Lynn v RSL LifeCare Limited
[2021] NSWPICMP 61
•26 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lynn v RSL LifeCare Limited [2021] NSWPICMP 61 |
| APPELLANT: | Alison Lynn |
| RESPONDENT: | RSL LifeCare Limited |
| APPEAL PANEL: | Member Deborah Moore Dr Michael Hong Dr Nicholas Glozier |
| DATE OF DECISION: | 26 April 2021 |
CATCHWORDS: | WORKERS COMPENSATION- Challenge to the PIRS category of social functioning; submissions not consisted with the evidence; Medical Assessor assessed a Class 2; Held- Panel agreed the evidence supported this assessment; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 February 2021 Alison Lynn lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, (MA), who issued a Medical Assessment Certificate (MAC) on 21 January 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, given the limited issue on appeal, we consider that we have sufficient evidence before us to enable us to determine the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in his assessment with respect to the category of social functioning in the Psychiatric Impairment Rating Scale (PIRS).
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychiatric injury with a deemed date of injury of 31 December 2017. She was assessed via video-link on 19 January 2021.
The MA took a detailed history of the circumstances of the injury which we do not intend to repeat here.
The MA described the appellant’s present symptoms as follows:
“Her mood is low, and she is often teary. She can experience positive emotion, especially when she sees her children or step-children. She is more anxious and worries when new staff commence in her workplace. She finds it difficult to trust others. Her hair has started falling out. She is irritable, and this has adversely affected her marriage.
She has subjective difficulties with concentration and memory. She prefers to stay home. She had suicidal thoughts early in 2018 but not recently, except when her insurer communicates that ‘[Sh [sic] like this because of pain in [her] shoulder.’
She will be in bed by 10 PM and takes about 30 minutes to fall asleep, aided by her medication. She will sleep through the night and be up between 4 and 5 AM. She sometimes misses meals. She has recently lost about 6 kg with intention; she has reduced the size of her meals as a weight-loss strategy.”
The MA then noted:
“Ms Lynn was diagnosed with a psychiatric disorder (PTSD) in 2009 or 2010. She was unable to work for about ten months. In 2015, she was also diagnosed with mood and anxiety difficulties due to workplace problems.”
After setting out details of the appellant’s general health and work history, the MA then noted her social activities and activities of daily living (ADL’s) as follows:
“Ms Lynn wakes early and will attend to some housework, although she is limited by her shoulder injury. Her husband helps with heavier tasks. She prefers to stay home on days that she isn’t working. She never opens the front door.
She prepares some meals. She is prompted to shower and wear clean clothes by her husband.
She will attend a music venue on the weekend with her husband, following their mutual interest in music. She wouldn’t go without him and she doesn’t interact with others when she is out.
She occasionally goes out for lunch and may take their dog for a walk on the beach. She talks on the phone with a girlfriend, whom she gets together with every month or two.
She was a soloist singer but has given up this activity.
She travels locally to medical appointments, work or shopping, but avoids shopping centres. She will travel out of area to accompany Mike to a music venue. She and her husband love music and find it relaxing.
Her relationship with her husband is strained but he remains supportive and caring. There has been no violence or separations. She had a falling out with her son because she was unable to attend his planned Mother’s Day celebration, not understanding how difficult this would be for her. She has retained some close friends but lost others because of her social withdrawal.
She doesn’t read. She watches old movies and game shows with comprehension.
She works in an administrative role 19.5 hours a week spread over three days.”
Findings on examination were reported as follows:
“I assessed Ms Lynn over a video link. The connection was excellent and I felt able to do a comprehensive assessment. She was in her home. She asked her husband, Michael, could sit in as a support person. He did so and did not contribute to the interview.
Ms Leanne [sic] appeared casually attired and well-groomed. She was pleasant and cooperative throughout the interview. She described her mood as depressed. She appeared nervous, and her affect was restricted, congruent with her stated mood.
There was no indication disorder of thought-form or perception.
She denied any current thoughts of suicide, but stated that she became very distressed in some of her dealings with the insurer.
At the end of the interview, I asked her if she had anything further to add. She strongly emphasised that her mental health problems were solely due to being bullied by her co-worker and the poor response from management. She stressed that the human resources woman, and two managers were later sacked.”
The MA diagnosed “Persistent depressive disorder with anxious distress” adding: “She has an ongoing low mood, and this has been present for more than three years.”
As regards consistency of presentation, the MA said:
“Ms Lynn was at pains to attribute her current psychological state entirely to her perception of bullying at the hands of her co-worker at RSL Lifecare. She denied any contribution from any pre-existing conditions, stating that she had recovered fully before commencing work with RSL Lifecare. She stressed that she had been working three jobs and said ‘I wasn’t just well; I was absolutely brilliant.’
She also states that her ongoing problems with her shoulder, with its associated pain, has no part to play in her current presentation. This narrative is at odds with medical records and assessments of the treating clinicians and assessing doctors.
It is also not credible that her previous severe mental health problems, that persisted over several years, now play no part in her presentation. It is also more likely than not that her disability and pain (which she described as ‘agony’ in her statement of August 2020) are contributing in a significant way.”
The MA assessed 7% WPI from which he deducted one-tenth for her pre-existing condition, and added 2% for the effects of treatment, a total of 8% WPI.
He added: “She has successfully returned to part-time work suggesting improvement in her condition and substantial improvement in her impairment.”
He then turned to consider the other medical opinions, saying:
“Clinical psychologist, Ms Victoria Simpkins, on 12 September 2017, diagnosed ‘adjustment disorder with mixed anxiety ‘(extreme) and depression (severe).’ Responding to a question regarding causality, she stated: ‘Fall at work on November 1, 2016 with [fracture] humerus and severe capsulitis and frozen shoulder. Return to work trial in office where she reports bullying. … The original injury has been exacerbated by reported bullying behaviour she experienced in the office while on a return to work program… being in constant pain contributed to Alison’s loss of confidence.’
IME psychiatrist, Dr Mark Scurrah, on 11 April 2020, stated: ‘From Feb 2017 onwards, she then began to hear negative/critical comments about her by a work colleague. In this setting, she experienced a slow, progressive deterioration in her mood and increased anxiety consistent with a chronic depressive disorder with anxiety symptoms. The deterioration in mood occurred on the background of a chronic shoulder injury which required surgery in August 2018.
He assessed her whole person impairment at 15% and added 1% for ‘partial benefit from the prescription antidepressants.’
IME psychiatrist, Dr Graham George, 7 July 2020, writes: The diagnosis is one of a persistent depressive disorder, secondary to chronic pain and alleged bullying in the workplace.
My assessment of whole person impairment accords with Dr Scurrah except on the domain of concentration, persistence and pace… Although Dr Scurrah acknowledges the impact of the shoulder injury in her mental health state, he does not adjust for this in his assessment of whole person impairment. He also does not comment on other pre-existing conditions.”
The appellant makes the following submissions regarding the single class of the PIRS that is the subject of the appeal:
“The Assessor has taken a history from the Appellant that should have placed the Appellant in Class 3, not Class 2. A moderate impairment can easily be demonstrated by reference to previously established relationships being severely strained.
Firstly, the Appellant does not socialise with her friends anymore and even work colleagues that she had close relationships with in the past are now completely disconnected from her.
Secondly, the Appellant has completely terminated one relationship with one of her sons and has very marginal contact with the other son. An example of this disconnect with members of her own family is well illustrated by her not being invited to her son’s wedding next month.
Thirdly, the Appellant has a very strained relationship with her husband. She only socialises, that is leaves her house to socialise, in circumstances where her husband demands of her that she accompanies him. This in itself leads to severe strain being placed on her marriage and the cause of numerous arguments.
The examples provided in PIRS for a moderate impairment (Class 3) are consistent with the evidence of the Appellant set out above.
A mild impairment (Class 2), provides for existing relationships being strained by loss of some friendships however, the Appellant has clearly ceased contact with all of her friends and social contacts, except for one. Again, this is more consistent with the examples in class 3 rather than class 2.
The evidence of the Appellant is that her relationship with her husband is very strained…
Quite obviously, an Assessor in taking a history from an injured worker, is obliged to take a complete history into account and not parts of it. He is also obliged to consider all of the evidence in the written documents (ARD and Reply) and if the written documents do not provide a complete history to his satisfaction then he is obliged to request further information from the injured worker to ensure that he has sufficient information before deciding which class a worker falls into for each category...”
The MA assessed a Class 2 for social functioning stating:
“She has lost friends through her social withdrawal. She had a falling out with her son because she could not attend a Mother’s Day outing that he had arranged. She is more irritable, putting a strain on her relationship with her husband. He remains supportive and caring; there has been no violence or separations.”
The descriptor for a Class 2 is: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
In our view, the history obtained by the MA is completely consistent with a Class 2 for reasons that follow.
The appellant’s submission that she has “a very strained relationship with her husband” is simply not borne out by the evidence.
Although in her statement dated 31 August 2020, the appellant did say that she usually only socialised “when my husband makes me go with him…” that is not indicative of a demand by her husband, nor is it indicative of a “severe strain” on the marriage.
It is also inconsistent with the information the appellant gave to the MA when she saw him in January 2021.
It may be that her relationship with her husband had improved by then, but Clause 1.6 of the Guidelines requires and assessor to make a “clinical assessment of the claimant as they present on the day of assessment…”
The MA obtained a history that the appellant “will attend a music venue on the weekend with her husband, following their mutual interest in music.” Although he noted that “her relationship with her husband is strained” he also said: “but he remains supportive and caring.”
That in our view is not indicative of a “very strained” relationship with her husband.
In addition, we also note that Dr Scurrah in his report dated 11 April 2020 also assessed a Class 2 for social functioning, stating: “She reports she has a lowered libido, irritability and in this setting there has been difficulties with the relationship. They have not separated.” He also records that she “described her current husband in positive supportive terms.”
In her statement the appellant also said that she had two special friends whom she met up with on occasions, consistent with what she told the MA. There is no evidence that she has “clearly ceased contact with all of her friends and social contacts, except for one.”
The submission regarding the appellant’s relationship with her sons is also without any evidentiary basis.
It is true that the MA noted that she had a “falling out” with one of her sons, but that is not the same as having “completely terminated” a relationship.
The suggestion by the appellant’s solicitor that “this disconnect with members of her own family is well illustrated by her not being invited to her son’s wedding next month” has no basis in any of the evidence before the MA and was not recorded by him at the time of his assessment of the appellant. Again, we repeat our comments regarding the task of an MA set out in paragraph 32 above.
Again, the perhaps strained relationship with her sons is consistent with the assessment of the MA and the descriptor for a Class 2 rating.
In summary, there is no evidence to suggest that the MA erred in his assessment with respect to social functioning. It is consistent with the evidence generally and also consistent with the history recorded by the MA at the time of his assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 January 2021 should be confirmed.
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