Marciano v State of New South Wales (Ambulance Service of NSW)
[2022] NSWPICMP 26
•18 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Marciano v State of New South Wales (Ambulance Service of NSW) [2022] NSWPICMP 26 |
| APPELLANT: | Michael Marciano |
| RESPONDENT: | State of New South Wales (Ambulance Service of NSW) |
| APPEAL PANEL: | Member Deborah Moore Dr Michael Hong Dr Patrick Morris |
| DATE OF DECISION: | 18 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Subject Matter of Decision; appellant challenged the Medical Assessor’s (MA) assessment in respect of 2 Psychiatric Impairment Rating Scale categories, namely self-care and personal hygiene and social and recreational activities; Panel confirmed assessment in relation to self-care and personal hygiene but revoked the assessment regarding social and recreational activities; MA erred in failing to consider Ballas v Department of Education (State of NSW); Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 November 2021 Michael Marciano (the appellant) 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 9 November 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 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 none was requested, and 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 MA 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.
The appellant submits that the MA erred in his assessment of two of the categories in the Psychiatric Impairment Rating Scale (PIRS), namely Self-care and personal hygiene and Social and recreational activities.
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 respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychiatric/psychological injury resulting from a deemed date of injury of 10 June 2019.
The MA obtained the following history:
“Mr Marciano joined the Ambulance Service in September 1998, and became an intensive care paramedic in 2004.
He sustained a work-related back injury in 2013 and was prescribed opiate analgesic. He misused this medication and developed an opiate use disorder. In 2016, he was accused of stealing fentanyl from the ambulance, leading to criminal charges, which were dealt with under section 32 of the Mental Health (Forensic Provisions) Act of 1990, allowing for diversion to mental health care without conviction. He was required to resign from his position as a paramedic.
Mr Marciano’s symptoms commenced sometime earlier, probably before 2010. He recalls being stressed by the intensive care training and the associated increased responsibilities. Often, he was required to attend jobs on his own, adding to the stress.
Like all paramedics, he was exposed to repeated scenes of trauma involving death and serious injuries of others.
When he injured his back in 2013, he took time off, allowing him to reflect on his stress levels.
He found that medically prescribed opiates reduced his work-related anxiety and distress. He sought medical support and was diagnosed with opiate use disorder and, later, posttraumatic stress disorder.”
After documenting Mr Marciano’s present treatment, the MA then set out present symptoms as follows:
“His mood is ‘flat’, generally worse in the morning. He can experience positive emotions, enjoying watching movies or having coffee with a colleague.
He experiences a high level of anxiety when away from home or in situations such as independent medical assessments.
He is irritable, prone to anger and road rage.
He is bothered by noise and crowds.
He experiences distressing, intrusive thoughts about his time as a paramedic. These often come as ‘projected images.’ Memories of jobs involving children are more emotionally charged for him, but he is also bothered by memories of attending to adults, especially those involving pedestrian motor accidents and motorcycles.
He doesn’t have thoughts of suicide but often feels like ‘just taking off.’
He is usually in bed between midnight and 1 AM, falling asleep quickly with medication. He wakes an hour or two later and has trouble falling back to sleep. He is often bothered by intrusive thoughts. He sleeps fitfully, getting out of bed between 8:30 AM and 9 AM. He often returns to bed for an hour or so later in the morning.
Once or twice a week, he has distressing dreams on themes relating to his work as a paramedic.
Since leaving work, he has gained more than 10 kg.”
In setting out details of Mr Marciano’s previous or subsequent accidents, injuries or condition the MA said:
“He has had appropriate treatment for his opioid use disorder and has not used opiates for several years.
He has no mental health sequelae from his chronic pain disorder related to his back injury.
The opiate use disorder is not contributing to his PTSD now.”
After documenting information about Mr Marciano’s general health and work history the MA then turned to consider the impact on his social activities and activities of daily living (ADL’s) saying:
“He has been with Belinda, a registered nurse, for 25 years and married for 20 years. They have three children, aged 11, 15 and 16 years. Their middle son has autism spectrum disorder, and their older daughter has ADHD.
He assists with household chores such as vacuuming, cleaning the kitchen, and doing laundry.
He does not miss meals and is endeavouring to lose weight, following a diet.
He showers and shaves every couple of days, often with prompting from Belinda.
Before becoming unwell, he enjoyed following cricket and AFL. He kayaked, cycled and had a home gym.
He often went to restaurants or cafés with family or friends.
He has reduced most of these activities. He occasionally goes out to dinner or a café with his family or a friend. He goes to movies every one or two months, choosing to go during the day because there are few patrons. He visits his father about once a month and may meet up with an ex-work colleague, usually someone in a similar situation.
He travels in the local area. For example, he picks up his children from school, drives them to tennis and visits his father. He also attends medical appointments. He does not like to travel further afield.
His relationship with Belinda is strained but ‘still good.’ He said they have trust and intimacy issues, and, on occasion, he has stayed at his brother’s house overnight. However, there is no violence, and they are not at risk of separation. His relationships with his children, father, mother and brother remain good. He maintains contact with four ex-work colleagues but has lost several friends due to his social disengagement.
He has never been very interested in reading. Now, he finds that he has to reread passages to maintain his understanding. He may help his younger children with their schoolwork.
He watches shows on Netflix, favouring science-fiction, with reasonable comprehension.
He has no projects or hobbies.
He has not worked in any capacity since leaving Sydney Trains [sic].”
Findings on examination were reported as follows:
“I assessed Mr Marciano by video link in his home. The quality of the connection was excellent, allowing me to do a comprehensive assessment.
Casually attired and well-groomed.
He was friendly and cooperative throughout the interview and able to give a detailed account.
He was depressed, with restricted affect.
There was no evidence of disorder of thought-form or perception.
He denied thoughts of suicide.”
In summarising the injuries and diagnoses, the MA said:
“I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
o post-traumatic stress disorder and (PTSD).
o opioid use disorder – in remission.
Mr Marciano was exposed to repeated trauma during his employment with the NSW Ambulance Service. He has intrusion symptoms in the form of distressing memories, flashbacks, triggered responses and dreams. He is avoidant of things that remind him of the traumatic events. He has negative alterations in cognition and mood, leading to detachment from others and a loss of interest in previously enjoyed activities. He has an alteration in arousal and reactivity, evidenced by irritability, anger, concentration problems and sleep disturbance.
His opioid use disorder has been in remission for several years.
His presentation is consistent.”
The MA assessed 8% WPI.
He simply stated: “The calculations are self-evident”.
The MA then turned to consider the other medical opinions, stating:
“The insurer QBE argues the following:
However, whatever the percentage whole person impairment is determined as a result of the injury, we consider there ought to be a significant s323 deduction for the pre-existing secondary psychiatric injury following the work back injury, chronic pain, the prescription of opioid medication which in turn led to the abuse of fentanyl and the claimant’s conviction in Sutherland Court for larceny (by a servant) of Schedule 8 medication and the termination of his employment for misconduct.
Dr Yajuvendra Bisht, psychiatrist, assessed a 50% deduction in any impairment as a result of those pre-existing factors/secondary psychiatric injury arising from the back injury.
Dr Glen Smith, psychiatrist, noted:
‘In my opinion, based upon the account provided by Mr Marciano, the back pain was significant in resulting in an aggravation of addictive disorder and subsequent abuse of fentanyl in the workplace. I do not agree (with Prof. Robertson) that the back injury was only of nuisance value. Mr Marciano stated that the ongoing level of back pain was a nuisance only but he also noted that it impacted on his functioning ... Therefore, his back pain did not appear to be only of nuisance value.’
Dr Smith continued that in 2019, the claimant had not reached maximum medical improvement. However, Dr Smith stated:
‘However, his previous addictive disorders had a significant contribution to previous impairment and a deduction would be likely be required when he does become stable for the assessment of whole person impairment.’
I have assessed Mr Marciano as he presents now. I do not consider that the opioid use disorder pre-dates the onset of trauma-related symptoms, which evolved into PTSD. Instead, it is a secondary injury that must be excluded in the assessment of this current impairment. Because this condition is now in full and stable remission, it is not contributing to the impairment and can be ignored.
Treating psychiatrist Dr Himalee Abeya, 10 March 2015, diagnosed an opioid use disorder and wrote:
‘From a diagnostic point of view I believe the emotional symptoms are best described as an adjustment disorder with anxiety and depressive symptoms. I do not feel he has sufficient symptomatology for a diagnosis of post-traumatic stress disorder (PTSD) at this point. Yet it needs to be kept in mind that if Mr Marciano returns to operational paramedic work now (without any treatment), he may leave himself significantly vulnerable to worsening anxiety symptoms and possibly having his adjustment disorder evolved into a more significant illness such as PTSD.’
Treating psychiatrist Dr Zhen Zhang, 10 November 2016, diagnosed post-traumatic stress disorder.
IME psychiatrist Dr Glen Smith, 22 November 2016, diagnosed an opioid use disorder and alcohol use disorder and wrote:
‘On assessment, he did not present with acute symptoms of PTSD. He did not described a pattern of long-standing PTSD was substance use (alcohol and opioids) as a means to cope with anxiety and distress. Rather he described a primary addictive disorder developing in the context of prescription of opioids for pain.’
These assessments provide evidence that Mr Marciano had psychological symptoms relating to trauma at the same time as his opioid use disorder. Substance use disorders are frequently seen with trauma-related syndromes.
IME psychiatrist Associate Prof Michael Robertson, 28 September 2018, diagnosed chronic post-traumatic stress disorder and noted:
‘It is likely that these symptoms have intensified and become more clinically prominent since Dr Abeya and Dr Smith’s assessments, where the prima facie issue was Mr Marciano’s substance use and its consequences.’
He determined 19% WPI (Classes 3, 3, 2, 2, 3, and 4).
IME psychiatrist Dr Ash Takyar, 12 November 2020, diagnosed post-traumatic stress disorder and determined 19% WPI (Classes 3, 2, 2, 2, 3, and 5). He added 2% WPI to account for the effects of treatment.
IME psychiatrist Dr Yajuvendra Bisht, 11 May 2021, diagnosed post-traumatic stress disorder and major depressive disorder and determined 7% WPI (Classes 2, 3, 2, 2, 2, and 3). Dr Bisht determined that ‘50% of his current injury is caused by the disciplinary action taken against him for the opioid use.’ He noted that the final impairment due to PTSD was 4% WPI.
These assessments have been done widely separated in time, with only those of Drs Takyar and Bisht being within the last year. However, these latter assessments determine 19% WPI and 7% WPI, respectively, without any apparent improvement in Mr Marciano’s condition.
I found no evidence to support Dr Bisht’s speculative contention that one-half of the impairment can be related to the disciplinary action.
Regarding self-care and personal hygiene, A/Prof Roberts determined a Class 3 impairment and wrote:
‘Mr Marciano is frequently remiss in showering and often requires prompting to attend to personal hygiene. He does not prepare food and would default takeaway food unless his wife prepares meals.’
Dr Takyar also determined a Class 3 impairment, saying:
‘He used to bathe every day, which has reduced to about five times a week these days because of his depressive symptoms. He used to eat three meals a day, which is reduced once a day. He changes his shirt every two days in his pants [sic] every 3-4 days. He is prompted by his wife for both. He used to attend to 50% of the cooking and now attends to 10%. He attended 50% of the grocery shopping, and now attends to 30%, and attended 60% of the chores before his injury now attends to 30%.
Mr Marciano attends less well to personal hygiene and is often prompted by his wife. However, he participates in the running of the household. He is eating regular meals and actively dieting to reduce weight, suggesting a reasonable level of self-care. He could likely live independently if necessary, albeit with a reduced level of self-care. His impairment is mild.’
Regarding social and recreational activities, A/Prof Robertson determined a Class 3 impairment and wrote:
‘Mr Marciano had frequently attended sporting events through his membership of the SCG trust. He has not been to any events for several years. He no longer goes to barbecues or family occasions and tends to avoid social functions.’
Dr Bisht agreed with this rating, and wrote:
‘Michael only occasionally attends social gatherings. Even when he goes he does not actively participate and he only meets close friends. He said that he only meets friends once a month. These are friends from the ambulance service. They meet at a café. His recreational activities are reduced substantially as well. He has sold the kayak. He has not been to watch a movie at a cinema hall for more than a year.’
Mr Marciano has reduced his social activities and given some things up entirely. However, he still goes out without a support person and socialises with family or friends from work. He can attend the cinema but has done so less frequently recently because of the Covid lockdown…”
The balance of the MA’s comments addressed matters not the subject of appeal, so we do not intend to repeat them.
The MA determined that there was no pre-existing condition and explained why he came to this view.
Dealing firstly with the assessment of self-care and personal hygiene, the MA assessed a Class 2, stating:
“Mr Marciano sometimes neglects to shower or shave until prompted by his wife. He helps with the housework, including vacuuming, laundry and cleaning. He eats regular meals and is actively trying to lose weight.”
The descriptor for a Class 2 rating reads:
“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 descriptor for a Class 3 reads:
“Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
The appellant submits as follows:
“In the statement provided by the Appellant’s wife, Ms Belinda Marciano, dated 27 July 2021, she gives an account of her husband regularly missing showers and not shaving, requiring encouragement to do so. Further, she explains that he will wear the same clothes over a few days, having become unmotivated, overweight and unhealthy.
In order to attract a class 2 rating, an individual must be assessed as capable of living independently, which is predicated on the ability to look after oneself adequately. In the Appellant’s submission, the concept of adequate selfcare would include matters of basic hygiene, including daily bathing and the changing of clothes.
In circumstances where the evidence is consistent that the Appellant neglects such matters, and only showers/changes clothes at the direction and prompting of his wife, he could not be said to be an individual capable of looking after himself adequately.”
It is noted that both A/Professor Robertson and Dr Takyar assessed a Class 3 in this category.
The task of an assessor is to make an assessment on the day of the examination.
The medical assessor found:
“Mr Marciano attends less well to personal hygiene and is often prompted by his wife. However, he participates in the running of the household. He is eating regular meals and actively dieting to reduce weight, suggesting a reasonable level of selfcare. He could likely live independently if necessary, albeit with a reduced level of self-care. His impairment is mild.”
In our view, this assessment by the MA is entirely consistent with a Class 2. Even though his wife may well on occasions need to prompt Mr Marciano to attend to his own personal hygiene, he clearly manages other aspects of self-care and personal hygiene adequately, for example, having the ability and determination to actively diet to reduce weight.
For these reasons, we do not consider that the MA erred in his assessment with respect to this category.
Turning now to the category of social and recreational activities, the MA assessed a Class 2, adding:
“He has given up some previously enjoyed social activities. Occasionally, he goes out for coffee or dinner with his wife or a friend but will not stay long. He meets up with an ex-work colleague about once a month. He can go to a movie once or twice a month during the day theatre is less crowded.”
The descriptor for a Class 2 reads:
“Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
The descriptor for a Class 3 reads:
“Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The appellant submits that a Class 3 is more appropriate.
Reference is made to Mr Marciano’s statement of 11 August 2021 where he said that he previously enjoyed socialising with friends, however this was now very rare. He also said that due to problems with busy, noisy or crowded places, he no longer goes to the AFL or one day cricket matches, corroborated by his wife. He said that he no longer engages in other activities, including kayaking and attending the gym and now describes his only hobby as “watching ‘Netflix’ and the occasional odd job around the house”.
Mrs Marciano also said that he misses many family events or catch up with friends, as he is simply incapable of dealing with the social interaction/conversation, even with family.
The MA said:
“Before becoming unwell, he enjoyed following cricket and AFL. He kayaked, cycled and had a home gym.
He often went to restaurants or cafés with family or friends.
He has reduced most of these activities. He occasionally goes out to dinner or a café with his family or a friend. He goes to movies every one or two months, choosing to go during the day because there are few patrons. He visits his father about once a month and may meet up with an ex-work colleague, usually someone in a similar situation.”
In our view, this is consistent with a Class 3 rating for reasons that follow.
It must be remembered that this category includes both “social” and “recreational” activities.
Mr Marciano has clearly significantly reduced his recreational activities, as documented in his statement and indeed by the MA, and, consistent with a Class 3 rating, “Rarely goes out to such events…”.
The solitary nature of Mr Marciano’s activities is noted throughout the MAC. Mr Marciano also made it clear that his various symptoms have not abated to any major extent. For example, he said that he occasionally goes out to dinner or a café with his family or a friend (our emphasis). He only goes to movies every one or two months, and goes during the day because there are few patrons (our emphasis). He also on occasions may meet up with an ex-work colleague, usually someone in a similar situation (our emphasis).
In Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (6 May 2020) (Ballas) the court held that events described as either solitary, that is, that do not involve interactions with other people or shared with a single trusted person only could not be described as ‘social’ within the PIRS category of social and recreational activities.
In addition, social and recreational activities are not akin to travel or social functioning. It is apparent from a reading of the table that the category of “social and recreational activities” is directed to the kind of activities that involve interactions with other people.
In other words, Ballas emphasises the social aspect of this category.
In our view, the evidence points to the solitary nature of Mr Marciano’s social and recreational activities, particularly since most of his activities involve interaction with a close and trusted friend or his family.
For these reasons, and having regard to the principles established in Ballas, we are satisfied that Mr Marciano rates a Class 3 in this category.
This then means that the Aggregate Score Impairment will be 2,3,2,2,3,4, resulting in a total WPI of 17%.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 November 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 Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric | 10 June 2019 (deemed) | Chap 11, p 54-60 | N/A | 17% | Nil | 17% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
Deborah Moore
Member
Dr Michael Hong
Medical Assessor
Dr Patrick Morris
Medical Assessor
18 February 2022
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