mood.
· Generally reduced enjoyment and motivation.
· Major problems with her memory and concentration.
· Being easily fatigued.
· Feeling worthless.
· Fleeting suicidal thoughts. No self-harm behaviour.
· Appetite problems. She gained 20 kg in the past 3 years from inactivity, and is now 140 kg. She is not sure about her weight changes in the past 6 months.
· Sleep disturbance, she would go to bed at the same time but sometimes does not fall asleep until 4 am. Sometimes she does not get up out of bed until 12 pm. She averages less than 4 hours of sleep at night.
· Being irritable.
· She avoids social situations due to her anxieties.
· general health:
In terms of Ms Van Den Berg's physical health, she reported having had a bilateral knee problem. She had an operation three to four years ago and there have been no problems since then.
I asked her about her ankle arthritis. She said she does not know anything about this.
She has gained weight over time and suffers from insulin resistance and does not have diabetes.
Ms Van den Berg reported having a neck problem with two disc injuries, and since having a cortisone injection a few years ago there have been no problems.
Ms Van Den Berg's back pain is her main physical problem now. Her lumbar injury was sustained on 14 April 2014, she reported that when a client fell over on her she suffered chronic pain. Operation was discussed at one point but there was no plan to proceed with it. She said that she cannot do much because anything she does often would aggravate her baseline pain. For example, when she put a plant into the ground the pain became severe. When she does any cooking, she needs to lean on the bench or sit down otherwise the lumbar pain will become aggravated. She said that when she goes shopping, which is very rare now, she always needs to have a trolley to lean on.
In terms of walking capacity, Ms Van den Berg said without the trolley she probably could only walk five to ten minutes before the back pain becomes severe. She finds that her sitting is variable, sometimes she can manage ten minutes only, sometimes an hour. Standing is worse for her and aggravates her back pain. She generally needs support to stand and said that if she has to line up in a queue at the shops without any support, she would not be able do it.
In terms of carrying capacity, she does not know how much she is allowed to carry and said that she can carry one bag of groceries.
· Work history including previous work history if relevant:
Ms Van den Berg had worked in Lifestyle Solutions for six years and worked more than 38 hours per week. For about three months, she had secondary employment where she looked after an elderly woman in an aged care facility who needed lifetime care and support. She recalled before she went to work at Lifestyle Solutions in the mornings she would drop by to visit this woman to ensure she had taken her medications and this might happen three days a week. After about three months, the woman suffered a deterioration and was beyond Ms Van Den Berg's ability to support. There has been no other secondary employment.
Since Ms Van den Berg stopped work at Lifestyle Solutions in 2017 she has not undertaken any volunteer work or other income-generating activities, aside from having boarders.
· Social activities/ADL:
Ms Van den Berg is 62 years old and normally lives by herself, and since April 2021 she has had two boarders for extra income. She explained that she lives in a duplex with four bedrooms, three bathrooms, three lounges, spanning over four levels and that the only communal area is the laundry and kitchen.
She reported that since she stopped work in 2017 there have been intermittent boarders. Some might stay for a few days and some for three months but there have been no boarders for a while. Over the years there may have been boarders 50% of the time.
Ms Van den Berg reported there is no problem with her driving. She does not utilise public transportation.
Ms Van den Berg gets up in the morning and will attend to her two dogs and do a bit of dog grooming and feeding. Sometimes she has toast and coffee for breakfast, sometimes she does not eat at all. She reported that normally she is a good cook and used to cook a lot of food and then froze it for her parents, but she has not done this for a long time. She said she is not interested in cooking anymore. Ms Van den Berg tends to prepare simple meals, such as soups which last her a few days or she will buy packet food that she will microwave to eat.
Ms Van den Berg said that she will do some tidying up around the house but cannot do anything for long. Sometimes she makes her bed, sometimes she does not. She said that she was paying somebody to do the lawn and to clean up at home, but she had to stop because she could not afford it. Since she started having boarders, she has been able to pay for people to do her garden and cleaning again.
Ms Van den Berg also referred me to her 2017 statement where she mentioned that she was paying people to come in to do the cleaning and the gardening and that the insurance company should not insinuate that she was lying.
Ms Van Den Berg's daughter tends to come when there are no boarders. More recently, she has been having boarders so her daughter may come once a week or sometimes twice a week. Her daughter also had a baby recently so does not have as much time. Ms Van den Berg said when her daughter comes, she always asks her whether she has been showering. I asked Ms Van den Berg whether she needed prompting and she said it does not make any difference, even if her daughter did not ask her, she would be showering at the same interval. She said she can go for five days without showering and generally showers every three days because of lack of motivation. She said she forces herself to shower.
When there are no boarders, her daughter would come and visit three to four times a week.
Ms Van den Berg said the boarders live their own lives, however they share the kitchen but they do not always clean up and so she cleans up after them. When she sees there is water on the floor and there is a risk of slipping, she will clean up to make sure there is no danger. She explained that she does not do all the cleaning up and that the dining table is a mess. She does not need to cook for the boarders.
Ms Van den Berg attends to her finances which involves direct debit and also uses BPAY to pay the bills, and she does not do it in person.
Ms Van den Berg does the laundry maybe once a week and hangs up the washing, but needs to sit down because if she stands up for too long she has increased pain.
She said COVID-19 has been a blessing because she does not need to go out and see people as much. She generally only gets her groceries online and delivered to her home. More recently she estimates going to the shops such as Coles and Aldi and the chemist in person, maybe six to eight times in the last three months. She has not gone to the shops to buy clothes for many years.
Ms Van Den Berg's dinner is variable. Sometimes she will have toast, other times she will make a steak. She said she often throws food away because she has the ingredients but no motivation to cook it.
Ms Van den Berg has three sons, including one living ten minutes away; one in jail and another one living in Maitland. She said that they are “pretty hopeless” and only come and see her when they need something. She never had a large circle of friends and said that over time she has had no interest in keeping in contact with them. There is still one lady who would call to talk to Ms Van den Berg on a regular basis, but aside from her there are no other real friendships.
I asked about her daughter helping her with the vacuuming and laundry, and she stated she does not need help with because she has a cleaner. She explained the gardening and the yard are too physically demanding for her to do, but inside the house she often will put it off and only do it when it absolutely has to be done.
In the past Ms Van den Berg enjoyed swimming and she said she has no motivation to do it anymore. She still likes reading books and can read one to two chapters at a time, but she only reads very occasionally now, and after one or two pages she loses focus.
In the past she liked to have music in the house but she rarely listens to music now.
Ms Van den Berg has seven grandchildren but said that she stopped spending time with them because it was too much effort to go to their house. She explained that her residence is not suitable for the children to visit.
FINDINGS ON PHYSICAL EXAMINATION
Ms Van den Berg was assessed by videolink. Ms Van den Berg was assessed by herself and was at her solicitor’s office. I assessed Ms Van den Berg from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the 60 minutes assessment.
Ms Van den Berg appeared overweight and had long greying hair. She engaged well with the video assessment process. She cried and asked to take a break during the assessment. She was moderately restricted in her affect range and only laughed briefly. She spoke spontaneously and readily. She was not thought disordered and occasionally jumped to a different topic.
Towards the end of the assessment, I asked Ms Van den Berg for other information that she thought may be relevant and she asked me about treatment and whether people get better after the claim process is finished, and I discussed I could not provide an answer and directed her to her treating clinicians to address these questions.
·consistency of presentation
I have found no inconsistency in Ms Van Den Berg's presentation.
Table 11.8: PIRS Rating Form
| Psychiatric diagnoses | 1. Adjustment disorder with anxiety and depressive symptoms | ||||||||||
| Psychiatric treatment | Escitalopram 20 mg | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Ms Van den Berg reported skipping meals and does not need prompting to eat or to shower. She only showers every 3 days on average. She cooks her meals without prompting but only prepares simple food now. She is capable of independent living without regular support. Her physical conditions restrict some activities, such as prolonged standing during showers, and this is not assessable in the PIRS. | |||||||||
| Employability and Adaptation | 4 | From a psychological perspective, Ms Van den Berg performs limited productive tasks at home. Overall, this is less than 20 hours per fortnight. She is not devoid of productivity. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 4 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 15 | 8 | |||||
We adopt Dr Hong’s report.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 April 2021 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
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 Baker and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Ms Van den Berg reported skipping meals and does not need prompting to eat or to shower. She only showers every 3 days on average. She cooks her meals without prompting but only prepares simple food now. She is capable of independent living without regular support. Her physical conditions restrict some activities, such as prolonged standing during showers, and this is not assessable in the PIRS. | |||||||||
| Social and recreational activities | 2 | Ms Van den Berg did not celebrate Christmas or New Year’s Eve with her extended family, seven grandchildren or friends. She would watch Netflix if one of her preferred television shows were playing. She did not enjoy her television programs as much as she had in the past. She was unable to enjoy movies as she had prior to the onset of this work-related injury. She would walk her dog on occasion. | |||||||||
| Travel | 2 | Ms Van den Berg was unable to travel further than within her local and familiar regions. She was able to attend her treating medical team. She had been unable to travel due to severe anxiety to attend her father’s 89th birthday about two weeks prior to this assessment. | |||||||||
| Social functioning | 2 | Ms Van den Berg reported her relationship with her daughter was strained. She reported that she felt She reported that her son would call her most weeks. She did not call any of her children for assistance. She had lost all her friendship circle. She would talk to her aged parents on occasion. | |||||||||
| Concentration, persistence and pace | 3 | Ms Van den Berg reported having stopped most of her reading. She would become frustrated and agitated by her poor concentration. She lacked motivation to persist with her slow-paced progress whilst reading a few lines of text. She did not perform telephone banking. She had no home computer. She did not read magazines or newspapers, as she had no interest. | |||||||||
| Employability and Adaptation | 4 | From a psychological perspective, Ms Van den Berg performs limited productive tasks at home. Overall, this is less than 20 hours per fortnight. She is not devoid of productivity. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 4 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 15 | 8 | |||||
| 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) |
| Psychological | 13 September 2017 (deemed) | Chapter 11, pages 60-68 | Chapter 14 | 8% | 1/10 | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
John Wynyard
Member
Dr Nicholas Glozier
Medical Assessor
Dr Michael Hong
Medical Assessor
29 September 2021
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