Neal v Impact Care Solutions Ltd
[2024] NSWPICMP 787
•22 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Neal v Impact Care Solutions Ltd [2024] NSWPICMP 787 |
| APPELLANT: | Kellindy Neal |
| RESPONDENT: | Impact Care Solutions Limited |
| APPEAL PANEL | |
| MEMBER: | Jacqueline Snell |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 22 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant essentially submitted the Medical Assessor (MA) erred in his assessment in the psychiatric impairment rating scale (PIRS) category of social functioning and did not provide reasoning for disagreement with the assessments of the independent medical examiners (IMEs) in the PIRS category of social functioning; erred in his assessment in the PIRS category of concentration, persistence and pace; erred in his assessment in the PIRS category of employability and did not provide reasoning for disagreement with IMEs’ assessment in the PIRS category of employability; Medical Appeal Panel (Panel) accepts the MA was in error in his assessment in the PIRS category of employability in that the Panel is of the view the evidence supports assessment of moderate impairment and a rating of Class 3; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 August 2024 Kellindy Neal (also known as Kellindy Price and Kellindy Houghton), (Ms Neal) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 July 2024.
Ms Neal relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Neal made a claim for permanent impairment compensation resulting from psychological injury arising out of or in the course of her employment with Impact Care Solutions Limited (Impact Care Solutions), with the deemed date of injury being 30 November 2020. An Application to Resolve a Dispute was lodged with the Personal Injury Commission (Commission) and a Reply was lodged with the Commission in response. On 13 June 2024 the Commission referred Ms Neal’s claim to a Medical Assessor.
The Medical Assessor examined Ms Neal on 25 June 2024 and the MAC in which the Medical Assessor assessed with Ms Neal as having sustained 6% whole person impairment (WPI) resulting from her psychological injury issued on 10 July 2024.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Neal to undergo a further medical examination because although the Appeal Panel considered the MAC contains a demonstrable error, the Appeal Panel did not consider correction of the error required further medical examination.
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.
Further medical examination
Neither Ms Neal nor Impact Care Solutions sought a further medical examination of Ms Neal. The Appeal Panel determined it was not necessary for Ms Neal to undergo a further medical examination because although the Appeal Panel considers the MAC contains a demonstrable error, further medical examination of Ms Neal is not required to enable correction of the error.
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, Ms Neal submits:
(a) the Medical Assessor erred in his assessment in the Psychiatric Impairment Rating Scales (PIRS) category of social functioning;
(b) the Medical Assessor erred in failing to provide his reasoning for disagreement with the independent medical examiners’ assessment in the PIRS category of social functioning;
(c) the Medical Assessor erred in his assessment in the PIRS category of concentration, persistence and pace;
(d) the Medical Assessor erred in his assessment in the PIRS category of employability, and
(e) the Medical Assessor erred in failing to provide his reasoning for disagreement with the independent medical examiners’ assessment in the PIRS category of employability.
In reply, Impact Care Solutions submits:
(a) the Medical Assessor has not erred in his assessment of the PIRS category of social functioning, with his assessment being appropriate;
(b) the Medical Assessor has not erred in failing to provide his reasoning for disagreement with the independent medical examiners’ assessment in the PIRS category of social functioning, with his reasons being adequate;
(c) the Medical Assessor has not erred in his assessment in the PIRS category of concentration persistence and pace;
(d) the Medical Assessor has not erred in his assessment in the PIRS category of employability, and
(e) the Medical Assessor has not erred in failing to provide his reasoning for disagreement with the independent medical examiners’ assessment in the PIRS category of employability, with his reasons being adequate.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
Review of the MAC
The Medical Assessor assessed Ms Neal on 25 June 2024. The Medical Assessor recorded a date of injury of 30 November 2020. The Medical Assessor noted Ms Neal had, together her sister, grown up in foster care, with kind and loving foster parents. The Medical Assessor noted that Ms Neal also had a younger half-sister, who was also placed in care, but with whom she had little contact. The Medical Assessor noted that at about the age of 17 years, Ms Neal located both her birth parents, who reportedly suffered from an opiate use disorder, with Ms Neal reporting “she suffered her first episode of major depressive disorder at about the same time.” The Medical Assessor noted that Ms Neal’s teenage son, being her first-born son, now resided “by choice” with his father, Ms Neal’s relationship with her son’s father having ceased in about 2014.
The Medical Assessor recorded a history of Ms Neal having commenced employment with Impact Care Solutions in about 2016 and having suffered a relapse in her major depressive disorder in about 2017, with continuing deterioration. The Medical Assessor recorded that Ms Neal was sexually abused by a 14-year-old youth for whom she was providing care, who was subsequently charged. With Ms Neal becoming pregnant, while Ms Neal was moved from that particular accommodation, when she came back from maternity leave, she returned to the accommodation where she was rostered to again work with the same youth “in a one-to-one shift.” With the youth making threats to “enact sexual violence” towards her, Ms Neal was unable to continue working with Impact Care Solutions and “left the employment in a significant state of depression.”
The Medical Assessor reported:
“The claimant demonstrated resilience and attempted to continue to work in a self-employed role. She commenced work as a sole trader. She changed the structure of her work to that of a sole director of a private business. This business operations manager mangers the staff to service the clients as well as overseeing client care. The claimant worked in her role as director. When the business had 9 clients she was documented as working 10-20 house per week. The number of clients at the time of this assessment was 18 and she was spending more time in administrative work, either from her home or parttime in the business office.”
The Medical Assessor described Ms Neal’s current symptoms to include:
(a) depressed mood;
(b) poor quality sleep with persistent initial insomnia and middle insomnia with early morning wakening;
(c) loss of interest in her career as a youth worker;
(d) low energy with raid onset of fatigue;
(e) depressive ruminations and becoming emotionally overwhelmed with loss of trust in her employer;
(f) loss of motivation and interest in her son’s development;
(g) social withdrawal from her general community, with her best friend sustaining their relationship;
(h) poor concentration with difficulty planning and persisting, with slow completion of complex tasks as well as filing in complex forms, writing and reading, and
(i) reduced libido and intimacy.
The Medical Assessor diagnosed Ms Neal with Major Depressive Disorder – recurrent episode and relevantly said of defining criteria for such diagnosis:
(a) Ms Neal experienced depressed mood most of the day, nearly every day’
(b) Ms Neal had markedly diminished interest in all her prior activities including her capacity to fully maximise her career, care of her children and support her family emotionally and financially;
(c) Ms Neal experienced fatigue with loss of energy nearly every day;
(d) Ms Neal had a diminished ability to concentrate and think resulting in marked indecisiveness during the assessment;
(e) Ms Neal’s injury caused clinically significant distress, resulting in an inability to work for Impact Care Solutions and significant deterioration in her relationship with her husband and the father of her young daughter, now aged about four;
(f) Ms Neal’s injury was not attributable to her past medical history;
(g) Ms Neal’s injury was not attributable to schizo-affective disorder, schizophrenia, schizophrenform disorder, delusional disorder or other specified and unspecified schizophrenia spectrum and other psychotic disorders, and
(h) Ms Neal had never had a manic or hypomanic episode.
Regarding Ms Neal’s general health, the Medical Assessor relevantly recorded particulars relevant to Ms Neal’s social functioning, concentration, persistence and pace, and employability, being the PIRS categories with which Ms Neal quibbles.
Relevant to Ms Neal’s functioning, the Medical Assessor noted:
(a) Ms Neal had not lost her friendship with her best friend who visited in order to attend and maintain Ms Neal’s hair colour and nails;
(b) Ms Neal reported tension in her relationship with her husband, having married in 2022;
(c) Ms Neal reported a diminished in interest in her son’s progress and did not participate in his recreational activities, and
(d) Ms Neal reported reduced contact with her mother.
Relevant to Ms Neal’s concentration, persistence and pace, the Medical Assessor noted:
“The claimant was able to concentrate for up to 20 minutes prior to resting. She was responsible for the completion of complex forms required for the administration of her business. She was slower in her pace of form completion. The claimant reported she did not make many errors as she was slow and cautious in her business.”
Relevant to Ms Neal’s employability, the Medical Assessor noted:
“The claimant was the director of her business. She had a fulltime business operations who would report to the claimant. The business had grown to 18 clients. The claimant reported that she could work more than 20 hours per week, dispersed over different times of the day. The claimant reported she was too slow in her response to business enquiries to maximise all of the available new clients.”
The Medical Assessor’s findings on mental state examination included reference to Ms Neal’s concentration, persistence and pace and her employability. The Medical Assessor relevantly said of Ms Neal:
“Her speech was at times slow, and she complained of slowed thinking and indecisiveness in decision making. She explained that when her concentration failed, she would require time to settle. She reported her form filing and essential administration was slower… She stated her work was no longer enjoyable as it was prior to the onset of this primary psychological injury… she said she had lost trust in employers and had chosen to become self-employed, so she was in control of her work role.”
In providing his assessment of Ms Neal’s whole person impairment, the Medical Assessor provided opinion:
“In my opinion the claimant had a mild whole person impairment as assessed using the psychiatric impairment rating scale (PIRS) at the time of this assessment. I note that the claimant had suffered from a mild major depressive disorder prior to this primary psychological injury. From careful consideration of the forwarded documents as well as the findings of this assessment, I note that no adjustment in the claimant’s whole person impairment for treat effect is reasonable.
In my opinion the claimant had a mild impairment assessed at 7% whole person impairment.
The claimant did have a pre-existing psychiatric or psychological condition. There was a one tenth adjustment made for the pre-existing condition.
The assessment of whole person impairment is as follows:
PIRS assessment of whole person impairment 7% WPI with no addition of treatment effect produces 7% whole person impairment (WPI). Minus one tenth (1/10) for pre-existing condition produces 6% WPI.”
Relevant to his assessment of the PIRS category of social functioning, which he assessed to be Class 2, the Medical Assessor provided the following reasons for his decision:
“The claimant had commenced a relationship with the father of her daughter about six years prior to this assessment in 2018. She was married in 2022. She reported tension in her relationship with her husband.
The claimant had an elder son to her first union. Her son was living with his father. She reported she was less interested in his progress as he was spending most of his time with his teenage friends.
The claimant had reduced contact with her mother as her mother was unable to support the claimant since the onset of this primary psychological injury.
The claimant reported she had not lost her best friendship since the onset of this primary psychological injury.”
Relevant to his assessment of the PIRS category for concentration, persistence and pace, which he assessed to be Class 2, the Medical Assessor provided the following reasons for his decision:
“The claimant was able to concentrate up to 20 minutes prior to resting. She was responsible for the completion of complex forms required for the administration of her business. She was slower in her pace of form completion. The claimant reported she did not make many errors as she was slow and cautious in her business.”
Relevant to his assessment of the PIRS category for employability, which he also assessed to be class 2, the Medical Assessor provided the following reasons for his decision:
“The claimant was the director of her business. She had a fulltime business operations manager who would report to the claimant. The business had grown again to 18 clients. The claimant reported that she could work more than 20 hours per week, dispersed over different times of the day. The claimant reported she was too slow in her response to business enquiries to maximise all of the available new clients.”
In providing comment relevant to the independent medical examiners’ opinions and reasoning as to why his opinion differed, the Medical Assessor relevantly said:
(a) Relevant to opinion provided by Dr Chow:
(i)he did not agree with Dr Chow’s diagnosis, in that the Medical Assessor was of the opinion Ms Neal’s injury was in the nature of aggravation of her pre-existing major depressive disorder, with explanation that Ms Neal was suffered from major depressive disorder for the first time at the age of 17, was treated for a recurrent episode of major depressive disorder prior to her commencement of her employment with Impact Care Solutions and the “sexual abuse” she suffered was clinically significant with the perpetrator being criminally charged.
(ii)However, although the Appeal Panel note that the Medical Assessor said he did not concur with Dr Chow’s assessment of WPI he provided no reasoning, save to say, “I note the psychiatrist has not provided reasons for the adjustment of 1% for treatment effect”.
(b) Relevant to opinion provided by Dr Virk:
(i)he did not agree with Dr Virk’s diagnosis of post-traumatic stress disorder as the symptoms in Dr Virk’s report did not meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM5TR) criteria for post-traumatic stress disorder.
(ii)Again, the Medical Assessor said he did not concur with Dr Virk’s assessment of WPI but provided no reasoning.
Review of Ms Neal’s statement
Ms Neal provided a statement dated 15 May 2024. Ms Neal said she lives with her husband and her daughter. Ms Neal said her son from her previous relationship does not live with her. She explained that her son has felt “let down” because she no longer participates in his hobbies like she used to.
Regarding her social functioning Ms Neal relevantly said:
“I struggle to go and see my friends anymore. A lot of the time I decline requests to go and do things with them. Because of this I’ve lost most of my friends as I don’t keep in contact with them. I no longer see or spend time with my friends or do social engagements like I used to because of my anxiety. My friends have stopped inviting me to things because of me always declining invitations to events and not keeping in contact with them…
I have barely talked to my family over the past year and shut myself out from them when I’m not coping. My husband even has to take my son and daughter for play dates and to social events without me… I keep in contact with people over text messages. This is my only real form of communication and way of catching up with the people. My neighbour is my only form of face-to-face interaction and that is because of our houses. I do not go to her house and nor does she come to mine. I find it very difficult to talk over the phone and prefer text or email…
My relationship with my husband is strained because of my symptoms… My relationship with my eldest son has deteriorated severely due to my symptoms. I can’t leave the house to go and do activities with him anymore has caused problems in our relationship.”
Regarding her concentration persistence and pace, Ms Neal said she struggled to concentrate on daily tasks, became easily anxious which prevented her from completing tasks she commenced and cannot focus properly.
Regarding her current employment Ms Neal said she is unable to work with male clients or work full time, like she did prior to injury. Ms Neal relevantly explained:
“In September 2021 I started working as a sole trader as a disability support worker. I only had 3 clients, and I was able to work around my disabilities.
I regularly had days where I could not work due to my ongoing disabilities as a result of my workplace injury with Impact Care Solutions. This was very disruptive to my business.
I have an accountant that does all my bookwork and record keepings for me, and I only submit invoices for work I do.
In July 2023 I changed from being a sole trader to a Pty Limited company.
The continued disruption to my business due to my disabilities caused me to reevaluate my decision to work on my own and I subsequently made the decision to hire someone to assist me in the running of my business. In October 2023 I employed an operations manager.
Since then, my business has grown, and I currently have approximately 9 employees. I am currently only working approximately 10-20 hours per week.
My current duties include going over invoices and sending them after completed, transferring money for pays after time sheets have been completed and I respond to emails when needed. I also complete general duties in the office such as cleaning. I sometimes sit in on meetings but only when I am feeling up to it. I do the purchasing of our products online and then they are delivered. I do not support any participants anymore”.
Review of the independent medical evidence
Dr Chow
Ms Neal was independently assessed by Dr Chow in his capacity as independent medical examiner. Dr Chow is a psychiatrist. Dr Chow provided reports dated 1 February 2023 and 10 February 2023, 15 months prior to the Medical Assessor’s assessment.
In his initial report, Dr Chow reported a history of injury occurring while Ms Neal was employed with Impact Care Solutions, ceasing work in November 2020, ultimately resigning from her employment in August 2021 and commencing her own business, working in disability work. Dr Chow provided diagnosis of chronic adjustment disorder.
Dr Chow assessed Ms Neal with 18% WPI (which includes 1%WPI for treatment effect).
Relevant to his assessment of the PIRS category of social functioning, which he assessed to be Class 3, Dr Chow provided the following reasons for his decision:
“She hardly sees friends and she has lost a lot of friendships. Relationship with partner is strained due to difficulties but he remains supportive. Relationship with son is strained and her son no longer wants to stay with her. She is more distant with her younger child.”
These reasons contain descriptors from both Class 2 and Class 3 ratings.
Relevant to his assessment of the PIRS category relevant to concentration, persistence and pace which he assessed to be Class 3, Dr Chow provided the following reasons for his decision:
“She is anxious easily. She has concentration and focus difficulties. She is distracted and forgetful easily.”
Relevant to his assessment of the PIRS category relevant to employability, which he assessed to be Class 3, Dr Chow provided the following reasons for his decision:
“She can work as a support worker in a less demanding and less stressful setting
2-3 days a week but with restrictions of female clients and no behavioural difficulties.”In his subsequent report, having had the opportunity to review Dr Virk’s report referred below, while Dr Chow disagreed with Dr Virk’s diagnosis of post-traumatic stress disorder, he agreed that with Ms Neal’s pre-existing psychiatric history and “therefore vulnerabilities” it was appropriate to include one-tenth deduction to his assessment of WPI, and assessed Ms Neal with 16% WPI (which includes 10% deduction for pre-existing psychiatric history and vulnerabilities and 1% whole person impairment for treatment effect).
Dr Virk
Ms Neal was independently assessed by Dr Virk in his capacity as independent medical examiner on 6 May 2023. Dr Virk is a psychiatrist. Dr Virk provided a report dated 5 June 2023.
As did Dr Chow, Dr Virk reported a history of injury occurring while Ms Neal was employed with Impact Care Solutions, with Ms Neal ultimately resigning from her employment in August 2021 and commencing her own business, working in disability work. Dr Virk provided diagnosis of post-traumatic stress disorder.
Following review of Ms Price’s symptoms and “current functioning” Dr Virk assessed Ms Neal’s, concentration, persistence and pace as mildy impaired, and social functioning and employability as moderately impaired.
Relevant to Ms Neal’s social functioning, Dr Virk reported:
“Ms Price reported that she will ignore messages from her mother. She described her husband as being supportive but noted that there had been a strain on their relationship because of her arousal and intrusion symptoms. She also stated that she no longer shares custody of her son with her ex-husband.”
Again, the descriptors match those in Class 2 and Class 3 ratings.
Relevant to Ms Neal’s concentration, persistence and pace, Dr Virk reported:
“Ms Price reported that she struggles to maintain concentration when she is reading or watching television. She stated that worries about running into people and often finds it difficult to focus.”
This noted, it is apparent from Dr Virk’s reporting that Ms Neal remained attentive for the duration of Dr Virk’s assessment of her and did not appear to have any significant recall difficulties.
Relevant to Ms Neal’s employability, Dr Virk reported:
“Ms Price reported that she has been suffering migraines and has been cutting back on work. She stated that she has cut a client recently and is currently working up to 10 hours per week but acknowledged that she was recently working 20 hours per week”.
Dr Virk also said of Ms Neal in response to specific questioning that she “is partially incapacitated from working with male clients and aggressive or unpredictable clients. I also do not believe that she would be able to sustain regular employment doing disability support work for greater than 20 hours a week.”
Dr Virk assessed Ms Neal with 14% WPI (which includes deduction of 10% for pre-existing post-traumatic stress disorder).
Relevant to his assessment of the PIRS category of social functioning, which he assessed to be Class 3, Dr Virk provided the following reasons for his decision:
“Ms Price reported that she will ignore messages from her mother. She described her husband as being supportive but noted that there had been a strain on their relationship because of her arousal and intrusion symptoms. She also stated that she no longer shares custody of her son with her ex-husband.”
Relevant to his assessment of the PIRS category of concentration, persistence and pace which he assessed to be Class 2, Dr Virk provided the following reasons for his decision:
“Ms Price reported that she struggles to maintain concentration when she is reading or watching television. She stated that she worries about running into people and often finds it difficult to focus. She remained attentive for the duration of the review and did not appear to have any significant recall difficulties.”
Relevant to his assessment of the PIRS category of employability, which he assessed to be Class 3, Dr Virk provided the following reasons for his decision:
“Due to her persisting psychological symptoms and associated emotional, cognitive, and interpersonal deficits, Ms Price is capable or working up to 20 hours per week but in a less stressful environment and is also unable to work with certain clients.”
Review of treating medical evidence
Singleton Heights Medical Centre
Ms Neal is under the care of her long-term general practitioner Dr Marshall, who practises out of Singleton Heights Medical Centre. In a report dated 20 October 2023 Dr Marshall confirmed Ms Neal’s history of depressive and anxiety symptoms “intermittently over the years” with a vulnerability to psychological distress and provided opinion Ms Neal’s diagnosis was in the nature of adjustment disorder.
Dr Marshall’s clinical records demonstrate that Ms Neal presented in early 2017 with interpersonal and relationship difficulties described as “depression” and later “work stress” and “some job anxiety”. They document the specific difficulties Ms Neal experienced which led to her sustaining primary psychological injury in the course of her employment with Impact Care Solutions.
Dr Marshall’s clinical records also demonstrate Ms Neal’s early struggles with her son following her separation from his father and in recent times, while when reviewed on 5 May 2022 Dr Marshall described Ms Neal as “Working every day. Well. Managing new business”, when last reviewed on 6 September 2022, Dr Marshall diagnosed Ms Neal with anxiety and relevantly noted she avoided going to social gatherings and “cancels same regularly”.
NewPsych Psychologists
Ms Neal has come under the psychological care of psychologist who practise out of NewPsych Psychologists.
The clinical records demonstrate that Ms Neal presented on 4 December 2020 with a history of the circumstances of psychological injury sustained in the course of her employment with Impact Care Solutions, with Johanna Dean noting at that time that Ms Neal’s partner and baby were in the waiting room at the time of Ms Neal’s consultation with her and that she shared care of her son with her ex-partner on a 50/50 basis. On review on 18 December 2020 Leigh Murray recorded encouragement for Ms Neal to “ask partner to go to park/beach w/her some afternoons to go out feeling safe/supported”. On review on 7 January 2021 Ms Dean noted “ongoing tension with ex re custody arrangements, and on 21 January 2021 Ms Murray noted Ms Neal reported “feels disconnected from son a little.” On review on 2 February 2021 Ms Murray recorded “R/ship – feels distant at times, but really wants r/ship to work (fear of losing partner/support” and on 28 April 2021 Ms Murray’s consultation with Ms Neal appears to have mainly focused on Ms Neal’s relationship struggles with her partners. When Ms Neal last presented on 2 June 2021 Ms Murray noted Ms Neal reported “a lot going on & lots of anxiety” but “wants to return to work as likes the structure and sense of purpose.”
Mental Health Wellbeing Clinic
In a report to Dr Marshall relevant to her psychiatric consultation with Ms Neal on 21 June 2021, Dr Barot described Ms Neal as currently in a relationship with a son and a daughter “from different fathers”. At the time of presentation, she relevantly described Ms Neal as panicking in social situations but was “comfortable with the idea of work and has been able to return to doing some work” although in this regard she noted “she is understandably struggling with the idea of working with male clients and I do not believe it would be in her best interests to work with male clients in the future as it is likely to trigger her trauma.” Dr Barot described Ms Neal as having returned to live with her birth mother at the age of 17 as “she felt her foster parents were too strict” but this was not a “good experience”. Dr Barot described Ms Neal as being in her current relationship for some two years with her partner described as “good”. Dr Barot noted Ms Neal’s son lives with his father on a full-time basis “as she can’t handle him" and “she has him every 2nd weekend”.
Legal considerations
Guidelines
Chapter 11 of the Guidelines relevantly lays out the method for assessing psychiatric impairment.
Chapter 11.11 is relevant to PIRS and provides for behaviour consequences of psychiatric disorder to be assessed on six scales, each of which evaluates an area of functional impairment, and relevantly includes social functioning (relationships), concentration, persistence and pace, and employability.
Chapter 11.12 provides for impairment in each area of functional impairment to be rated using class descriptors, with classes ranging from 1-5 according to severity. Examples of activities referred to in the referenced Table 11.1-6 are noted to be “examples only”. Chapter 11.12 also provides that the assessing psychiatrist should take account of the injured worker’s cultural background and consider activities that are usual for their age, sex and cultural norms.
Table 11.4 relevantly provides PIRS rating scale Class 2:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member.”
Table 11.5 relevantly provides PIRS rating scale Class 2:
“Mild impairment: can undertake a basic retraining course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes, then feels fatigued or develops headache.”
Table 11.6 relevantly notes PIRS rating scale Class 2:
“Mild impairment: able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (e.g. no longer happy to work with specific persons, or work in specific location due to travel required).”
Authorities
At this point it useful to note some authority we consider to be central to complaint made by Ms Neal relevant to the Medical Assessor’s assessment in the PIRS category of social functioning, concentration persistence and pace, and employability and lack of reasoning relevant to his differing in assessment in the PIRS category of social functioning and employability to that of the independent medical examiners.
In Ferguson v State of New South Wales[1] the court cited with approval NSW Police Force v Daniel Wark[2]. In Ferguson the referred to Wark and noted that the Appeal Panel had directed itself that in questions of classification under the PIRS:
“ ‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significant 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’.
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the Approved Medical Specialist was unaware of significant factual matters, if a clear misunderstanding could be demonstrated; of if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense”.
[1] [2017] NSWSC 140 (Ferguson).
[2] [2012] NSWCCMA 36 (Wark).
In Nikolovski v McDonalds Australia Limited[3] the Appeal Panel appointed in that particular matter noted:
“A Medical Assessor takes various sources of information into account when rating concentration, persistence and pace. One important source is the interview itself, when the Medical Assessor can directly observe the worker’s capacity during the lengthy examination.”
[3] [2021] NSWPICMP 192 (Nikolovski).
We are mindful too that the task of the Medical Assessor was described by the court in State of New South Wales v Kaur:[4]
“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…”
[4] [2016] NSWSC 346 (Kaur).
We are also mindful that justification of intervention by an Appeal Panel such as ours was also discussed by the court in Ferguson:[5]
“The Appeal Panel accepted that intervention was only justified: if the categorization was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ’examples only’: see Jenkins v ambulance Service of New South Wales[6]. The Appeal Panel said, ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[5] [2017] NSWSC 140 (Ferguson).
[6] [2015] NSWSC 33.
The matter of Ferguson was cited with approval by the court in Parker v Select Civil Pty Limited.[7]
[7] [2018] NSWSC 140.
In determining Ms Neal’s appeal, we are mindful that in Campbelltown City Council v Vegan[8] the Court of Appeal held that the Appeal Panel is obliged to give reasons. While where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based and where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[8] [2006] NSWCA 284.
Discussion
The Appeal Panel considers the MAC to be thorough. Although the Appeal Panel notes the Medical Assessor did not specifically explain the reasons for any disagreement with the independent medical examiners, his conclusions are otherwise well-reasoned.
It is evident the task of the Medical Assessor was to assess Ms Neal as she presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines. The authorities are clear as regards this task of the Medical Assessor.
The Appeal Panel does not accept Ms Neal’s submission the Medical Assessor erred in his assessment in the PIRS category of social functioning. The Appeal Panel is of the view the Medical Assessor clearly explained his path of reasoning relevant to his assessment of Class 2 for the PIRS category of social functioning and has not erred in his assessment in the PIRS category of social functioning.
The Medical Assessor described Ms Neal’s symptoms on presentation to include “loss of motivation and interest in her son’s development” and “social withdrawal from her general community, with her best friend sustaining their relationship”. The Medical Assessor identified Ms Neal’s psychological injury has resulted in a deterioration in her relationship with her husband. The Medical Assessor noted Ms Neal reported reduced contact with her mother. In explaining his path of reasoning relevant to his assessment of Class 2 for PIRS category of social functioning, the Medical Assessor considered Ms Neal’s reported tension in her relationship with her husband, but no evidence of separation or domestic violence, her lack of interest in her teenage son’s progress, who was now living with his father and spending most of his time with his friends, and her reduced contact with her mother. The Medical Assessor also noted the maintenance of Ms Neal’s relationship with her best friend. He recorded one of her children lives with her ex-spouse “by choice” but conversely her younger daughter resides with her. While the relationship with one member of her immediate family may possibly match one of the Class 3 rating if arising as a result of her impairment rather than by his choice, otherwise her relationships and overall social function clearly fit a Class 2 rating.
While Dr Chow and Dr Virk provided assessments of Class 3 for the PIRS category of social functioning, the Medical Assessor is required to undertake his own assessment of the PIRS category of social functioning on the day of assessment, which he did. While Dr Chow also reported in February 2023 Ms Neal “is more distant with her younger child”, this is not reflected in the clinical records, nor Dr Virk’s reporting the following month or Ms Neal’s statement in May 2024.
The Appeal Panel does not accept Ms Neal’s submission the Medical Assessor erred in his assessment in the PIRS category of concentration, persistence and pace. The Appeal Panel is of the view the Medical Assessor has again explained his path of reasoning relevant to his assessment of Class 2 for the PIRS category of concentration, persistence and pace and has not erred in his assessment in the PIRS category of concentration, persistence and pace, which is consistent with that of Dr Virk.
The Medical Assessor described Ms Neal’s symptoms on presentation to include “poor concentration with difficulty planning and persisting, with slow completion of complex tasks as well as filling in complex forms, writing and reading.” The Medical Assessor identified Ms Neal’s psychological injury has resulted in a “marked indecisiveness during the assessment.” In explaining his path of reasoning relevant to his assessment, the Medical Assessor considered Ms Neal’s reported ability to complete complex forms without error in the context of her business (albeit at a slow pace).
While Dr Chow provided assessment of Class 3 for the PIRS category of concentration, persistence and pace, as noted, the Medical Assessor is required to undertake his own assessment of the PIRS category of concentration, persistence and pace, which he did. While in February 2023 Dr Chow also described Ms Neal as “distracted and forgetful easily”, this is not reflected in the clinical records which identify no cognitive difficulties in 2021-2022 which are the latest provided, nor in Dr Virk’s report in March 2023, or Ms Neal’s statement in May 2024.
However, the Appeal Panel accepts Ms Neal’s submission that the Medical Assessor erred in his assessment of the PIRS category of employability. The Appeal Panel is of the view that although the Medical Assessor has explained his path of reasoning, his relevant comments regarding employability are in keeping with a moderate impairment or Class 3 for the PIRS category of employability. The Appeal Panel is of the view the Medical Assessor has not adequately engaged with the evidence and Medical Assessor has provided a conclusion which is at odds with the Guidelines. In other words, the Appeal Panel is of the view the Medical Assessor’s conclusion in this particular domain is glaringly improbable.
The Medical Assessor reported that at the time of his assessment of Ms Neal, the business that Ms Neal commenced after she ceased working with Impact Care Solutions had 18 clients and she had hired an operations manager. The Medical Assessor reported of Ms Neal that “she was spending more time in administrative work, either from her home or part-time in the business office.” The Medical Assessor noted that while Ms Neal reported she could work more than 20 hours each week “dispersed over different times of the day”, she said she was too slow in responding to business enquiries to maximise all the available new clients.
In explaining his path of reasoning relevant to his assessment of the PIRS category of employability, the Medical Assessor considered Ms Neal’s ability to grow her business with a full-time operations manager to 18 clients, with reported inability to maximise all available new clients due to her slowness in responding to business enquiries, and also Ms Neal’s reported ability to work more than 20 hours each week.
The Appeal Pane noted although Ms Neal is able to work more than 20 hours a week and continues to work in the disability sector, she has been restricted in the type of clients she can work with in person since her injury, and no longer undertakes clinical work. The Medical Assessor noted Ms Neal “did not herself attend or provide services to clients.” In other words, Ms Neal is working in a qualitatively different role than that when she was working with Impact Care Solutions.
In February 2023, Dr Chow provided opinion Ms Neal could work “as a support worker in a less demanding and less stressful setting 2-3 days a week but with restrictions of female clients and no behavioural difficulties.” Dr Virk provided an opinion a month later Ms Neal was “capable of working up to 20 hours a week in a less stressful environment and is also unable to work with certain clients”. When Ms Neal was assessed by both these independent medical examiners, she was working as a Disability Support Worker working “no more than 20 hours” and with an inability to work with certain male clients or undertake overnight duties. While in her statement in May 2024 Ms Neal’s description of her business work duties with “approximately 9 employees”, including an operations manager, suggest a venture with some limited success and the most recent clinical records in the evidence demonstrate that in 2020 she was working on five days each week, there is no record of her working full-time, rather than around 20 hours over five days. As such, none of this evidence demonstrates Ms Neal’s function in the category of employability fulfilled either the two key descriptors for a Class 2 rating, being that of “working full time but in a different environment”, or working “in the same position” but with some restrictions.
As noted, it is the view of the Appeal Panel that the Medical Assessor’s comments relevant to Ms Neal’s employability and the evidence relevant to Ms Neal’s employability are in keeping with a moderate impairment or Class 3 rating rather than a Class 2 rating.
CONCLUSION
The Appeal Panel accepts that intervention by the Appeal Panel is justified in Ms Neal’s case.
In the categories of social functioning and concentration, persistence and pace, the Appeal Panel is not of the view (a) the categorisations of the Medical Assessor were glaringly improbable; (b) it could be demonstrated that the Medical Assessor was unaware of significant factual matters; (c) it could be demonstrated that there was a clear misunderstanding, or (d) an unsupportable reasoning process could be made out.
However, the Appeal Panel is of the view the Medical Assessor erred in the category of employability. Regarding employability, the Appeal Panel is of the view the Medical Assessor’s conclusions are glaringly improbable with an unsupportable reasoning process. Regarding the category of employability, the Medical Assessor’s assessment of a mild impairment and a rating of Class 2 is discarded and substituted by the Appeal Panel with moderate impairment and a rating of Class 3.
For the reasons referred above, the Appeal Panel revokes the MAC, and the new certificate is attached to this statement of reasons. The ratings are 2,2,2,2,3 and 3, resulting in Median Class 2, with calculation of an aggregate score of 14, with WPI being 7% WPI. Following one-tenth deduction for pre-existing condition, the final WPI is 6% WPI.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
Matter Number: | W4049/24 |
Applicant: | Kellindy Neal |
Respondent: | Impact Care Solutions Limited |
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 John Baker and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| psychological injury | Chapter 11 Pages | - | 7% | 1/10th | 6% | |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent impairment for injuries received after 1 January 2002.
0
7
0