Miller v Deloitte Services Pty Ltd
[2021] NSWPICMP 134
•26 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Miller v Deloitte Services Pty Ltd [2021] NSWPICMP 134 |
| APPELLANT: | Natalie Anne Miller |
| RESPONDENT: | Deloitte Services Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr Julian Parmegiani Dr Michael Hong |
| DATE OF DECISION: | 26 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker asserted error with respect to assessment of impairment with respect to psychological injury; the appellant submitted that the Medical Assessor had erred in the assessment of impairment in the area of function “concentration, persistence and pace” and by failing to assess the effects of treatment; Held- the Medical Assessor had considered the evidence and was entitled to rely on his own assessment upon examination where his conclusion differed from that of the respective independent medical experts; Ferguson v State of New South Wales applied; although the appellant worker’s independent medical expert had assessed an additional 1% WPI for the effects of treatment, there was no credible evidence of “apparent substantial or total elimination” of the impairment as a result of treatment; the assessment by the Medical Assessor of 19% WPI as a result of injury spoke for itself and there was no need for the Medical Assessor to comment on the effects of treatment in the absence of any beneficial effect. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 April 2021 the appellant, Natalie Anne Miller, lodged an Application to Appeal Against the Decision of a Medical Assessor (the application). The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 March 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The respondent to the appeal, Deloitte Services Pty Ltd, filed a Notice of Opposition to Appeal against the Decision of the Medical Assessor. The respondent’s submissions included a submission that the Medical Assessor had fallen into error as detailed in the submission. To the extent that this particular submission was intended to constitute a cross appeal by the respondent, that ground of appeal was not accepted by the Delegate of the President and consequently that ground of appeal is not before the Panel[1].
[1] section 327 (4) of the 1998 Act
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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Miller suffered psychological injury, deemed to have occurred on 11 May 2015, in the course of her employment by the respondent, Deloitte Services Pty Ltd (the subject injury). A claim for workers compensation benefits was accepted by the respondent’s insurer.
In August 2016 Ms Miller was examined by a consultant psychiatrist, Dr Thomas Oldtree Clark. Dr Clark diagnosed Ms Miller as suffering from a Major Depressive Disorder and assessed 15% whole person impairment (WPI) by reference to the Psychiatric Impairment Rating Scale (PIRS) arising from the subject injury.
In November 2016 Ms Miller was examined by Dr Glen Smith, at the request of the insurer. Dr Smith also diagnosed “Major Depressive Disorder, Moderate”. Dr Smith assessed
Ms Miller at that time as having 7% WPI as a result of the subject injury.Ms Miller was again examined by Dr Smith in May 2020. Dr Smith reviewed reports of a treating psychiatrist, Dr Baumgartner, the treating psychologist, Dr Orum, and conducted a mental state examination. At that time he assessed Ms Miller as suffering 17 % WPI after deducting 1/10 in respect of “vulnerabilities to depression and other factors”.
Dr Clark examined Ms Miller again in July 2020. At that time he diagnosed Persistent Depressive Disorder. He assessed Ms Miller as having 23% WPI including 1% for the effects of treatment.
Dr Smith provided a further report in August 2020 in which he expressed the view that
Ms Miller had not reached maximum medical improvement after consideration of further material. Following receipt of that report, the insurer gave notice that weekly payments of compensation would be terminated.In December 2020 Ms Miller’s legal representatives filed an Application for Assessment by an Approved Medical Specialist[2] seeking assessment as to whether the degree of permanent impairment is more than 20% for the purposes of section 39 of the Workers Compensation Act 1987 (the 1987 Act).
[2] The title of the document as filed prior to 1 March 2021
The medical dispute as to the extent of impairment was then referred to the Medical Assessor who assessed Ms Miller on 2 March 2021 as having 19% WPI as a result of the subject injury. The Medical Assessor did not assess any additional impairment with respect to treatment effect.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because error had not been established with respect to the MAC.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor fell into error in assessing Class 2 in respect of the PIRS Category, “concentration, persistence and pace”. The error alleged was failure; “to take into account the impact upon the applicant’s concentration, persistence and pace with reference the available lay and medico-legal evidence and the relevant guidelines.”
The appellant further submitted that the Medical Assessor had failed to address “treatment effect” and to make an appropriate assessment.
In reply, the respondent submits that the assessment with respect to “concentration persistence and pace” was open to the Medical Assessor on the evidence which necessarily included his observations on examination. There was no basis for assessing additional impairment in respect of “treatment effect” as there had been no “apparent substantial or total elimination of the claimant’s permanent impairment”[3].
FINDINGS AND REASONS
[3] Citing Paragraph 1.32 of the Guidelines
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[4] 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.
[4] [2006] NSWCA 284
Concentration, Persistence and Pace
The Medical Assessor recorded a history:
“Ms Miller said she has difficulties with concentration and memory is poor. She said she struggled while watching the news. She also said she has been encouraged to read by a psychologist but cannot continue beyond two pages. These assertions are at odds with her ability to concentrate during the two hour interview and ability to prepare statements for the documentation. She is mildly impaired.”[5] The Medical Assessor repeated these observations in the PIRS Table attached to the MAC. He assessed
Ms Miller as Class 2 in respect of this area of function.[5] MAC Paragraph 4, Page
The appellant noted the comment of the treating psychologist, Dr Margo Orum, in her report dated 22 May 2020. Dr Orum referred to Ms Miller’s statement dated 14 May 2020 (also in evidence) in which Ms Miller noted difficulties with concentration, contrasting her previous high level of functioning with her current state:
“pre-injury I would read multiple newspapers, be up-to-date on all current affairs, and have read at least one technical document before I got to work each day, and I feel so far for male self, which leads to my depression worsening.
I can no longer spend more than one hour at a time on a computer as I can no longer concentrate for this long without taking breaks. Pre-injury I could work up to 14 hours straight unassisted on a computer or in paperwork.
In terms of persistence and pace I am often late or I [miss] appointments completely, I only have on average 2-3 appointments per month, a[t] present I struggle to keep these recurring appointments.”
Dr Orum commented:
“In my opinion, Natalie’s self assessments in that report are accurate, and match with my own observations of her across the last four years. It has been a long battle to assist Natalie to gather herself together to produce her Statement – despite her sincere wish to do so, and the fact that producing it has been a vital step in making her own case.”[6]
[6] Statement dated Application for Assessment by an Approved Medical Specialist, Page 94.
The appellant further noted that both Dr Clark and Dr Smith in their respective assessments of impairment assessed Ms Miller as falling within Class 3 (moderate impairment) in respect of this area of function. Dr Clark recorded; “Unable to carry out tasks. From a psychiatric perspective, this is a moderate impairment.”[7]
[7] Report dated 29 July 2020.
Dr Clark set out the relevant portions of the guidelines with respect to this area of function:
“Class 1: No deficit or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
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 up to 30 minutes, e.g. then feels fatigued or develops headache.
Class 3: Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions, e.g. operating manuals, building plans, make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4: Severe impairment. Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone or needs regular assistance from relatives or community services.
Class 5: Severe impairment. Totally impaired. Needs constant supervision and assistance within institutional setting.”
In his earlier report dated 29 August 2016 Dr Clark reported:
“She is quite overwhelmed at times and shows some pressured speech and agitation but she has not had any antidepressant treatment. She cannot multitask as she did, as she put it. She avoids the news and concentration is impaired. This is a moderate impairment on psychiatric grounds alone”.
Dr Smith reported “Ms Miller stated that she finds it difficult to read and persist with tasks due to her anxiety and depressive symptoms.”[8] In the PIRS Table Dr Smith recorded: “Ms Miller stated that she finds it difficult to read and persist with tasks due to her anxiety and depressive symptoms. She performed poorly on tests of short-term memory and concentration.”
[8] report dated 19 May 2020.
In his earlier report dated 10 November 2016 Dr Smith recorded:
“Ms Miller reported that her concentration has been impaired that she now tends to read online material only and watch YouTube videos online. She stated that she is able to watch movies and concentrate for the entire movie. She reported being unable to focus on intellectually demanding tasks.”
The appellant submitted that the Medical Assessor “had failed to consider the consistent reporting of the appellant to Dr Clark and Dr Smith, which spoke to the appellant’s level of functioning over time, which ignores significant and consistent medicolegal evidence and consistent self reporting.” The appellant referred to other references to the appellant’s capacity to function appearing in Ms Miller’s statements in evidence and noted that both
Dr Clark and Dr Smith had assessed Ms Miller as falling within Class 3 in this area of function.The appellant noted that the Guidelines required consideration of the worker’s statements and medical reports and that “evaluation of impairment will need to take into account variations in the level of functioning over time.”
The appellant submitted that the only available conclusion in the light of the evidence was that Ms Miller suffered a moderate impairment with regard to the area of function “concentration persistence and pace”.
The respondent submitted that it was open to the Medical Assessor to assess Ms Miller as falling within Class 2. The respondent noted the decision in Ferguson v State of New South Wales[9] (Ferguson) where Campbell J said at [24]: “there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense”.
[9] [2017] NSWSC 887.
The respondent noted that, in Ferguson, Campbell J cited with approval NSW Police Force v Daniel Wark[10], where it was stated at [33]:
“...the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. ...”
[10] [2012] NSWWCCMA 36.
The respondent noted paragraph 1.6 of the Guidelines: “assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available medical information…”
The respondent drew attention to the fact that the Medical Assessor had noted the opinion of Dr Clark which did not accord with the Medical Assessor’s assessment on the day of examination. The respondent also drew attention to Ms Miller’s statements, accepting that they may have resulted from a “long battle”, but nevertheless providing evidence not inconsistent with inclusion in Class 2.
The Panel accepts that the Medical Assessor came to a different conclusion to Dr Clark and Dr Smith with respect to the area of function “concentration persistence and pace”. The Medical Assessor discussed the reports of Dr Clark and Dr Smith but the Panel accepts that the Medical Assessor was entitled to form his own clinical judgement in the light of the available evidence, which included his observations of the functioning of Ms Miller during the course of the two hour examination.
It is apparent from the statements of Ms Miller which were in evidence that Ms Miller was able to function at a high level prior to injury. The statements prepared by Ms Miller may well have been difficult to prepare, but the difficulties encountered by Ms Miller have not prevented her from presenting statements that demonstrate an ability to recall detail and appropriately recount a complex history. It was open to the Medical Assessor to accept that the statements themselves provided some measure of support to the impression that he formed upon clinical examination.
The Panel accepts that the ability to listen, process and recall which was demonstrated by Ms Miller in providing a history to the Medical Assessor were entitled to be given substantial weight by the Medical Assessor in forming his assessment. While the Panel accepts that the task of recounting the history and her symptoms may have involved great difficulty for
Ms Miller, she was nevertheless able to overcome those difficulties so as to provide a coherent accurate account.The Panel accepts the submissions of the respondent that assignment of Class 2 was not necessarily contrary to the evidence before the Medical Assessor. Ms Miller was able to spend up to an hour on the computer and had the ability to produce lengthy and detailed statements although with difficulty. That is consistent with the observations made by the Medical Assessor upon examination.
The Panel accepts that the Medical Assessor was entitled to give substantial weight to his observations on examination. The Panel accepts that the Medical Assessor has considered the statements of the appellant and the medical reports in evidence and has weighed those against his own observations upon examination in arriving at his assessment. It was appropriate that the Medical Assessor do so and the Panel is satisfied that there has been no application of incorrect criteria or demonstrable error made out with respect to the assessment of this area of function. The grounds of appeal in respect of the area of function concentration, persistence and pace are not made out.
Treatment Effect
The appellant submitted that the Medical Assessor had failed to take into account treatment effects which had been assessed by Dr Clark as warranting a further 1% WPI assessment. The Medical Assessor had noted the “psychotropic medication” taken by Ms Miller but had not assessed any additional impairment for the effects of treatment and the appellant submitted:
“Therefore Dr Mason has failed to take into account the effects of the appellant’s psychotropic medication, which the appellant submits would entitle her to a further 1% whole person impairment. In effect Dr Mason failed to apply and consider paragraph 2.5 g of the AMA Guides to the Evaluation of Permanent Impairment and Clause 11.8 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment”.
Paragraph 2.5g of AMA5 provides:
“Adjustment for Effects of Treatment or Lack of Treatment
In certain instances, the treatment of an illness may result in apparently total remission of the person’s in signs and symptoms. Examples include the treatment of hypothyroidism with levothyroxine and the treatment of type I diabetes mellitus with insulin. Yet it is debatable whether, with treatment, the patient has actually regained the previous status of normal good health. In these instances, the physician may choose to increase the impairment estimate by small percentage (e.g., 1% to 3%).”
Paragraph 11.8 of the Guidelines provides:
“Effects of treatment
Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”
The respondent in reply drew attention to the provisions of Paragraph 1.32 of the Guidelines which provides:
“Where the effect of long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%.”
The Panel accepts that the addition of a further assessment of impairment for the effects of treatment requires evidence of “apparent substantial or total elimination of the claimant’s permanent impairment”. The Guidelines state that the Medical Assessor “may” comment on the effects of treatment but is not obliged by the Guidelines to do so.
It is apparent from the evidence before the Medical Assessor and from the observations of the Medical Assessor on the day of examination that there had been no “apparent substantial or total elimination” of Ms Miller’s level of impairment.
In 2016 Dr Clark had assessed Ms Miller as having 15% WPI whereas by 2020 he felt that her impairment had risen to 22% WPI. Dr Clark, in his assessment made in 2020, included an additional 1% WPI for treatment effect. It is difficult to see how Dr Clark was able to conclude that there had been “apparent substantial or total elimination” of impairment where, in the opinion of Dr Clark, the level of impairment had increased from 15% to 22%. It was open to the Medical Assessor to give no weight to that aspect of Dr Clark’s assessment.
Dr Smith in 2016 had assessed Ms Miller at 7% WPI but in 2020 had assessed her as having 17% WPI. The reports of those independent medical experts provide no support for a finding of substantial or total elimination of the impairment.
Similarly, the history recorded by the Medical Assessor upon examination and his mental state examination provided no basis for a finding of substantial or total elimination of the impairment. The assessment by the Medical Assessor of 19% WPI was wholly inconsistent with such a finding.
The Panel is satisfied that the evidence available to the Medical Assessor and his report of his observations on examination provide no basis upon which an assessment in respect of effects of treatment could be made, other than the addition of 1% by Dr Clark which does not appear to be supported by the evidence available to him. The finding of 19% WPI arising from the subject injury after nearly six years speaks for itself in this regard.
Accordingly the Panel is satisfied that, apart from the additional 1% assessed by Dr Clark, there was no evidence which would support a finding of “apparent substantial or total elimination” of a psychological impairment as result of the effects of treatment and the Medical Assessor did not fall into error by not specifically addressing the issue when the overall level of assessment clearly demonstrated that no such finding could be made. The Panel is satisfied that the grounds of appeal in respect of “treatment effects” have not been made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 March 2021 should be confirmed.
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