Norman v Sydney Trains
[2024] NSWPICMP 170
•21 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Norman v Sydney Trains [2024] NSWPICMP 170 |
| APPELLANT: | Stephen Norman |
| RESPONDENT: | Sydney Trains |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 21 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in her assessment with respect to the psychiatric impairment rating scale (PIRS) category of concentration, persistence, and pace; the Panel agreed; the MA’s assessment of a class 2 rating was inconsistent with her own assessment and all of the evidence; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 November 2023 Stephen Norman (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Surabhi Verma, a Medical Assessor who issued a Medical Assessment Certificate (MAC) on 30 October 2023.The appellant 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).
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 the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
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 erred in her assessment with respect to the psychiatric impairment rating scale (PIRS) category of concentration, persistence, and pace (cpp).
In reply, the respondent submits that the conclusions reached by the Medical Assessor were available to her based on the material provided to her and the appellant’s presentation on assessment, and that no errors were made.
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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 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.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a date of injury of 13 October 2021.
After setting out a detailed history of the circumstances surrounding the injury, the Medical Assessor noted present symptoms as follows:
“Mr Norman reported that the psychological interventions and medications do not seem to have helped him much. He said that he does not feel like ‘himself’ anymore. He continues to be teary and still cannot talk about work without feeling emotionally drained. He always thinks about his job and his career and how it would have been if he was not subjected to sexual abuse and was supported by his employers. He further added that he has lost his identity and no longer knows who he has become.
He said that his appetite fluctuates. He has gained about 10 kg, which he attributed to the medication. He also has disturbed sleep. He reported that he often ruminates about his workplace incidents and cannot go to sleep. He ‘thrashes his legs’ in his sleep, so his wife has to sleep in another room. He gets bare minimum of sleep and gets up at 5:00 in the morning.
Mr Norman is not motivated to socialise and does not feel like meeting anyone. He feels ashamed of having to meet others and talk about his workplace issues. His energy levels are poor, and he often copes by drinking beer.
He said he panics when someone calls him up as he always catastrophises that something might have gone wrong. He is in a state of persistent anxiety and does not seem to get any respite from it. He avoids going out and often stays in his home. He said, ‘he is a prisoner in his own house.’ Mr Norman reported that he does not know what he wants to do in the future. He said he would want to trust and rely on people but now struggles to trust anyone. He added that he gave ‘110%’ and never disciplined for anything, and has done his job ‘to the T.’ He said that he cannot plan for the future and feels hopeless about his future. He feels miserable, gloomy, and sad and considers himself ‘a failure.’ He said that everybody knew him as a worker and a leader, and now he is ‘nothing’.”
The Medical Assessor then set out details of Mr Norman’s general health before turning to consider his activities of daily living, and said:
“He reported that he showers and changes into clean clothes almost every day. He, however, spends a lot of time in his shed thinking about what has happened to his life. He added that he helps out his wife and does house maintenance so that he can be active and get distracted from his thoughts.
He stated that he used to enjoy surfing, cruising with the motorcycle, and used to exercise regularly. He said that he used to meet his friends almost every fortnightly. He said that he has not surfed or driven in the last two years. He does not go out anymore, and his wife gets angry. He said that he feels ashamed to go out and see his friends and often thinks about what would happen if they talked about his employment. He last met his friends about two years back. He said that his friends try to contact him, but he has been socially avoidant, and he never responds to their call.
His wife drives him to Wollongong to the psychiatrist. He is able to drive to close shops near his home. He said he had an accident in Wollongong and has been unable to drive on the busy road since then.
He said that his mental health and social isolation has impacted his relationship with his wife…
He reported that his attention and concentration is bad. He forgets and often misplaces things. He said that when he tries to do maintenance work around the house, he struggles and has to slow down. He then often drinks out of frustration. He is, however, able to do simple chores, but when doing complicated tasks, he struggles. He often watches TV, but he said that he just stares at the TV and does not understand the storyline.
Mr Norman does not have any capacity to engage in any meaningful employment because of his current difficulties.
He wakes up at around 5:00 am and then starts pacing in the backyard and front yard. He then tries to find something to do to distract himself like mowing, hedging, and washing his car. He said that he often drinks beer throughout the day and at times has conflicts with his wife because of the above.”
Findings on mental state examination were reported as follows:
“I reviewed Mr Norman via video. He engaged well during the assessment and was cooperative. He presented as a gentleman of the stated age. He was wearing a grey shirt and was unshaven. He was teary most of the time but was able to be comforted. He gave a clear account of his symptoms and difficulties. He reported his mood to be low and depressed and often ruminating about what had happened in the past. His affect was dysphoric and was congruent to the mood described. His speech was spontaneous and normal in volume and tone. His thoughts were logical and goal-directed. He currently reports ongoing negative ruminations about his workplace incidents. There was no evidence of any manic, psychotic, or any perceptual abnormalities.”
The Medical Assessor diagnosed: “Exacerbation of Major depressive disorder and alcohol use disorder”. She added: “Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)”.
The Medical Assessor noted that Mr Norman had “a past history of depression which has not responded well to the medications”.
She assessed 8% WPI from which she deducted one-tenth for the prior condition, but this is not the subject of appeal.
The Medical Assessor then turned to consider the other medical evidence and documents she had before her. Relevantly, she noted:
“I have also noted IME by Dr Robert Gertler dated 1 April 2022. He opined that ‘In my opinion, Mr Norman is suffering from a major depressive disorder.’ I noted that he calculated the whole person impairment as 19%. Kindly note that my assessment differs from Dr Gertler’s assessment in the following areas:…
Concentration, persistence, and pace. Dr Gertler reported moderate impairment, class 3. I believe, however, he has mild impairment. I have noted that he had a motor vehicle accident but that was a one-off incident. He is unable to do complicated chores but he, however, is able to do simple tasks.”
Discussion
In assessing a Class 2 rating, the Medical Assessor said:
“He reported that his attention and concentration is bad. He forgets and often misplaces things. He said that when he tries to do maintenance work around the house, he struggles and has to slow down. He then often drinks out of frustration. He is, however, able to do simple chores but when doing complicated tasks, he struggles. He often watches TV but he said that he just stares at the TV and does not understand the storyline.”
The descriptor for a Class 2 reads: “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 then feels fatigue or develops headache.”
For a Class 3 it reads: “Moderate impairment: unable to read more than a newspaper article. 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 clothes, tapestry or knitting.”
The descriptors, or examples, describing each class of impairment in the various categories are “examples only.” See Ferguson v Stateof New South Wales [2017] NSWSC 887.
The Medical Assessor said:
“He reported that his attention and concentration is bad. He forgets and often misplaces things. He said that when he tries to do maintenance work around the house, he struggles and has to slow down. He then often drinks out of frustration. He is, however, able to do simple chores but when doing complicated tasks, he struggles. He often watches TV but he said that he just stares at the TV and does not understand the storyline.”
On her own assessment, Mr Norman most definitely falls into a Class 3 rating for reasons that follow.
The appellant makes the following submissions:
(a) The provided history that the appellant has amended his driving habits would explain why the accident was a one off. The appellant has changed his behaviour on account of his difficulty maintaining concentration behind the wheel, now avoiding busy roads (see MAC p4).
(b) The Medical Assessor endorses that. as part of the diagnostic criteria of major depressive disorder, the appellant has “diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as asserted by others).”
(c) There was other evidence available to the Medical Assessor with respect of the appellant’s capacity with respect of concentration, persistence and pace.
(d) Dr Gertler made note of the car accident in his report dated 12 December 2022, stating: “His concentration is poor. Although he avoids driving, he recently had to do so when his wife was unable to, and in the process was involved in a minor accident.”
(e) Dr Gertler also notes the appellant’s ‘poor’ concentration with respect to the appellant’s capacity to concentrate when trying to watch television. He assessed Class 3 noting “Significant problems with concentration, e.g. the recent motor vehicle accident.”
(f) Dr Robert May provided a detailed Fitness for Duty Assessment report and said: “Mr Norman reported a decline in his cognition stating that he was beginning to lose his belongings more and would find himself walking around the house or yard and having forgotten the reason why he had set off. He also stated he was not able to follow story lines in movies and would become easily frustrated by this. Mr Norman is still displaying symptoms of mental illness namely major depressive disorder and has a severe reduction in his functioning. Currently
Mr Norman is isolative and does little in terms of recreational or activities of daily living and instead remains within his house and drinking alcohol daily.”(g) The appellant himself has indicated his view of his own issues with concentration, persistence and pace, stating in his most recent statement: “My ability to focus is nowhere near what it was and I struggle with everyday tasks.”
(h) The available evidence from the Medical Assessor and other assessment/treatment providers supports the appellant being a person who:
(i)has not been able to continue to drive on busy roads following an accident;
(ii)cannot maintain any level of concentration watching television:
(iii)has poor general concentration and ongoing short- term forgetfulness;
(iv)struggles with household maintenance work, and
(v)is unable to perform any type of retraining.
We agree entirely with the appellant’s submissions.
As we said, on her own assessment, Mr Norman’s “attention and concentration is bad.” She also said: “He is unable to do complicated chores but he, however, is able to do simple tasks.”
On any reading, “bad” cannot be described as something “mild”, and being limited to performing “simple” tasks also suggests a significant level of impairment.
We do accept the respondent’s submission that “the MA is entitled to exercise clinical judgment to determine the weight that is to be given to the findings of other medical reports” and that an assessment must be made as a claimant presents at the time of examination.
In this case however, the Medical Assessor’s clinical judgment was inconsistent with the rating she ascribed.
For these reasons, the Appeal Panel has determined that the MAC issued on
30 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3950/23 |
Applicant: | Stephen Norman |
Respondent: | Sydney Trains |
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 Surabhi Verma 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 WorkCover Guides | 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) |
| 1. Psycholo gical Injury | 13.10. 2021 | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6 | 17% | 1/10th | 15% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
2
0