McGarrity v The Trustee for the Anglers Arms Hotel Unit Trust trading as Lennox Head Hotel
[2023] NSWPICMP 399
•18 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | McGarrity v The Trustee for the Anglers Arms Hotel Unit Trust trading as Lennox Head Hotel [2023] NSWPICMP 399 |
| APPELLANT: | Tania Wendy McGarity |
| RESPONDENT: | The Trustee for the Anglers Arms Hotel Unit Trust trading as Lennox Head Hotel |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 18 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (WPI); whether Medical Assessor erred in assessing social and recreational activities; whether he erred in assessing concentration persistence and pace; whether he erred in assessing employability; Held – Medical Assessment Certificate revoked and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms McGarity, appeals from the Medical Assessment Certificate of Medical Assessor Chew dated 20 February 2023. He had examined her on 9 February 2023, and assessed a 7% whole person impairment (psychological).
In doing so, he assessed three of the psychiatric impairment rating scales (PIRS) as follows:
(a) Social and recreational activities: Class 2 impairment;
(b) Concentration, persistence and pace: Class 2 impairment, and
(c) Employability: Class 4 impairment.
Ms McGarity submits that the assessment of each of these scales demonstrates error, because the evidence supported assessments of Class 3, Class 3, and Class 5 respectively, and inadequate reasons were given to support the assessments.
With respect to employability, she relies on fresh or additional evidence, being Certificates of Capacity issued by treating general practitioner (GP) Dr Staughton on 6 January 2023 and
13 February 2023.The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:
(a) The Certificates of Capacity of Dr Staughton are admissible on appeal, because:
(i)they are relevant to the assessment of Employability;
(ii)they could not have been obtained prior the commencement of proceedings, and
(iii)the later one (dated 13 February 2023) could not have been obtained prior to the examination on 9 February 2023, because it was issued after the examination had occurred.
(b) With respect to Social and recreational activities:
(i)in her report of 25 June 2021, treating psychiatrist Dr Butler noted avoidance behaviour;
(ii)in his report of 28 March 2022, independent psychiatrist Dr Chow noted, ‘She is not seeing her friends much and has become less social. She is maintaining contact with one friend only’;
(iii)the reasons for assessing a class 2 impairment are insufficient to enable the Appeal Panel to ascertain whether there is error, and so cursory as to warrant examination by a member of the Appeal Panel;
(iv)Medical Assessor Chew found that the appellant rarely goes out to events. That is consistent with a class 3 impairment, and
(v)in his report of 5 August 2021, Dr Gunn found ‘significant impairment … with regard to coming into town and socialising’, consistent with a class 3 impairment.
(c) With respect to Concentration, persistence and pace:
(i)on 28 March 2022 Dr Chow found that the appellant had ‘poor concentration and focus’, and ‘difficulty reading for more than 10 minutes’’ and ‘difficulty retaining information’. He assessed a class 3 impairment;
(ii)on 25 June 2021, Dr Butler noted the appellant ‘reports reduced concentration and memory and even struggles to follow a short movie …”. In her later report of 23 July 2021, she noted the ‘concentration and memory remain subjectively poor’. She reported no improvement in concentration in her report of 15 October 2021;
(iii)persistent dysfunction of this kind merits a class 3 impairment, and
(iv)the reasons for assessing a class 2 impairment were that concentration difficulties were ‘subjective’. This is insufficient to support a class 2 assessment.
(d) With respect to Employability:
(i)the certificates of capacity issued by Dr Staughton on 6 January 2023 and 13 February 2023 indicate that the appellant cannot work at all, which supports a class 5 impairment;
(ii)on 28 March 2022, Dr Chow also ‘certified that the appellant was totally unfit for work’;
(iii)in her report to the insurer [more correctly, her answers of 6 April 2021 to a questionnaire issued on the insurer’s behalf] Dr Staughton said that a current return to work was ‘unlikely due to irrepairable [sic] damage’, and continued to certify the worker as totally unfit for work, and
(iv)her solicitor draws the attention of the Appeal Panel to Dr Staughton’s ‘ongoing certification of incapacity for work …. as evidenced in the clinical notes of Dr Staughton annexed to the ARD’, without providing any dates, page numbers or other means of ascertaining what the ‘certifications’ were, or where they are to be found. It is not the task of an Appeal Panel to review large amounts of specified and unreferenced material in order to find whether a ground of appeal exists. It is the task of the appellant’s legal advisers to specify, by date and page number, the evidence which is relied upon to establish each individual ground of appeal. It will be unnecessary to consider this ground further.
The respondent submits in brief summary as follows:
(a) Leave to rely on the additional Certificates of Capacity is opposed;
(i)they are not admissible, because such evidence could reasonably have been obtained prior to assessment. In particular, the Certificate of Capacity dated 6 January 2023 existed prior to examination by the Medical Assessor on 9 February 2023, and could reasonably have been obtained from the worker, and
(ii)in any event, this evidence supports a class 4 assessment of employability, because Dr Staughton encourages the worker to start short hours, noting she is ‘very resistant’ to returning to work at present as she does not feel she is ready.
(b) With respect to Social and recreational activities:
(i)the Medical Assessor noted that the worker was able to attend significant social activities with the family and their dog. This supports an assessment of mild impairment;
(ii)psychiatrist Dr Bertucen recorded that the worker had reduced her involvement with friends, but retained one good friend, and
(iii)on 25 June 2021, Dr Butler noted that the worker’s parents live across the road and she sees them daily, and has a number of other family and friends locally.
(c) With respect to Concentration, persistence and pace:
(i)the Medical Assessor noted some loss of concentration, but not an inability to focus for up to 30 minutes, and noted there was capacity to begin slowly to engage in vocational activity, and
(ii)Dr Bertucen noted the worker’s report of ‘mild impairment of concentration and easy distractibility (leaves tasks half way through, forgets daily errands etc)’.
(d) With respect to the adequacy of reasons generally, the Medical Assessor was not required to provide every aspect of his reasoning, his reasons should be read as a whole and not with an eye finely turned to error (J v D [2022] NSWCA 147), and the activities referred to in the PIRS are examples only, to which the MA should not be ‘tied’.
Fresh or additional evidence
The appellant relies on Certificates of Capacity signed by Dr Staughton on 6 January 2023 and 13 February 2023. The Medical Assessor examined her on 9 February 2023 and issued his Medical Assessment Certificate on 20 February 2023.
Section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 provides that fresh or additional evidence may not be given on appeal ‘unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment’.
The certificate of 6 January 2023 was in existence well prior to examination on
9 February 2023 and to the issue of the Medical Assessment Certificate. Whether or not the worker obtained a copy of the Certificate of Capacity prior to examination – as to which, the evidence is silent – she could reasonably have done so. It is not admissible on appeal.The certificate of 13 February 2023 was issued after examination by the Medical Assessor, but prior to the issue of his assessment on 20 February 2023. Whether or not the worker obtained a copy of the Certificate of Capacity prior to examination – as to which, the evidence is silent – she could reasonably have done so prior to the issue of the Medical Assessment Certificate, and made application to put it before the Medical Assessor. There is no evidence that any such application was made, or any submission to that effect. It is inadmissible on appeal.
In any event, it was reasonably open to the appellant to obtain from her GP an up to date assessment of work capacity prior to both the examination and the issue of the Medical Assessment Certificate. For that reason also, the certificates are not admissible on appeal.
Even if they were otherwise admissible, neither of them supports a finding of a class 5 impairment in respect of Employability. Though Dr Staughton certifies the appellant as having no current capacity for any work, her reasons support a finding that there is some capacity – emphasis added:
‘unable to return to current position due to harassment and bullying
unfit to return to job at [name of workplace]
consider alternative employment in a safe environment ….
Encouraged to start short hours but Tania is very resistant to RTW at present as she does not feel she is ready ….’
These reasons support a finding that the worker was unable to return to work at her previous workplace, but suggest that she would be able to work in alternative employment where she is not bullied or harassed, even though the worker herself does not consider she is ready to do so. That evidence does not support a class 5 impairment.
Social and recreational activities
In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a Class 1 impairment in respect of this scale:
“She socialises regularly with family however rarely attends outside social events.”
Under the heading, “Social activities/ADL”, the Medical Assessor took the following additional history:
“She cares for and spends time with her dog Panda. She sees her parents every day who are in their 80s and live across the road. She sees her children regularly and her grandchildren. She bike rides regularly. She avoids going out where possible as she is fearful. She has reduced her contact and relationship with her friends.”
At [10c], he noted that he and Dr Chow had made different assessments with respect to Social and recreational activities, Concentration persistence and pace, and Employability. He explained:
“She is able to attend to significant social and recreational activities with family and dog. She has some loss of concentration but not to the extent of inability to focus for up to 30 minutes. She has capacity to begin to slowly engage in suitable vocational activity.”
The criteria for rating impairment in Social and recreational activities are relevantly as follows:
Class 2
Mild impairment: occasionally goes out to such events [social activities that are age, sex and culturally appropriate] eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
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.
Class 2 requires that the worker goes to social events ‘occasionally’, class 3 ‘rarely’. Class 2 requires that a support person is not needed. Class 3 requires that a support person is required.
The Medical Assessor found that the worker has ‘reduced her contact and relationship with her friends’, but did not take a history as to what social activities, if any, she continued to conduct with them, how frequently, and whether a support person was required. He did not indicate whether regular bike riding was solitary, or done with others. He noted that the worker avoided going out where possible, but did not say how often she went out, if at all, and whether she did so with others.
He did, however, indicate that she sees her parents daily, and her children regularly. The parents live across the road. Dr Chow said that the three children are adults, and that the worker lives with her husband. We infer that they do not live with the appellant.
These reasons are insufficient to explain why, having regards to the criteria in the Guidelines and the evidence before the Medical Assessor, a class 2 impairment was selected, as distinct from a class 3. They do not put the Panel in a position where it is able to discern whether error is present or absent. The insufficiency of reasons demonstrates error, requiring that the Medical Assessment Certificate be set aside.
Concentration, persistence and pace
To establish error in the assessment of a class 2 impairment, the appellant relied on the findings of Dr Butler and Dr Chow. They were made between 10 and 8 months prior to the assessment by Medical Assessor Chew. His task was to assess her as she presented at examination. He was not bound by the assessments or observations of previous assessors.
In his PIRS form, the Medical Assessor gave the following reasons for assessing a Class 2 impairment in respect of Concentration, persistence and pace – emphasis added:
“There are subjective concentration difficulties.”
We interpret this to mean that, though the worker considered she had difficulties with concentration, he did not observe them and was unable to verify them objectively.
The relevant criteria for assessing Concentration, persistence and pace are as follows:
Class 2
Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
In explaining the differences between his assessment and that of Dr Chow, he observed, “She has some loss of concentration but not to the extent of inability to focus for up to 30 minutes”. We interpret this as a finding that she could focus on ‘intellectually demanding tasks’ for up to 30 minutes. This is consistent with a class 2 impairment, though not necessarily inconsistent with a class 3 impairment.
On mental state examination, the Medical Assessor found:
“There was no formal thought disorder. Her speech was of normal rate, rhythm, volume and prosody. … She was oriented to time, place and person and her cognition was grossly intact.”
This is consistent with both mild and moderate impairment, but does not explain the selection of a class 2 impairment in preference to class 3.
So far as we can discern from his reasons, the evidence before the Medical Assessor was by and large consistent with either a class 2 or class 3 impairment. It was incumbent on him to explain why that evidence better fit class 2 than class 3. In the circumstances of this case, that involved engaging with the criteria for class 3 and explaining why that class was not an appropriate fit. He did not do so. We are left in a position where we do not understand why he considered class 2 was the more appropriate. That demonstrates error.
Employability
For the reasons already given, the Medical Assessor’s task was to assess the worker as she presented at examination. He was not bound by the opinions of clinicians who had assessed her on previous occasions, no matter how accurate their assessments may have been at the time. Though the GP’s historical assessments of work capacity were relevant, he was not bound by them. He was bound to make his own assessment, and to give reasons for it.
The relevant criteria for rating impairment in Employability are relevantly as follows:
Class 4
Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5
Totally impaired: Cannot work at all.
In his PIRS form, the Medical Assessor gave the following reasons for assessing a Class 3 impairment in respect of Employability:
“She is unable to perform significant work currently. She may be able to perform some very part time low stress work for a few hours with breaks.”
Those reasons fall short of a finding that the applicant is, on the balance of probabilities, able to work. He finds that she is incapable of ‘significant’ work, while suggesting that she ‘may’ be able to perform “some very part time low stress work for a few hours with breaks”. He does not go so far as to find that she is in fact capable of such work.
When discussing Dr Chow’s assessment, he said, ‘She has capacity to begin to slowly engage in suitable vocational activity’. We interpret that as meaning that she could engage in suitable work by way of trial, to see if she in fact was capable of work. That does not amount to a finding that she is in fact capable of remunerative work. It does not adequately explain the selection of a class 4 impairment as distinct from class 5.
The reasons given by the Medical Assessor do not allow the Panel to discern why a class 4 impairment was selected in preference to class 5, or whether there was error in that selection. The inadequacy of reasons itself demonstrates error.
Examination
Having identified error in respect of all three grounds of appeal, the Panel referred the worker for assessment by Medical Assessor Hong, who is a member of the Panel. His report follows.
“1. HISTORY RELATING TO THE INJURY
Brief history of the incident/onset of symptoms and of subsequent related events, including treatment
Ms McGarity had worked at the [name of workplace] for about 20 years performing hospitality work. She typically worked 50 to 60 hours a week and stopped work on 1 February 2021 and has not performed any work since.
She gave a similar workplace history and noted that her psychological health deteriorated in 2015 due to bullying behaviour. Some of the new managers were engaged in recreational drug use and they started bullying her and were making false accusations. Altogether there were about five managers involved, and it reached a point she was suffering panic attacks and feeling paranoid about everyone, and she eventually stopped working. She recalled having spoken to a GP in 2015 and was given temazepam because she could not sleep due to work stress, and the main treatment commenced in 2021 after she stopped working.
Despite treatment, she has not gained substantial improvement. She took several antidepressant medications but they caused major side-effects, including double vision. In the last six months, there has been no change to her treatment and psychologically, she said she is no better and no worse.
She said that the four walls at home are her safety zone and she is anxious whenever she goes out and usually, she has to take extra CBD oil to control her anxiety.
Present treatment
Ms McGarity is taking:
• CBD oil and Cannabis oil
• Melatonin as needed for sleep
She previously took Amitriptyline 20 mg, Agomelatine 25 mg and Mirtazapine 15 mg.
She has been consulting Sue Taylor, psychologist since June 2021 and had a recent session. She has been consulting Dr Christine Butler, psychiatrist around 2 years and had a recent session too.
No psychiatric admission.
Present symptoms
Ms McGarity has random dreams and said that she will dream about the staff members from the pub, and that their backs are turned to her and she has a machine gun and she will blow them away. She spoke to her treating doctors about it and her psychologist asked her to talk through it during the therapy session, and then did relaxation exercises.
She avoids situations that will increase her anxieties - she avoids people almost at all costs.
She said she is rarely hungry and may have lost weight recently, and she does not eat regularly.
She reported having chronically depressed moods.
She reported having poor concentration and ongoing difficulties with her memory.
She has a low energy and fitness level.
Suicidal ideation is "always in the back of my head". There is no self-harm behaviour.
She reported having sleep problems and nightmares.
She often experiences panic attacks when she is out.
She reported being "snappy" and easily frustrated.
She has not had psychotic symptoms.
Social activities/ADL
Ms McGarity is 55. She is living with her husband, who is an electrician and works overseas for about six months in 12 months. He will go overseas for about six weeks at a time and during that time, she said that her best friend, Tina, will move in to help her with cooking, home maintenance and reminding her to eat and shower.
She has three adult children.
Her husband does all the shopping and about once every two months, she will go with him because her GP is also located in the shopping centre - she will go and see her doctor and go into the shops briefly. When she is out, she is constantly anxious and “looking over my shoulder”. She will check car licence plates for people that she knows, and she said she is frightened of running into staff members from the pub.
She used to ride her pushbike and she disguised herself by wearing a hoodie and sunglasses. She said she would ride away from the town centre to avoid people. Around 6 or 8 months ago, she saw a staff member from the pub and she was terrified, and then stopped riding her bicycle.
Before her work injury, she said she was very active. She enjoyed surfing, snorkelling and paddle boarding, and would go out regularly with her friends and family, but has not done these activities for about two years now.
She said she had a big social circle and enjoyed catching up with people and doing things together, and now she isolates herself from everybody except for Tina because she is more like a sister, they have known each other for about 40 years.
She leaves the TV on for background noise but does not absorb it. She spends almost all her time at home, either in bed or on the lounge. She often sleeps a couple of hours during the day. She spends time with her dog but does not walk the dog, and usually her husband does it.
Ms McGarity does not use social media and aside from the one friend, Tina, she has no contact with any other friends. She said it is because people ask too many questions and she feels uncomfortable.
She has two brothers and a sister who live quite far away. They talk regularly and she stated never argue, but they do not visit each other much due to the distance involved. She has a reasonable relationship with her children but her two sons live about one and a half to two hours away, and so she does not see them or her two grandchildren much. She has a daughter that lives locally and she sees her maybe once every ten days.
2. FINDINGS ON EXAMINATION
Ms McGarity was assessed by video. She was at home and her friend, Tina, was present during the assessment.
She had long uncombed light colour hair. There was no psychomotor slowing but she presented as withdrawn and lacking vigour. She was consistently restricted in her affect range and reactivity. She spoke spontaneously in a soft tone. She had a disorganized narrative and lost track easily, and struggled with long questions.
3. SUMMARY
Summary of injuries and diagnoses
Ms McGarity had no prior psychiatric disorder and described chronic depression and anxiety and paranoia, as a result of working at a pub and feeling bullied and targeted by five managers over several years.
Since she stopped working she has had regular psychiatrist and psychologist treatment, and has engaged in sufficient treatment for sufficient time. Her psychological functioning is entrenched and poorly amenable to further intervention, and MMI has been reached.
She has developed a chronic Major depressive disorder.
In terms of social and recreational activities, Dr Chew noted Ms McGarity socialised regularly with family, but rarely attends social events. Dr Chow noted she does not engage in many hobbies or activities and used to engage in social gatherings. Dr Bisht noted she does not snorkel or surf, but does a bit of bike riding and rides away from the town. In my assessment, I noted she is paranoid around people and avoids any kind of social gatherings. She can tolerate her immediate family and a very close friend. She had many recreational activities with other people in the past and has relinquished these. She does not engage in any sporting activities or social recreation, and her visitors are mainly just one friend and her daughter, and occasionally her two sons, and this is consistent with a class 3 impairment.
In terms of concentration, persistence and pace, Dr Chew noted Ms McGarity has subjective concentration difficulties. Dr Chow noted poor concentration, difficulty reading for more than 10 minutes and Dr Bisht also noted very poor concentration and she will leave the TV on but cannot absorb it, and cannot read for more than 10 minutes and has to re-read the same page over and over. In my assessment, she reported that she no longer reads books or magazines because she is unable to do so. In the past, she will cook with a recipe, but she does not cook anymore, other than making toast and she cannot follow a recipe. She does not knit. On mental state examination, she presented with clear concentration difficulties and struggled with complex questions or long questions. Her impairment is consistent with a class 3.
Dr Chew rated employability as class 4. I noted she has not engaged in any tasks consistent with employment since she ceased working. I noted after Year 10, she did some retail work and was a postal clerk for a couple of years. There was a gap from working to raise her family and her next job was at the pub. All of her previous employments were in customer-facing roles. Given her level of paranoia, social anxiety and avoidance, and a lack of meaningful activity day to day, my view is that she has no work capacity, notwithstanding the views expressed by Dr Staughton in Certificates of Capacity issued on 6 January 2023 and 13 February 2023, and therefore I rated a class 5.
Consistency of presentation
I have found no inconsistency in Ms McGarity’s presentation.”
Conclusion
The Panel accepts the clinical observations of Medical Assessor Hong.
For the reasons expressed by him, the Panel assesses a class 3 impairment in respect of Social and recreational activities and Concentration, persistence and pace, and a class 5 impairment in respect of Employability.
The Medical Assessment Certificate of Medical Assessor Chew is revoked and replaced by the attached Medical Assessment Certificate.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W3980/22 |
Applicant: | Tania Wendy McGarity |
Respondent: | The Trustee for the Anglers Arms Hotel Unit Trust trading as Lennox Head Hotel |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Chew and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological injury | Chapter 11 p.54-60 | Chapter 14 | 19 | 0 | 19 | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 | She is able to attend to ADLs. She prefers online click and collect | |||||||||
| Social and recreational activities | 3 | She is paranoid around people and avoids any kind of social gatherings, which she had enjoyed. She can tolerate her immediate family and a very close friend. She does not engage in any sporting activities or social recreation, and her visitors are mainly just one friend and her daughter, and occasionally her two sons. | |||||||||
| Travel | 2 | She is able to travel independently with anxiety | |||||||||
| Social functioning | 2 | She maintains good family relationships. She has had less contact with friends. | |||||||||
| Concentration, persistence and pace | 3 | She no longer reads books or magazines because she is unable to do so. In the past, she will cook with a recipe, but now she cannot follow a recipe. She cannot engage in intellectually demanding tasks for up to 30 minutes. Her mental state examination is consistent with 3. | |||||||||
| Employability | 5 | Given her level of paranoia, social anxiety and avoidance, and a lack of meaningful activity day to day, my view is that she has no work capacity. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 5 | =3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| 2+ | 2+ | 2+ | 3+ | 3+ | 5 = | 17 | 19 | ||||
0