Mercon Group Pty Ltd v Ferro
[2023] NSWPICMP 539
•26 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mercon Group Pty Ltd v Ferro [2023] NSWPICMP 539 |
| APPELLANT: | Joe Ferro |
| RESPONDENT: | Mercon Group Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 26 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment (psychological); whether the assessor erred in assessing the rating scales, self-care and personal hygiene, social and recreational activities, concentration persistence and pace, or employability ; whether he erred in failing to make a deduction for the effects of pre-existing physical or mental conditions; whether he erred in failing to exclude the effects of physical injuries from assessment; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer, Mercon Group Pty Limited, appeals from the Medical Assessment Certificate of Medical Assessor Verma dated 21 June 2023.
The Medical Assessor assessed a 22% whole person impairment (psychological) as a result of injury on 3 February 2017. On that occasion, Mr Ferro fell 3.8 metres to the ground when a concrete slab on which he was standing gave way. His physical injuries to the left ankle, neck and lower back were so severe that he was admitted to the Intensive Care unit at a major public hospital. He was hit on the head by a falling object.
The Medical Assessor assessed a 24% whole person impairment, before making a deduction of 1/10th for pre-existing conditions. By way of explanation, reference was made to Schizophrenia, Tobacco Use disorder and Stimulant Use Disorder, as well as Traumatic Brain Injury.
The appellant employer submits that the deduction was in error, because “the MA has not correctly considered the evidence concerning the effect of the respondent worker’s physical injuries”.
The appellant submits that the Medical Assessor erred in his assessment of the following Psychiatric Impairment Rating Scales (PIRs), which he assessed as follows:
(a) Self care and personal hygiene: class 3
(b) Social and recreational activities: class 3
(c) Concentration, persistence and pace: class 3
(d) Employability: class 5.
In respect of each scale, the appellant submits that the Medical Assessor has failed to consider the effects of the physical injuries suffered on 3 February 2017 and either exclude or make a deduction for those effects, and has failed properly to consider the effects of pre-existing schizophrenia and bipolar disorder.
In respect of the first two scales, the appellant submits that the evidence supported a class 2 impairment. In respect of Concentration persistence and pace, it submits that the omission to administer formal cognitive testing amounts to demonstrable error, as does the failure to make a deduction for pre-existing psychiatric illnesses. In respect of Employability, it says that the Medical Assessor failed to consider the extent to which impairment resulted from the worker’s physical injuries.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines).
Submissions
The parties made written submissions which have been taken into account. In brief summary, the appellant submits as follows.
(a) In respect of Self care and personal hygiene:
(i)the Medical Assessor assessed a class 3 impairment on the basis of impairment in bathing and brushing his teeth, his dependence on his sister and friend to do the cooking and cleaning, and his inability do household chores: cooking, cleaning and laundry.
(ii)However, he failed to consider the extent to which these impairments resulted from physical injury, rather than psychological injury.
(iii)When impairments resulting from physical injury are excluded, the evidence is consistent with a class 2 impairment.
(b) In respect of Social and recreational activities:
(i)The Medical Assessor assessed a class 3 impairment on the basis that the worker no longer socialised in or engaged in soccer, bowling or squash, and was socially withdrawn.
(ii)Treating surgeon Dr Poplawski reported on 16 July 2021 that his inability to engage in boxing, soccer and tennis resulted from his physical injuries.
(iii)When impairments resulting from physical injury are excluded, the evidence is consistent with a class 2 impairment.
(c) In respect of Concentration, persistence and pace:
(i)The Medical Assessor assessed a class 3 impairment on the basis of impaired attention and concentration.
(ii)He failed to consider the statutory declaration of the worker made on 16 July 2019, which evidenced significant trauma to the head and problems with memory, and a resulting referral for MRI of the brain.
(iii)The Medical Assessor failed to consider the extent to which impairment under this scale resulted from the pre-existing conditions of schizophrenia, manic depression, Tobacco Use Disorder, Stimulant Use Disorder and traumatic brain injury.
(iv)The Medical Assessor failed to conduct formal cognitive testing. In its absence, he gives no reason for concluding that “his attention, concentration, and memory seem to be impaired”.
(d) In respect of Employability:
(i)The Medical Assessor assessed a class 5 impairment due to impaired attention, concentration and cognitive functioning.
(ii)However, he erred in concluding that, at the time of injury, the appellant was capable of full time work, having regard to the fact that from 2000 to 2017 he had been unemployed due to chronic mental illness and on a disability pension.
(iii)He also erred in failing to consider the extent to which impairment in Employability resulted from the physical injuries.
In summary, the respondent submits as follows:
(a) In respect of Self care and personal hygiene:
(i)There is no evidence that deficits under this scale were caused by physical injury.
(ii)The worker’s statement evidence describes a need for help under this scale after describing his psychological symptoms.
(b) In respect of Social and recreational activities:
(i)There is no evidence that deficits under this scale result from physical injuries.
(ii)The worker’s evidence as to those deficits in his statement of 28 March 2023 is uncontested.
(c) In respect of Concentration, persistence and pace:
(i)The respondent fails to refer to any evidence to support a conclusion that there is any contribution to impairment under this scale by the head injury or any pre-existing condition.
(ii)The appellant employer chose not to administer formal cognitive testing when it had the opportunity to do so.
(iii)The Guidelines do not require a Medical Assessor to perform formal cognitive testing.
(d) In respect of Employability:
(i)It is undeniable that prior injury the worker was engaged in full time work.
(ii)There is no evidence to support the contention that he was not so capable.
Self care and personal hygiene
In the PIRS Table, the Medical Assessor gave the following reasons for assessing a class 3 impairment in respect of Self care and personal hygiene:
“Mr Ferro’s self-care is impaired. He bathes and brushes his teeth less frequently. He relies heavily on his sister and friend, who is also his nominated carer, to cook and clean for him. He is unable to do any household chores including cooking, cleaning or doing the laundry.”
That was consistent with the following history which he recorded under the heading, “Present symptoms”:
“He lives by himself. His friends bring him food and his sister also drops by and leaves food. His sister and friend do his laundry and clean the house. He said that he doesn’t really go out. He rarely leaves home and he mostly leaves home to visit his mother who is sick with cancer. He is now able to shower himself, however, doesn’t bother about showering on a daily basis etc.”
The Guidelines set out the following relevant criteria for class 2 and 3 impairments on this scale:
Class 2
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.
Class 3
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.
On the history taken, Mr Ferro did not shower daily, even though he was physically able to do so. He was dependent on his sister and friend to bring food. That evidence is inconsistent with the criteria for a class 2 impairment that he be able to live independently and look after himself adequately. It is consistent with the criteria for a class 3 impairment.
We do not understand the appellant employer to submit otherwise.
It submits that the Medical Assessor should have determined the extent to which the assessed impairment under this scale resulted from the worker’s physical injuries, and then excluded those effects from the assessment.
The task of the Medical Assessor was to assess impairment resulting from psychological injury, by determining:
(a) what were the behavioural consequences of psychological injury;
(b) into which Scale each such consequence fell, and
(c) into which class of impairment the behavioural consequences of psychological injury in each Scale best fit, applying the criteria for each class.
If a particular impairment resulted both from physical and psychological injury, it was appropriate to include that impairment in his assessment. There can be no double counting of such impairments, as an award for whole person impairment can only be made for physical injury or psychological injury, not for both: s 65A of the Workers Compensation Act 1987. For those reasons, it was unnecessary for the Medical Assessor to apportion the impairment resulting from injury between that which resulted from physical injury, and that which resulted from psychological injury. It was sufficient for the Medical Assessor to be satisfied that the relevant behavioural consequences which form the basis of the assessment resulted from primary psychological injury, whether or not they also resulted from physical injury.
As indicated, the Medical Assessor referred to a number of behavioural consequences of injury in the reasons given by him for assessment, extracted above from the PIRS Table. His reliance on those behaviours necessarily implies that he was satisfied that they result from psychological injury, whether or not they also resulted from physical injury.
Given the severity of the two psychiatric disorders which he found at [7] had resulted from injury – post-traumatic stress disorder and major depressive disorder – it was well open to him to find, as he did by necessary implication, that the behaviours concerned, and the impairment to which they gave rise, resulted from primary psychological injury.
We can identify neither error nor the application of incorrect criteria.
Social and recreational activities
The same error is alleged in respect of the assessment of Social and recreational activities, relying on the opinion of orthopaedic surgeon Dr Poplawski that an inability to perform one of the three sports identified by the Medical Assessor – soccer – results from the worker’s physical injuries. Dr Poplawski also identifies two other sports which the physical injuries now preclude – squash and bowling – though nothing turns on it as they were not relied on by the Medical Assessor.
The same answer also applies. Given the severity of the disorders diagnosed as resulting from injury, it was reasonably open to the Medical Assessor to conclude that the impairment under this scale resulted from primary psychological injury, whether or not it also resulted from physical injury. The fact, if it be so, that an impairment results from physical injury does not preclude it also resulting from a primary psychological injury.
We can identify neither demonstrable error nor the application of incorrect criteria.
Concentration, persistence and pace
Like Dr Chow, who had been qualified by the appellant employer, and Dr Khan, who had been qualified on behalf of the worker, the Medical Assessor assessed a class 3 impairment in respect of this scale.
In the PIRS Table, the Medical Assessor gave the following reasons:
“His concentration is impaired. He reported that he doesn’t want to watch TV as he frequently forgets what’s going on. He tries to read book [sic] but he isn’t able to remember things.”
That reflected with precision the history recorded under the heading, “Social activities/ADL”.
The Medical Assessor is a psychiatrist. It is well within the clinical expertise of a psychiatrist to assess cognitive impairment without formal cognitive testing. The Guidelines do not require formal cognitive testing.
The task of the Medical Assessor was to make an assessment of the worker as he presented at examination, applying his clinical judgment. The assessment of cognitive impairment necessarily involves an application of clinical judgment on mental state examination. This is what the Medical Assessor did. We can discern no error in that approach. Neither the omission to administer such testing, nor making an assessment without it, demonstrate error or the application of incorrect criteria.
With respect to the submission that the Medical Assessor did not consider the statutory declaration of the worker dated 16 July 2019, he listed a number of individual documents which had been referred to him at [2]. The list did not include the statutory declaration. However, the statutory declaration was attached to the Reply, which was before the Medical Assessor. There can be no doubt that he had regard to the Reply, as he referred specifically to the reports of Dr Chow which were among those documents attached to it. The Medical Assessor was not obliged to refer to each and every item of evidence. There is no evidence that he failed to have regard to the statutory declaration. We are not satisfied that he did. The omission to refer to it does not cause us to discern error.
In any event, the Medical Assessor made specific reference to the worker’s statement of 4 November 21. At [21], the worker said:
“After emergency services were called, I was transported by ambulance to the Royal Prince Alfred Hospital in Camperdown. While I was in hospital, my head wound was attended to, removing the concrete pieces contaminating the wound and the wound was stapled together. I also underwent several CT scans and x-rays to my head, neck, chest, torso, lower back, left wrist and left foot to determine whether I had sustained any significant injuries during my fall.”
The report of Dr Poplawski dated 16 July 2021 was before the Medical Assessor. He took the following history – emphasis added:
“On 3 February 2017, Mr Ferro was helping to demolish a building, when he fell through a concrete slab bridging across a gap, which gave way under him, landing some 3.8 m below onto his feet.
He sustained injuries to his left ankle, neck, and lower back, and a scalp laceration from a piece of concrete, which had followed him down to the ground and hit him on the head.
He was taken by ambulance to Royal Prince Alfred Hospital at Camperdown, New South Wales.
He was hospitalised for eight or nine days, in the course of which his scalp laceration was debrided and sutured with staples.
He underwent investigations, in the form of a trauma series, which included his head, neck, chest, abdomen, pelvis, lower back, left wrist, and left ankle.”
Dr Poplawski also noted that a CT scan of the brain conducted on 3 February 2017 disclosed no abnormality.
The report of Dr Khan dated 9 August 2022 was also before the Medical Assessor. He took the following history – emphasis added:
“Mr Ferro described how on 3 February 2017, he was performing his normal work duties when the concrete slab that he was standing on gave way and he fell from a height of 3.8m to the ground. He reported briefly losing consciousness after he was struck on the head by a falling object.
As a result of this aforementioned traumatic incident, Mr Ferro suffered physical injuries to his head (laceration), cervical spine, lumbar spine and left lower limb (left ankle fracture). He was taken by emergency services to Royal Prince Alfred Hospital where he was admitted to the Intensive Care Unit. Mr Ferro continued to struggle with chronic pain and headaches. He mentioned how he was wheelchair-bound for more than one year after the subject injury.”
We are comfortably satisfied that the Medical Assessor was aware there was a significant fall necessitating conveyance by ambulance to hospital, and that the injuries included trauma to the head, resulting in a wound to the head, and a CT scan of the brain. The employer in its submissions refers to an MRI of the brain, but does not reference any evidence of that investigation. It may be that it intended to refer to the CT scan. Nothing turns on it, as the Medical Assessor was aware that a brain scan had eventually been conducted because, in his reasons at [2], the Medical Assessor recorded that the worker had provided him with an MRI of the brain dated 2 December 2020.
Employability
In his PIRS Table, the Medical Assessor gave the following reasons for assessing a class 5 impairment in respect of this scale:
“He does not have any current capacity as he struggles with impaired attention, concentration, cognitive functioning along with significant trauma based and depressive symptoms.”
He explained at [10c]:
“I have noted that Dr Chow has calculated the WPI for pre-existing mental health issues separately. I have noted that he has marked the employability section as 4. I have noted that Mr Ferro was in fact on a trial job in his second week of employment. I think it would be safe to then deduce that at the time of the incident, he was working and had the capacity to engage in full-time work.”
This reflected the following history recorded by the Medical Assessor at [4]:
“I have noted that Mr Ferro had been unemployed from around 2000 to 2017 due to chronic mental illness and had been receiving a disability support pension. He was in the second week of his trial employment as a labourer and a demolition worker with Merco Group Pty Ltd at the time of the index accident.”
The appellant submits, in effect, that it was not reasonably open to the Medical Assessor to find that the appellant was capable of full-time work, having regard to the fact that from 2000 to 2017 he had been unemployed due to chronic mental illness and on a disability pension.
The evidence before the Medical Assessor established that the worker had been on a disability pension for many years prior to his trial job, but that he was in fact working for over a week on a full-time basis before the injury occurred. In our view, it was reasonably open to the Medical Assessor to draw the inference that he did, namely that the worker was capable of full-time work immediately prior to injury. That is so, even if he had been previously been unable to work for many years.
The appellant also submits that there was a failure to consider the effect of the worker’s physical injures on his capacity for work. Even if the worker’s physical injuries affected his capacity for work as at the date of examination, that would not preclude a causal connection with psychological injury, or break the relevant chain of causation. The fact that the Medical Assessor assessed the deficits in respect of Employability as a result of psychological injury necessarily implies a finding that incapacity for work resulted from psychological injury, whether or not it also resulted from physical injury. Such a finding, in our view, was reasonably open on the evidence, having regard to the seriousness of the psychiatric disorders diagnosed by him as resulting from injury.
We can discern neither error, nor the application of incorrect criteria.
Effects of physical injury
Doing our best to understand [16] and [18] of its submissions, the appellant appears to submit that, in respect of all four scales the subject of appeal, the Medical Assessor failed to consider the effect of the worker’s physical injuries on 3 February 2017, and either to exclude their effects from assessment, or make a deduction for them pursuant to s 323.
The submission that the effects of physical injury should have been excluded is dealt with at [17] to [21] above. The same reasoning and conclusion applies in respect of all four scales.
The submission that there should have been a deduction for pre-existing physical conditions is dealt with below.
Deduction pursuant to s 323
Though unclear in its terms, we interpret [17] of the employer’s submissions as asserting that a deduction should have been made for the effects of pre-existing schizophrenia and bipolar disorder, but was not.
At [11a] of his reasons, the Medical Assessor considered the contribution to impairment of pre-existing conditions of schizophrenia, Tobacco Use disorder and Stimulant Use Disorder, though he does not specifically address the ongoing effect, if any, of bipolar disorder. He said:
“There is a past history of Schizophrenia, Tobacco Use disorder and Stimulant Use Disorder. I believe that there is also some mild cognitive impairment which can be due to Traumatic Brain Injury as well as long-standing Schizophrenia.”
He gave the following reasons at [11b] for making a deduction of 1/10th pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998:
“The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one-tenth.”
The first of these passages amounts to a finding that the pre-existing conditions of Schizophrenia, Tobacco Use disorder and Stimulant Use Disorder contributed to current impairment, and that some part of the assessed cognitive impairment resulted from physical injury, namely traumatic brain injury.
He gave no reasons for that finding, but it is a finding favourable to the employer, and no appeal on that or any other basis has been made by the worker.
The reference to brain injury was a reference to Mr Ferro being struck on the head when he fell. That could not constitute a pre-existing injury or condition, because it occurred on the same date as was pleaded in respect of the primary psychological injury. The worker has not appealed from this aspect of the assessment. Likewise, the other physical injuries suffered by the worker on 3 February 2017 cannot attract a deduction under s 323, because they, too, did not pre-date the date of psychological injury.
At [4], under the heading “History of Injury”, the Medical Assessor recorded:
“I have noted that Mr Ferro had been unemployed from around 2000 to 2017 due to chronic mental illness and had been receiving a disability support pension. He was in the second week of his trial employment as a labourer and a demolition worker with Merco Group Pty Ltd at the time of the index accident.”
Under the heading, “Past history”, he quoted the following passage from the report of independent psychiatrist Dr Khan dated 9 August 2022, on whose opinion the worker relied – emphasis added:
“Mr Ferro struggled to provide clear details about his pre-existing psychiatric history. He mentioned how he had been diagnosed with schizophrenia and bipolar disorder many years ago and had been prescribed psychotropic medications, including risperidone and mirtazapine. Mr Ferro reported how he had a psychiatric hospital admission to Rozelle Hospital in the 1990s. At the time of the subject injury, he said that he was only following up with his general practitioner when required and he was not engaging in any other psychological treatment or psychiatric treatment.”
At [6], the Medical Assessor extracted and summarised a number of medical reports and consultation notes by various treating clinicians. They included notes that the worker had been on medication for schizophrenia in 2000, that by 2004 he had been diagnosed with manic depression (bipolar disorder), and that in 2004 he was counselled for cannabis use and noted to be drinking regularly, up to six or more standard drinks on one occasion. They also included a note by neurologist Dr Barnes that migraine headaches had followed a head injury, though a brain MRI of 27 June 2020 had returned a normal study.
He also quoted the following passage from the report of independent psychiatrist Dr Chow dated 4 January 2023, on whose opinion the insurer relied – emphasis added:
“Mr Ferro is a 52-year-old male living at home by himself. He has a long history of mental health with diagnosis of schizophrenia and bipolar disorder, and he has been on disability support pensions for at least 10 to 15 years.
He stated he has never worked since he finished Year 9. He was with his ex-partner for 12 years. In 2017 he wanted to go back to work to start having a family. He therefore attended a work trial as a labourer, but after four or five days a concrete slab collapsed, and he fell approximately 3 m to the ground. As a result, he suffered physical and a psychiatric injury.”
Having regard to the reasons of the Medical Assessor, and to the statement and medical evidence before him, we are comfortably satisfied that he was aware that the worker had suffered prior mental health conditions, with significant diagnoses of schizophrenia and bipolar disorder, prior to injury on 3 February 2017. Though his reasons at [11a]-[11b] omit reference to manic depression or bipolar disorder, the reasons must be read as a whole. Doing so makes it clear that this prior illness was considered by him. We are satisfied that the omission to refer to it at [11a] was a clerical error, and that he did take it into account, together with other pre-existing disorders, when he found that the pre-existing mental disorders contributed to impairment.
The appellant employer takes issue with the decision to apply only a 1/10th deduction. That fraction was chosen on the basis that the “extent of the deduction is difficult or costly to determine”. In our view, that view was reasonably open on the evidence. We do not accept that no other deduction was considered by the Medical Assessor, because the Medical Assessor expressly considered the assessment of Dr Chow, who deducted 5% whole person impairment for pre-exiting conditions. The Medical Assessor was not bound to accept the views of Dr Chow.
We can discern neither error nor the application of incorrect criteria.
Conclusion
The Medical Assessment Certificate of Medical Assessor Verma is confirmed.
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