Ly v Sika Australia Pty Ltd
[2024] NSWPICMP 744
•29 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ly v Sika Australia Pty Ltd [2024] NSWPICMP 744 |
| APPELLANT: | Katia Ly |
| RESPONDENT: | Sika Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 29 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS) tables for self-care and personal hygiene, travel and concentration, persistence and pace; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 September 2024 Katia Ly lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Michael Hong, who issued a Medical Assessment Certificate (MAC) on 5 August 2024.
Ms Ly relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor applied incorrect criteria when assessing Ms Ly using the Psychiatric Impairment Rating Scale (PIRS). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 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 Ly was employed by Sika Australia Pty Ltd (Sika) as a payroll manager. She claims compensation for a psychological injury which is deemed to have been suffered on 3 December 2021 as a result of interactions in the workplace.
The Medical Assessor assessed Ms Ly and prepared a MAC dated 5 December 2022. At that time the Medical Assessor considered that Ms Ly’s condition had not reached maximum medical improvement. On 19 March 2024, Ms Ly requested that they may reconsider his MAC. On 13 May 2024, having considered the parties’ submissions, the President’s delegate referred the matter back to the Medical Assessor.
The Medical Assessor assessed 9% whole person impairment (WPI), placing Ms Ly in class 2 for self-care and personal hygiene, travel, social functioning and concentration, persistence and pace. He assessed her in class 3 for social and recreational activities and class 5 for employability.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Ms Ly to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Ly submitted that the Medical Assessor erred in his assessment of concentration, persistence and pace with respect to a statement dated 4 July 2024 prepared in response to reports written by Dr Roberts who saw her on behalf of Sika. She said that the Medical Assessor erred in noting that she completed her statement over two hours, by treating the preparation of the statement, as something she could do consistently (whereas she felt drained after completing it) and because he treated the final version of the statement as being her own, rather than a document prepared with the assistance of her husband and finalised by her solicitor.
With respect to travel, Ms Ly said that the Medical Assessor erred because she does not travel freely in the local area and the only reason for her travel is to see her psychologist.
With respect to self-care, and personal hygiene, Ms Ly said that the summary the Medical Assessor made was not an accurate reflection of the history and he was incorrect to exclude the physiological concomitants of her psychological injury.
Ms Ly did not appeal with respect to the Medical Assessor’s assessments of social and recreational activities, social functioning and employability.
In reply, Sika said that Ms Ly’s submissions with respect to concentration, persistence and pace sought merely to cavil with the Medical Assessor’s wording about the time it took to complete her statement dated 4 July 2024. It said that the history obtained was consistent with assessment in class 2. Sika noted that the Medical Assessor is able to observe the factors relevant to assessment under this table in the course of the consultation.
With respect to travel, Sika submitted that the Medical Assessor had made his assessment on the basis of the history obtained. With respect to self-care and personal hygiene, Sika submitted that the Medical Assessor had proper regard to all of the relevant components of Ms Ly’s condition and highlighted her statement that her physical symptoms of severe palpitations were not anxiety.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor set out the history he obtained with respect to Ms Ly’s social activities and activities of daily living. It includes:
“She does not take walks. She spends time in bed. She leaves the TV on as background noises and occasionally watches it.
She said she takes her medications without prompting.
Ms Ly talks to her daughters, who are at university and works. She spends time in the back yard. She does not walk her dog as she is a puppy and is an indoor dog.
She does not do any household chores, cooking or shopping. She said her mother cooks and cleans. She said, due to exhaustion and anxiety, she ‘locked’ and confused, and cannot move, and she cannot do the household chores, cooking and shopping.
She said she drives her car only short distances on her own, e.g. to her psychologist, 5 minutes away.
Ms Ly said her mother visits weekly and her husband picks her mother up. If her mother has not cooked then they order takeaway food.
She said no one else can cook and she cannot cook and cannot stand for long. She said she does not feel safe standing, and sitting is safer for her and she cannot explain it. She said she prefers to have someone with her, even going to the bathroom. She said it is not anxiety but she feels weak standing and therefore does not feel safe. She said she will see a cardiologist in a couple of weeks, for her palpitation, which she has daily and are very severe and scares her.
She showers 2-3 times per week and prefers to keep her door open. She said she showers only 2 times per week, if without prompting. She eats two meals a day and sometimes eats nothing in the whole day depending on her mood. She does not need prompting to eat. She said she gained weight in 2024 and is 84kg, and thinks this is from a lack of movement. She said she eats more sugary food than previously.
…
Normally, she enjoys shopping, coffee and spending time with friends, dancing, eating out at a café or restaurant, but she does not do these activities much now.
She said she goes up the road, to a local café with her daughters but she wants to come home early.
She has a reasonable relationship with her family and parents. She said she has a couple of friends but refused invitations to social events with them. She sees them
1-2 times a year only and does not tell them what happened to her. They visit her to have coffee locally.”The Medical Assessor summarised his mental state examination:
“Ms Ly said she was in bed as her puppy was there, and she did not want her dog to bark by being elsewhere. She had long dark hair, and appeared to have dyed hair. There was no psychomotor slowing or abnormal movements. She was talkative and gestured regularly. She spoke before I could complete my sentence sometimes. She was moderately restricted in her affect range and had rapid shifting affect. A facial rash was noted. She was not thought disordered.”
Summarising the injury and his diagnosis, the Medical Assessor said:
“Ms Ly has a recorded past history with anxiety and depressive symptoms. She developed pervasive depression and somatic symptoms of anxiety as a result of her employment, and my view is she developed a Major depressive disorder and this has not resolved.
I previously noted inconsistencies in Ms Ly's provided history and in the supplied document, in relation to her past psychiatric history, and that her condition is not stabilized. Since my last assessment, she has had further psychological/psychiatric treatment and her psychological functioning is now stabilized.”
The Medical Assessor did not make any deduction under s 323 of the 1998 Act, saying:
“Ms Ly had difficulties recalling her past psychiatric history even with information from her GP’s medical records. Dr Roberts’ noted inconsistency in her presentation. Her treating team’s records after she commenced treatment for her work injury was incomplete and did not contain a past psychiatric history. Some recorded Ms Ly had no past psychiatric history, which is incorrect.
It is difficult to be certain of her pre-injury psychological health and functioning, as there were many entries related to anxiety and depression, stress, sleep, irritability and fatigue symptoms before the subject injury, but she does not believe these were correct. Ultimately, I accepted there were no past psychiatric diagnosis.”
The Medical Assessor quoted extensively from Ms Ly’s statement dated 4 July 2020, removing the formatting. He said:
“We discussed her latest statement, 4th of July 2024, which had 25 paragraphs. She said that she had read Dr John Roberts' reports and had made notes, and typed them up on her phone slowly, and then sent them to her lawyer to tidy it up before submitting it to the Commission. She said it took her a couple of hours to do this, maybe after two hours. I discussed with her that she had told me that she no longer read books because she could not focus on anything for long and I noted she could focus on typing this document. She said it wasn't something she would do every day and it took effort and she felt drained. She asked her husband to read it as well. She said that she went back to it several times to make sure that it made sense. When she read emails, it was the same and she had to re-read.”
He contrasted his assessment with that of Dr Lim, whom Ms Ly had seen on 1 December 2023. He said:
“My view is she can focus on intellectually demanding tasks for 30 minutes. I noted he did not consider her capacity to write a long document, as it happened after his assessment.”
The Medical Assessor said that Ms Ly’s condition had reached maximum medical improvement, and that she had had sufficient treatment, though she has not improved with treatment. He did not make any allowance for the effect of treatment.
Assessment under the PIRS
The Medical Assessor was required to assess Ms Ly as she presented on the day of the examination and to exercise his or her own clinical judgement in determining a diagnosis and assessing permanent impairment.[3] The assessment may therefore be different to that of another examiner on another day.
[3] Guidelines paragraph 1.6.
We have addressed the PIRS tables in the order to which Ms Ly referred to them. Before considering each of the impugned tables, we observe that the important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. The PIRS recognises that there a range of conduct which can be described as normal. Assessment in class 1 is appropriate where there is “no deficit or minor deficit attributable to the normal variation in the general population”.
Rather than providing criteria for assessment, what follows the description of the level of impairment in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[4] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[4] [2015] NSWSC 633 at [65].
Concentration, persistence and pace
Table 11.5 assesses a worker’s ability to maintain concentration and persist with cognitively demanding tasks and measures the pace of their cognitive processes. The assessment under this table is different to the other tables of the PIRS because the consultation allows the Medical Assessor to form his or her own opinion as to the worker’s ability to concentrate and respond during the examination and his findings on the mental state examination are relevant, as well as the worker’s history. The consultation is itself a cognitively demanding task. A Medical Assessor is able to rely on the mental state examination with the other information provided in coming to his or her conclusion.
The Medical Assessor assessed Ms Ly in class 2 because:
“Ms Ly described having poor concentration.
She has not undertaken study and cannot read books anymore due to poor concentration.
I noted inconsistencies in her reported capacity to focus.
She said she took two hours to complete her latest statement in 2024 and had to review it several times. She said she had to reread her emails too.
Based on her reported concentration difficulties, history in her file and her statement, and as presented on the day of assessment, when I assessed her for 1 hour 10 minutes, my view is she can focus on intellectually demanding tasks more than 30 minutes and can follow complex questions during the assessment. My view is
writing a 25-paragraph statement over 2 hours, which involved re-reading, with detailed explanation regarding the IME reports, is an intellectually demanding task.”
Assessment in class 2 is appropriate for:
“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:
“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.”
We accept that the statement dated 4 July 2024 was prepared with assistance and that it has been edited and formatted by Ms Ly’s solicitor. We acknowledge that preparation of a response to a medical report is not something Ms Ly would do every day. However, she was able to prepare the basis for a long document. When she completed it, she felt drained.
Mr Ky’s description of feeling drained after she completed the document is consistent with assessment in class 2. The Medical Assessor’s observation that she was able to concentrate for the duration of the assessment also supports assessment in class 2.
Travel
The Medical Assessor assessed Ms Ly in class 2 because:
“Ms Ly has anxiety and only drives in the local area on her own, e.g. 5 minutes to her psychologist.”
The examples in the Guidelines for assessment in class 2 are:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
Assessment in class 3 is appropriate for:
“Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
The examples in the Guidelines highlight the ability to leave home and go to new environments without supervision. The examples also focus on the ability to travel, not whether a worker feels uncomfortable while travelling. It is important not to conflate the symptom of feeling uncomfortable with an impairment. The ability to travel is not the same as the ability to drive. Assessment in class 2 may be appropriate for a worker who chose not to drive at all.
Ms Ly’s submissions stressed that the purpose of travel alone is for treatment and that her psychologist is in the local area. She referred to her statement dated 15 March 2024 in which she said that her husband and daughters drive her because she no longer feels safe or comfortable driving independently. That is not the same as an inability to leave the house without a support person.
The Medical Assessor’s assessment in class 2 was correct.
Self care and personal hygiene
In Tasevski v Westpac Banking Corporation,[5] Schmidt AJ said:
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. ...
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”
[5] [2024] NSWSC 401 at [27]-[36].
The Medical Assessor was required to assess Ms Ly as a 53-year-old married woman of Lebanese background with 18 and 20 year old daughters, who are living at home. She said in her statement that she feels she has let her family down because she performs no housework and that before the injury she was an active mother, who was career driven, and wanted to be an inspiration to her children. The importance of Ms Ly’s background is seen in her comment that no one else in her household can do the cooking.
The Medical Assessor gave reasons for assessing Ms Ly in class 2:
“Ms Ly's self-care has declined. She told me she showers twice a week without prompting and skips meals, sometimes not eat for a day. She does not cook and orders takeaway food when her mother cannot bring food.
She is capable of independent living without regular support, and does not need prompting with self-care. Her physical symptoms are not assessable in the PIRS.”
The examples in the Guidelines for assessment in class 2 are:
“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:
“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.”Even without the physical symptoms, to which Ms Ly referred, it is clear that she should be assessed in class 3 for self-care and personal hygiene. She showers twice a week without prompting and only two to three times with prompting. She does not prepare her own meals or those of her family. She does no chores and is reliant on her husband for cleaning and her mother for cooking. She has gained weight due to her poor diet. Those factors show that she is incapable of living independently.
Though Ms Ly was to see a cardiologist soon after the examination by the Medical Assessor, her physical symptoms of palpitations, and feeling that she is unable to stand are consistent with symptoms, often suffered by those with significant anxiety. It was appropriate for the Medical Assessor to consider that possibility, rather than merely accepting Ms Ly’s statement that those symptoms were not symptoms of anxiety.
We reassess Ms Ly in class 3 for self care and personal hygiene.
CONCLUSION
For these reasons, we have determined that the MAC issued on 5 August 2024 should be revoked, and a new MAC should be issued.
When the scores as we have amended them are arranged in ascending order as required by paragraph 11.14 of the Guidelines they are: 2, 2, 2, 3, 3 and 5. The total is 17 and the median score is 2.5, rounded to 3. Under Table 11.7, the aggregate score converts to 19% WPI.
A new certificate is attached to this Statement of Reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3045/22 |
Applicant: | Katia Ly |
Respondent: | Sika Australia Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | 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 injury | 3/12/2021 | Chapter 11 | N/A | 19 | Nil | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
4
0