Marshalls Sydney Pty Ltd v Fulmen

[2022] NSWPICMP 227

DETERMINATION OF APPEAL PANEL
CITATION:	Marshalls Sydney Pty Ltd v Fulmen [2022] NSWPICMP 227
APPELLANT:	Marshalls Sydney Pty Ltd
RESPONDENT:	George Fulmen
APPEAL PANEL:	Member Catherine McDonald Professor Nicholas Glozier Dr Julian Parmegiani
DATE OF DECISION:	19 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Assessment of psychological injury; consideration of recent treating practitioner’s report which showed markedly different functioning today of Medical Assessor’s examination; need to evaluate diagnoses of other relevant conditions made by several treating practitioners; intercurrent medical condition; Held– Medical Assessment Certificate revoked; maximum medical improvement not reached.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 6 December 2021 Marshalls Sydney Pty Ltd (Marshalls) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 November 2021.

2. The appellant relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.

3. 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 grounds of appeal on which the appeal is made.

4. The WorkCover Medical Assessment Guidelines 2018 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 2018.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Mr Fulmen suffered a psychological injury in the course of his employment which is deemed to have occurred on 1 July 2019.

2. The Medical Assessor diagnosed severe depression and anxiety and noted that he had developed psychotic features which had led to two hospital admissions but which had subsided with medication. The Medical Assessor assessed 23% permanent impairment.

PRELIMINARY REVIEW

1. We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018. Before doing so, the parties were asked if they objected to Member McDonald being a member of the appeal panel because she had prepared consent orders remitting the matter for referral to a Medical Assessor at a telephone conference on 22 September 2021. The parties indicated by email that they did not object.

2. As a result of the preliminary review, we determined that the worker should undergo a further medical examination because the Medical Assessor had failed to consider some of the recent evidence from Mr Fulmen’s treating practitioners which was markedly inconsistent with the assessment he made.

EVIDENCE

1. 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. 

2. Professor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 20 April 2022 and reported to the Appeal Panel. We had a further telephone conference after that examination. A copy of Prof Glozier’s report is attached to these reasons.

3. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, Marshalls submitted that the Medical Assessor failed to adequately consider evidence attached to the Reply, in particular a report from Mr Fulmen’s treating psychologist, Dr Pignataro, dated 14 April 2021.

3. In reply, and in submissions prepared by Mr Robison of counsel, Mr Fulmen submitted that the fact that one report from a treating allied health provider was not considered was insufficient to ground an appeal. He noted that the Medical Assessor was required to perform his assessment independent of other medical opinion and was not required to comment on each piece of evidence in the file.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan[1] 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.

   [1] [2006] NSWCA 284

The MAC

1. The Medical Assessor undertook an examination by video conference. He set out the history of the injury and in doing so said:

   “He had difficulty recalling his symptoms progression and confirmed that he suffered psychosis. He experienced a lot of weird things before commencing antipsychotics. He recalled that he had an admission for a few weeks and that all the hallucinations had resolved as he started taking antipsychotics. Before that admission, he was seeing spiders and hearing multiple voices outside his head, which were unfamiliar voices. These experiences have not occurred for at least one year now. He did not recall any specific delusion but certainly felt paranoid for different periods of times.”

2. The Medical Assessor recorded:

   “He has had 2 psychiatric admissions, to RPA hospital and Wesley hospital. The April 2020 RPA admission was initiated by police, they pulled him over as he was speeding.”

3. He set out Mr Fulmen’s symptoms and background history. He said:

   “After Year 12, he had no other major studies. He worked overseas in infrastructure government projects and he was performing well. He worked in Germany and Holland, and said he enjoyed the work and that he was treated well by everybody at work.”

4. The Medical Assessor described Mr Fulmen’s social circumstances and activities of daily living. He said:

   “Mr Fulmen was in a dark room and had a bushy beard and long unkempt hair. He switched the light on when I requested. He smoked briefly. He engaged well with the video assessment process.

   He was consistently restricted in his affect range and spoke in a quiet tone, generally laconic and at times he responded with latency. He did not speak spontaneously. He was not thought disordered and was generally impoverished in thought.

   Mr Fulmen presented as vague and woolly. He apologised that he could not recall the time line or details. At the end of the assessment, I asked Mr Fulmen for additional information that he thought may be relevant and he had no comments to make.”

5. The Medical Assessor summarised the injuries and diagnoses:

   “Mr Fulmen had no prior psychological difficulties. He described developing depression and anxiety symptoms in the context of working for Mercedes and the same set of symptoms persisted. He had developed psychotic features which is a part of his Major depressive disorder, and has had two psychiatric admissions. With the commencement of antipsychotic medication, the psychotic phenomenon has subsided and is no longer active; however, he continues to suffer severe depression and anxiety symptoms, and presented as being globally and consistently impaired.

   There has been mild substantial elimination of impairment with treatment, and his psychotic symptoms have resolved with antipsychotic medication and he does not need be in hospital anymore, and without treatment the overall impairment would be greater and he would likely be re-admitted.”

6. With respect to consistency of presentation he said:

   “I have found no inconsistency in Mr Fulmen's presentation. I noted Dr Potter’s opinion regarding Abnormal Illness Behaviour and this was not evident in my assessment.”

7. The Medical Assessor provided comments on material in the file, commenting on Mr Fulmen’s statements, a discharge summary from Royal Prince Alfred Hospital (RPAH), a report from his treating psychiatrist Dr Rajendran dated 12 May 2020, the report of Dr Takyar who assessed Mr Fulmen at the request of his lawyers and the report of Dr Potter who saw him on behalf of Marshalls. He commented on a report from Dr Pignataro dated 31 October 2019 and clinical notes from Wesley Hospital. He said:

   “In the treatment records, schizophrenia was listed at one point, 28 May 2021. Comment: this is not a true diagnosis and his psychotic symptoms are part of his major depressive disorder, he takes medications which are used in schizophrenia treatment.

   G P record noted, ‘Caught speeding 154km an hour’. 2020, bipolar disorder and major depression was listed. Some narcissistic traits, psychotic depression…”

8. The Medical Assessor completed the Psychiatric Impairment Rating Scale (PIRS) form and assessed 22% whole person impairment, adding 1% for the effects of treatment. In respect of social and recreational activities he said:

   “He does not have any social recreational activities anymore, and does not go to parties or any social gatherings. He avoids social contact almost at all costs. This has been the pattern before COVID-19 restrictions and has not changed with the easing of the restrictions.”

9. In respect of travel, the Medical Assessor said:

   “Mr Fulmen is anxious when he leaves home. He can go out on his own but avoids crowded places, and described problems with his driving. He is independent in travel around familiar local area.”

10. When assessing social functioning, the Medical Assessor said:

    “He is anxious and socially avoidant, and has ceased contact with all of his friends…”

11. In respect of concentration, persistence and pace the Medical Assessor said:

    “Mr Fulmen described having poor concentration. He has not undertaken retraining since the subject injury. He reported he cannot read books or read articles online, as these are too complex for him. He is inattentive when driving. His mental state examination is consistent with 3.”

Consideration of other medical evidence

1. The Medical Assessor was required to assess Mr Fulmen as he presented on the day of the examination.[2]

   [2] Guidelines paragraph 1.6.

2. The presumption of regularity applied to the Medical Assessor as an administrative decision maker[3] so that it is generally to be presumed that the Medical Assessor has done everything necessary in order to make his decision including considering all of the material in the file.

   [3] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [39].

3. His role was not to choose between the opinions put forward by the parties. In State of New South Wales (NSW Department of Education) v Kaur)[4], Campbell J said:

   “In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

   ‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

   Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

   ‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”

   [4] [2016] NSWSC 346.

4. However, the Medical Assessor was required to and consider the reports of treating practitioners and to explain where his opinion differed. One reason for this requirement is to explain to the parties why the result was not as set out in their own medical evidence. Another is to make sure that there is nothing in that material which impacts on the opinion he formed as a result of his examination.

Medical reports in the file

1. In this case there are three significant reasons why the Medical Assessor should have been alerted to carefully consider the reports of the treating practitioners in the months before the examination and critically assess Mr Fulmen’s presentation.

2. The first reason is because of the history of psychotic symptoms which Mr Fulmen has suffered. The Medical Assessor noted that Mr Fulmen had difficulty recalling his symptom progression but accepted the history that psychotic symptoms were a feature of his major depression and had resolved with anti-psychotic medication. That was also Dr Takyar’s opinion but as set out below, he also did not consider other explanations.

3. Mr Fulmen’s difficulty recalling the progression of his symptoms should have alerted the Medical Assessor to look at the other material in detail. Psychotic symptoms may accompany the most severe form of depression or may indicate another condition. The need to show the path of reasoning and to form a diagnosis before making his assessment required the Medical Assessor to carefully consider whether he should accept the history Mr Fulmen gave, particularly when other diagnoses had been suggested by treating practitioners.

4. The second reason relates to Mr Fulmen’s past treatment for Hodgkin’s lymphoma. Because of Mr Fulmen’s difficulty recalling the progression of his symptoms, the previous diagnosis of lymphoma should also have alerted the Medical Assessor to consider the role of that condition in Mr Fulmen’s presentation. The Medical Assessor accepted that the condition had been in remission for 10 years but other medical reports show that is not the case and that he has undergone recent investigations. The Medical Assessor should have been alerted to consider the possible relevance of cancer by the references in Mr Fulmen’s general practitioner’s notes about his avoidance of necessary investigations.

5. The third reason is that recent reports, such as that of Dr Pignataro dated 14 April 2021, roughly six months before the examination by the Medical Assessor, contain a dramatically different description of Mr Fulmen’s ability to function in areas which correspond to the PIRS scales. The Medical Assessor was required to engage with those reports and consider the likely reasons for a dramatically different presentation on the day of his assessment.

6. Because of those three significant issues, we have summarised the medical evidence in the file at some length. We do not suggest that such an extensive summary was required in the MAC and indeed this level of detail would not be appropriate in a MAC. The summary which follows is intended to highlight relevant matters in the history to which the Medical Assessor should have given some consideration, setting them out in chronological order and context.

7. Mr Fulmen’s statement was prepared by a factual investigator instructed by Marshalls. It has scant information about his life before the injury other than to say that he had been at his current address for nine months, his previous address for two months “and before this I was working in Antalya” (a city in Turkey).

8. Mr Fulmen saw his general practitioner, Dr Levinson, as a new patient on 9 September 2019 complaining of two recent episodes of heart palpitations. She noted the past history of Hodgkin’s lymphoma. Two weeks later, he provided a history of the events at work and she referred him to Dr Pignataro, a psychologist. Mr Fulmen’s condition continued to deteriorate. In December 2019 he attended RPAH emergency department at Dr Levinson’s referral and the psychiatric registrar prescribed Avanza. In early 2020, Dr Levinson proposed referral to a psychiatrist.

9. Dr Pignataro saw Mr Fulmen on four occasions before he prepared his first report dated 31 October 2019. He considered that Mr Fulmen had developed an adjustment disorder with mixed anxiety and depressed mood. In February 2020, Dr Pignataro said that Mr Fulmen would need “ongoing psychotherapy for some time, given my clinical impression - adjustment disorder with mixed anxiety and depressed mood co-morbid with vulnerable narcissistic personality features”.

10. Mr Fulmen has seen Dr Potter at the request of Marshalls’ insurer on two occasions. In his first report dated 4 February 2020, Dr Potter assessed adjustment disorder with mixed anxiety and depression. He noted that Mr Fulmen’s treatment had only just begun and that his prognosis was uncertain. He said:

    “The most significant issue out of which Mr Fulmen's Adjustment Disorder has arisen is his clinically significant anxiety and depression out of the grief of the loss of the cherished opportunity to be able to progress and succeed within his position as a car salesman for Mercedes.”

11. In a report to Dr Levinson dated 11 February 2020 Dr Pignataro noted that Mr Fulmen had failed to attend to appointments. He said he was not concerned for any risk factors associated with his current depressive state but that “the lack of work direction has been a long-term concern and one that has been aggravated by the job loss at Mercedes, which he hoped would be a turning point for him”. Dr Pignataro’s diagnosis was now adjustment disorder with mixed anxiety and depressed mood, but with vulnerable narcissistic personality features.

12. By March 2020, Mr Fulmen told Dr Pignataro that his psychiatrist was considering admission to hospital.

13. The documents in the file which are labelled as the notes of Wesley Hospital appear in fact to be the notes made by Dr Rajendran, Mr Fulmen’s first treating psychiatrist. The notes commence with a consultation on 4 February 2020 but that was described as a review. Dr Ranjendran noted that Mr Fulmen’s statements were contradictory. He said “[a]fter a while of engagement, opened up more about past” and referred to an assessment form which does not appear in the file. Dr Rajendran wrote “?Narcissistic traits evident”. Dr Rajendran also noted “?Air of drama” and “?factitious elements”. His impression was a major depressive episode with possible psychotic elements.

1. On 13 March 2020 Dr Rajendran considered premorbid obsessive type personality traits and possible OCD symptoms. Dr Rajendran “discussed admission again” and Mr Fulmen agreed. Dr Rajendran recorded that his impression was “Psychotic depression, ?BPAD, mixed mood with psychosis, ?premorbid OCPD ?OCD”. The abbreviations refer to bipolar affective disorder and obsessive/compulsive personality disorder. The plan was for Mr Fulmen to be admitted if the insurer agreed.

2. None of the hospital notes of Mr Fulmen’s admission appear in the file. Other documents suggest he was an inpatient at Wesley Hospital for up to four weeks. On 21 April 2020 Dr Rajendran anticipated a follow up consultation in his rooms “1/52 post discharge” but Mr Fulmen had been “caught by police speeding at 150km last night” and taken to RPAH. Dr Rajendran suggested “admission to short stay and if stable enough to be voluntary, consider transfer to Wesley”.

3. Mr Fulmen was discharged from RPAH on 21 April 2020. A letter from a hospital social worker notes that Mr Fulmen had been brought in by ambulance due to a severe panic attack.

4. Dr Rajendran saw Mr Fulmen on 28 April 2020 and noted that he had been discharged from RPAH as “not detainable”. He said that Mr Fulmen did not currently seem psychotic.

5. The early history of treatment is summarised in Dr Rajendran’s report dated 12 May 2020:

   “George is a 29 yo single male with a background medical history of Hodgkins Lymphoma, recurrent tonsillitis, Peptic Ulcer Disease/Gastro-Oesophageal Reflux Disease). He had no known psychiatric history prior to this presentation. He had first presented to RPA Hospital with features of Major Depressive Episode in the context of being falsely accused at work of mistreating a customer by a manager. He was discharged with a prescription of antidepressant medication which he felt was ineffective, and hence had presented for review with me at Wesley Private Ashfield Consulting Rooms. He was then diagnosed with Psychotic Depression characterized by depressive symptoms and auditory and somatic hallucinations, with perseveration on themes of feeling tortured. His antidepressant was changed with an antipsychotic being added. He initially improved but rapidly deteriorated again within days of running out of antidepressant medication, precipitating his Wesley Hospital admission.”

6. Dr Rajendran continued to see Mr Fulmen and summarised his interactions with Mr Fulmen’s friend, who encouraged him to leave the house. Dr Rajendran continued to consider further hospital admission in May 2020, though noted a gradual improvement.

7. On 5 May 2020 Dr Levinson recorded:

   “Talked about past goals - which were highly ambitious and lofty such as ‘making aviation safer for passengers’ and that he has ‘a jet engine patent worth a large amount of money’ and ?delusional ‘finding a cure for cancer’ as well as altruistic - wanting to adopt children to give them a better life.

   Talked about setting very small daily or weekly goals, baby steps

   Feels very uncertain about his future.”

8. On 9 June 2020 Mr Fulmen told Dr Rajendran that he was writing a book which he had almost finished. He then planned to find an agent and a publisher.

9. On 22 June 2020 Dr Rajendran noted that he had spoken to Dr Pignataro on the previous day and “[a]grees with suspicion of personality – diagnosis of Mixed Personality Disorder (Narcissistic and Obsessive Features)”.

10. Dr Rajendran reviewed Mr Fulmen on a number of occasions. On 9 August 2020 he wrote:

    “’Has been focused on writing book - no approaching end but doesn't like it - too optimistic for him. Agent loves it. Reflecting how he is upset that the story doesn't reflect his actual life.

    …

    Starts talking about all his inventions - engine that runs on water; jet engine - ?grandiose ideas.”

11. On 25 August 2020 Dr Levinson wrote:

    “Book writing

    Says he's written 300 pages of his novel (fiction) on the subject matter of artificial intelligence

    Can sit down and write for 8-10 hours a day. Has good motivation, concentration and focus once he starts

    Can have intrusive thoughts when he first sits down, related to past regrets/ embarrassments/ shame which he ruminates on

    Has lawyer friend of the family who is supportive and wants to help him with selling his book

    Study

    Still interested in studying philosophy - this has not been approved for funding by insurance company.

    Suggested he save up himself to cover the cost of the course

    Suggested doing a writing course

    Says he's interested in engineering. ‘I've read every engineering book’, has ‘Jet engine patent’

    ??grandiose

    Suggested looking into engineering bridging courses, says he's not ready ...”

12. Dr Levinson then had a telephone conversation with Dr Rajendran and noted:

    “Dx: bipolar disease with narcissistic traits

    - No longer thought disordered or psychotic”

13. Dr Rajendran wrote to Dr Levinson on 6 October 2020 and said:

    “On exploring symptoms, he reported depressive symptoms but referenced things that contradicted the severity of his symptoms, and indicated they fluctuated throughout the day and were not pervasive. For example, he stated that he was completely unable to do anything, socialize, completely disinterested in anything, but then stated he was going out to the café regularly, socially interacting with others, working on his novel, and watching things of interest on streaming video services. He reported that he was eating ok and that his medications were working. He denied any suicidal ideation. There was no evidence of psychosis. His grooming and attention to self-care seemed very good, being dressed fashionably, and seemed to retain attention (he was listening to music whilst waiting to be seen).”

14. On 13 October 2020 Dr Levinson recorded:

    “Long supportive counselling +++

    Feeling let down by Mercedes, a company he held in such high esteem. Appreciated their engineering and mechanics. His attitude towards them has made it particularly painful to have been treated by them the way he was. Felt like he was a great worker, bringing in millions of dollars of sales each month. Very angry, confused, shocked, at how he was treated by them, let down. Feels disrespected by them, which is particularly painful.

    Talked about the importance of integrity to him. States when he worked in Turkey he was offered bribes which he turned down.

    Despite all his achievements up until this point, he feels rather worthless.”

15. On 14 October 2020 Dr Rajendran wrote in his notes:

    “Explained current opinion - narcissistic personality disorder; adjustment issues/disorder; possible BPAD with psychosis but not demonstrating this recently; possibility of secondary gain/malingering. Possible presentation of recent physical complaints and behaviour may be in context of independent psychiatric assessment and focus of myself and psychologist on return to work/study, which he is not keen on.

    Advised to continue to focus on rehabilitation. If showing clear signs of relapse of depression or psychosis, or medical compromise as a result of starvation, then consider hospital treatment. If showing risks of harm to self, refer to public mental health (consider a schedule if necessary).”

16. On 28 October 2020 Dr Levinson noted:

    “George requesting referral to new psychiatrist

    Said he was unhappy with Dr Rajendran's comments regarding him being ‘resistant’ to returning to work, and the fact that he has ‘pre-existing conditions’

    Long supportive listening/counselling

    George says he's never been this mentally unwell in his life

    Despite enormous stress and dealing with corruption while working in the middle east, he was able to deal with the stress

    Since working at Mercedes he says everything has changed and now he has a very intense reaction to minor stresses and the thought of returning to work causing him palpitations, nausea, psychomotor irritation etc”

17. The copy of Dr Levinson’s notes in the file ends on 2 November 2020.

18. On 9 December 2020 Dr Takyar reported to Mr Fulmen’s solicitors. Mr Fulmen told him that he had stopped seeing Dr Rajendran because the doctor insulted him and they had a confrontation. Dr Takyar took a careful history of the psychotic features of Mr Fulmen’s condition.

19. With respect to Mr Fulmen’s past he recorded:

    “He worked for Harvey Norman for six or seven months in customer service and then worked for eight or nine years travelling and he gave a very limited and sparse history of his work in those years. He stated that he had worked initially for the bus department in the transportation section of the government in Ankara, Turkey for a year and a half on a tender or contract. He struggled to tell me more stating, ‘it's so many, small projects, big projects, all heavy machinery, infrastructure’. I asked him how many jobs this included, and he stated, ‘three, four. I don't like going into the past, I can't handle it doctor, it just upsets me too much’.

    He stated that he had worked at Mercedes-Benz in Parramatta for around four months before his employment was terminated. Mr Fulmen reported that before that he worked for ‘another government tender in Istanbul, and I was representing a Canadian firm, PBSC’, which he stated that he worked in for around a year and a half. He stated that this formed a part of the history of working for multinational and other organisations overseas, with at least several of these jobs in Ankara in Turkey. …”

20. Dr Takyar’s diagnosis was that Mr Fulmen suffered major depressive disorder with psychotic phenomena as well as a generalised anxiety disorder as a result of the injury. He did not consider any other cause for Mr Fulmen’s symptoms. Dr Takyar assessed 22% permanent impairment and allowed 1% for the effect of treatment, resulting in an assessment of 23% WPI.

21. Mr Fulmen saw Dr Potter again on 23 March 2021. The examination took place in person. Dr Potter considered that Mr Fulmen “presented as lost in an adopted state of disturbed grief at the loss of his longed for work. He behaved in a manner as if wishing to convey a defeated mentally ill person”. Dr Potter noted that treatment had just begun at the time of his previous examination and had said the prognosis was uncertain and would depend on his ability to be able to engage in treatment. He said that since that time Mr Fulmen described becoming totally debilitated which is unexpected from his history even if not receiving adequate treatment. He said:

    “Mr Fulmen's treatment will require a recognition of an abnormal illness behaviour with a solid physical and psychological management which may require hospitalisation and which will be a challenge to treatment and health professionals.

    His prognosis is guarded. Unless able to identify the source of his disorder and receiving solid integrated physical and psychological management, Mr Fulmen is likely to remain in his current functioning and state.”

22. Dr Potter said that the trauma of the loss of Mr Fulmen’s “dreamed about” life and future was likely to have been the precipitant and of his now adopted debilitated state” but it was more likely that the underlying aetiology is of a yet unidentified fragile emotional functioning”. He said that there is “the significant possibility of an underlying psychotic functioning”.

23. It is relevant to note that Dr Potter’s accepted that Mr Fulmen continued to suffer from the effects of the injury while querying the relevance of other conditions. His reference to the treatment required suggests that he considered that abnormal illness behaviour was part of Mr Fulmen’s condition.

24. Dr Rastogi is Mr Fulmen’s current treating psychiatrist but he did not begin to see her until April 2021. Dr Rastogi’s notes for 28 May 2021 read:

    “Stated that trialled pristiq and stated his symptoms amplified and had headaches with anueas [sic – auras?] and stomach aches and anxiety , stopped it currently

    taking olanzapine and sleep is erratic

    very insightless and very fixated on things

    Poor eye contact and resumed Prozac

    very avoidant and refusing any options

    is not keen to trial any other medications

    feels overwhelmed in last few weeks lost support person

    remains in sick state and very rigid in thinking

    very profound reaction to trigger

    psychotic phenomenon and abnormal illness behaviour is reinforced

    focused on injustice

    anxious and irritable and sated anxiety is high

    very dysfunctional in thinking and sick role

    work was part of his plan and feels ruined

    issues of poor insight and resistance to any options suggested

    Poor ability to recognise narcissistic traits and injury, discussed about his high functioning role and demands,

    Reason for contact:

    Schizophrenia

    Major depressive disorder” (typographical errors in original corrected).

25. There are no notes after that consultation. Dr Rastogi prepared a report to Marshalls’ insurer dated 22 July 2021. She said that Mr Fulmen had had a further brief admission to the Marie Bashir Unit in the previous month with acute suicidal ideation and worsening of depression with anxiety. That occurred in the context of an amendment to his certificate of capacity from no capacity to eight hours per week. She also said:

    “He has had relapse of lymphoma and diagnosis is yet to been established yet. He is undergoing multiple physical tests at RPA and given the psychological stress , he is traumatized by that and not coping currently . His persistent depressive disorder and severe stress has led to physical neglect and deterioration with poor distress tolerance perhaps leading to relapse of his lymphoma.”

26. Dr Rastogi set out the background history she obtained:

    “Reports having a good relationship and nil behavioural problems. He finished high school and worked in Government infrastructure projects in Europe and travelled a lot. He came back to Australia and resumed working with Mercedes.”

27. In that report, Dr Rastogi omitted any consideration of the diagnosis of schizophrenia which appeared in her notes.

28. Dr Pignataro reported to Dr Levinson on 14 April 2021. He said that he had recently consulted Mr Fulmen by telephone and that:

    “He was not seen prior to his trip to Perth with his close friend. It has been challenging to undertake regular intervention of late. He has been distracted by recent health concern with possible lymphoma, which is under investigation and dependent upon him completing the necessary medical checks that have been requested of him.”

29. Dr Pignataro said that Mr Fulmen did have capacity in a number of areas. He said:

    “He has been able to undertake daily activities with his close friend, work on his vehicle, write chapters of a book about his life, do occasional trips to the local cafe in Strathfield and most recently fly out to Perth for a few days with his friend...

    In terms of current functioning, George has undisturbed capacity to self-care, travel, undertake pleasurable activities (i.e., cafe trips, book writing and working on his car) and engage in social activities. Concentration also appears intact. His functional state under the guidelines of Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Table 5 - Mental Health Function, appears intact in the areas of self-care and independent living, social/recreational activities and travel, interpersonal relationships, though limited and in concentration and task completion capacity. Areas that are moderately affected include behaviour, planning and decision making and work/training capacity. He continues to lament of a negative life state without value and having no career aspirations. Attempts to address these areas in therapy sessions have been challenging.

    George was certainly affected by the loss of work opportunity. His mental state and functioning were aggravated by the job loss and pre-existing conditions of persistent depressive disorder co-morbid with features of a vulnerable narcissism personality structure were made more pronounced.”

30. Dr Pignataro said that he considered that Mr Fulmen had capacity to work up to 15 hours per week. He said that he would be better off with a training opportunity to develop work skills than to continue with psychotherapy.

31. Dr Potter prepared a further report dated 24 June 2021 having been asked to consider Dr Pignataro’s report dated 14 April 2021. He noted that Dr Pignataro’s report painted a totally different picture to Mr Fulmen’s presentation at Dr Potter’s last examination. Having considered Dr Pignataro’s report and a report from Mr Fulmen’s general practitioner, Dr Potter said that it was not clinically possible to stay in the view that Mr Fulmen’s loss of his job was “the predominant or whole cause or aetiology of his dysfunction”. Dr Potter said that the described workplace injury was not relevant to Mr Fulmen’s longer-standing, disturbed functioning. He considered it was likely that what happened at his workplace is an expression of a pre-existing underlying emotional/personality dysfunction.

Review

1. The requirement to assess the worker as he or she presents on the day of the examination does not mean that a Medical Assessor can disregard the other medical evidence in the file and the failure to do so is an error.

2. The material in the file revealed several diagnoses in addition to depression and anxiety and some of it described Mr Fulmen’s functioning in dramatically different terms to the way he presented to the Medical Assessor. The Medical Assessor should have squarely addressed that material and considered if it impacted on his assessment in the PIRS categories.

3. He should have sought further information from Mr Fulmen about his treatment for cancer because that condition and the uncertainty about the outcome is likely to contribute to depression and anxiety, as Dr Rastogi agreed. It is not possible to assess the impact of the condition based solely on the history obtained from Mr Fulmen.

4. Once an appeal panel has found error all aspects of the Guidelines “had to be brought to bear in order to produce a substitute certificate”[5]. In Hearne v Spamil Discretionary Trust[6] Hamill J noted that this included cl 1.15 of the Guidelines and a consideration of whether the condition had reached maximum medical improvement. The obligation on the panel is the same as that on the Medical Assessor.

   [5] Fagan J in Roads and Maritime Services v Wilson 2016] NSWSC 1499 at [27].

   [6] [2018] NSWSC 1631

5. Section 322(4) of the 1998 Act provides:

   “(4)  A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”

6. Paragraphs 1.15 and 1.16 of the Guidelines provide:

   “1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.

   1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”

7. Paragraph 1.34 provides:

   “1.34 If the claimant has been offered, but has refused, additional or alternative medical treatment that the assessor considers likely to improve the claimant’s condition, the medical assessor should evaluate the current condition without consideration of potential changes associated with the proposed treatment. The assessor may note the potential for improvement in the claimant’s condition in the evaluation report, and the reasons for refusal by the claimant, but should not adjust the level of impairment on the basis of the claimant’s decision.”

8. There is nothing in the file to suggest that Mr Fulmen has refused treatment, despite changes in his treating practitioners. It appears that he is seeing another psychologist, Ms Mukherjee, and is undergoing treatment for cancer.

1. The statements made by Mr Fulmen’s treating practitioners should have alerted the Medical Assessor to consider if further treatment was required and, as a result, whether it could be said that Mr Fulmen’s condition had reached maximum medical improvement.

2. The error which we have found made it necessary that re-examination take place. Prof Glozier’s report is attached to these reasons. We adopt that report.

3. Further investigation of Mr Fulmen’s condition and appropriate treatment is required before the impact of the injury can be assessed. The treating clinician’s notes indicate a first episode of psychosis and previous conditions and abnormal personality traits. Without investigation and treatment, it is not possible to reach a diagnosis and determination of maximum medical improvement. This is particularly so when a patient has suffered an episode of psychosis and appears to be relapsing with worsening impairment. Some time must be allowed to elapse to determine if what seems to be a recurrent psychotic episode is a feature of a severe depression or schizophrenia or schizophreniform disorder. Until a diagnosis is made and appropriate treatment undertaken, it is impossible to assess the permanent impairment that arises from the accepted injury. In addition, as Prof Glozier noted, Mr Fulmen will require a significant period of time of treatment of the cancers to alleviate the impact of the psychiatric symptoms that would arise from those conditions to enable the rating of any primary psychiatric injury’s impairment.

4. For these reasons, the Appeal Panel has determined that the MAC issued on 8 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 Act 1998 (the 1998 Act).

The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael Hong and issues this new Medical Assessment Certificate.

The Appeal Panel determines that the applicant’s condition has not reached maximum medical improvement and pursuant to s 322(4) of the 1998 Act, the degree of permanent impairment is not fully ascertainable.

Catherine McDonald

Member

Nicholas Glozier

Medical Assessor

Julian Parmegiani

Medical Assessor

3 May 2022

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL

Appellant:                 Marshall Sydney Pty Ltd

Respondent:              George Fulmen

Examination Conducted By:   Professor Nick Glozier

Date of Examination:            20 April 2022 followed by a further teleconference with the Medical Appeal Panel Members on 5 May 2022

1. The worker’s medical history, where it differs from previous records

Mr Fulmen tells me that over the past 6-12 months he has been undergoing extensive investigation and treatment for cancer. He says that he has been told he probably has a recurrence of a previous Hodgkin’s lymphoma, and that he is due to receive the definitive results of the investigations for this in two days under Professor Elliott at Royal Prince Alfred Hospital. He said he has repeat PET CT scans for this lymphoma which he is convinced has returned. He told me there are malignant lymph nodes in his neck. He also told me that as a result of these PET CTs he had an ultrasound of his neck which identified a thyroid cancer, diagnosed by a team involving Professors Larson and Roscoe at Royal Prince Alfred Hospital and is due for some form of interventional and/or radio/chemotherapeutic intervention in the near future. Currently some of his major complaints of an apparent psychological nature are of ‘lethargy, fatigue and stagnation’ which are key features of both of these types of cancer. He was unable to tell me whether his thyroid levels are elevated or reduced. In fact it was difficult to ascertain details of what was happening and the timeline of this and much of his explanation did not seem coherent medically, although I must admit I am not an oncologist. This may also be explained by him not understanding the investigations and ramifications. However it does accord with the rest of our assessment and Dr Potter’s assessment of a disorganised and inconsistent history, particularly relating to his personal and medical history and ‘vague and unclear responses’ as well as the reference to ‘almost by accident of a cancer in Turkey whilst travelling…’ with no detail. I note that these health concerns and investigations were also identified by Dr Pignataro about a possible lymphoma back in April 2021, although not presented to the AMS.

Mr Fulmen told me that he is no longer treated by Dr Pignataro, who he says “just stopped responding to my calls”. He stated he continues to be reviewed by Dr Rastogi via the telephone approximately every 1-2 months. He said he has never actually seen her face-to-face. It would appear he started seeing her in April 2021 and I cannot tell from her notes or her report of July 2021 whether she has actually seen him via telehealth or just conducted telephone assessments. However I do note the prior admissions to the Marie Bashir Unit with acute suicidal ideation, depression, anxiety and treatment. There have been fractured relationships with both his first psychiatrist as well as his first psychologist, which is often an indicator of personality disorder/difficulties.

He has, for the past few months, been treated by Dr Indrani, psychologist. He says she keeps him away from suicide, enables him to maintain a perspective and challenge some of his thoughts.

Current Medication

Olanzapine 10mg nocte, Fluoxetine 40mg daily, prn 2.5mg of Olanzapine and currently Panadeine Forte following his biopsy recently.

2. Additional history since the original Medical Assessment Certificate was performed

Mr Fulmen presented in a very similar fashion to that to the Medical Assessor. He said he feels constantly anxious and overwhelmed, avoiding people and episodes of heightened levels of arousal that can happen spontaneously if, for example, ‘I am trying to find an answer to life.’ Most of the triggers to this appear to be existential, but also related to the claim. He describes feeling chronically dysphoric, low, with little interest in people. He has a high level of anticipatory anxiety about going outside because of persecutory fears of people being against him or trying to harm him. He says he feels chronically unsafe/uncomfortable and described a non-specific range of paranoid ideation and fears for his own safety and what people might do to him. His circadian rhythm is highly variable and he spends much of his time in his room darkened, watching repeat episodes of The Simpsons. Although he falls asleep easily he does so at different times and spends much of the day lying in bed and appears to have assumed a highly disabled dysfunctional situation which he cannot explain why he should have entered into following the event at work.

In marked contrast to this dysphoric and persecutory pattern of symptoms was Mr Fulmen’s description of the 10 years prior to working for Mercedes which was incongruously fantastical and grandiose (as indicated at times in the notes with his long-term treating psychologist Dr Pignataro.

He told me that in the early stages after his injury he was writing a book about Artificial Intelligence and would spend long periods of time researching this on the internet. It was about how the human species would evolve with AI, but he says he has been unable to continue writing this book which he is convinced would have been published. In fact he told me today that if he had not been affected by the issue at Mercedes, ‘I would have had 10 books published.’

Towards the end of the interview he told me at length why things have gone so wrong. He said that whilst overseas he always upheld the reputation of himself and his country, and his morals, and had wanted to return to Australia to do something for this country. He then went on into a long description of his roles overseas. Again, this seemed highly fantastical and grandiose. Despite leaving school at year 12 and not achieving any further qualifications, he told me that he, whilst living in Germany and Holland or travelling in Turkey, he was involved in ‘high calibre government projects.’ He said the chief engineers of major engineering firms such as GE, Siemens and Bosch, would fly in to meet him wherever he was staying and they would organise high level government projects (but remarkably lacking in any detail). He said that this gave him great financial flexibility and he was involved in large scale engineering projects as an expert advisor. He also told me that while he had been away he invented a highly efficient jet engine for which he owns the IP and has several patents in the Australian Patent Office for this.

This description was grandiose and generally lacking in detail and seemed very strongly held, if not bordering on delusional. Whilst this may reflect the narcissistic personality disorder traits described by Dr Pignataro, they indicate a significant exacerbation of this. Furthermore, this undermines the idea that the job as a junior salesperson at a Mercedes car sale room would be a ‘dream job’ compared to a description of a 10-year/decade of international high-level collaboration, scientific achievement and endeavour.

Currently his functioning is very much as described by the Medical Assessor with minimal self-care, relying upon his mother to make/bring food, eating little, not caring about his appearance, withdrawing from friends, rarely going out and almost never accompanied, only being able to drive himself to RPA for appointments because he fears threats from others outside.

3. Findings on clinical examination

Mr Fulmen was sat in bed with a vest, beard, unkempt hair and presented in a very dishevelled state. He was quite disengaged. His affect was more blunted rather than low and restricted, and changed little when describing either threatening events or the amazing achievements of his life. His speech was empty, circumstantial with few details, inconsistent and bordering on thought-disordered. He describes both cardinal features of depression, a range of negative and persecutory cognitions about his current state, marked circadian disruption, self-promoting and grandiose thoughts and ideas held with a fixed level but appear to this reader to be so fantastical as to be delusional.

4. Results of any additional investigations since the original Medical Assessment Certificate

Nil.

Summary

Mr Fulmen continues to present with a deteriorating clinical picture. There appears to be mood-incongruent, over-valued ideas, if not delusions that have become more prominent over time. I note that much of this was detected by Dr Potter, who also recorded a deteriorating mental state and function over time, inexplicable by the initial injury. I would concur with this. Whether this reflects the development of a Schizophrenia (he certainly presents with the symptoms concordant with that today), a Schizophreniform Disorder or the impact of the reported two different types of cancers that he has (both of which are associated with very significant psychiatric symptoms), I cannot tell.

Regardless of all of this, Mr Fulmen cannot be considered as having reached maximum medical improvement. He will require a significant period of time of treatment of the cancers to alleviate the impact of the psychiatric symptoms that would arise from these to enable the rating of any primary psychiatric injury’s impairment.

Furthermore, given his ongoing decline of the underlying psychiatric disorder and apparent emergence of Schizophrenia/Schizophreniform Disorder, this disorder requires further evaluation and treatment from his treating clinicians.

He will not be suitable to be re-assessed for having achieved maximum medical improvement for at least one year.

Signed:          Professor Nick Glozier

Date:             9 May 2022