Owens v Neami Limited
[2021] NSWPICMP 196
•15 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Owens v Neami Limited [2021] NSWPICMP 196 |
| APPELLANT: | Vanessa Owens |
| RESPONDENT: | Neami Limited |
| APPEAL PANEL: | Member William Dalley Dr Michael Hong Dr Julian Parmegiani |
| DATE OF DECISION: | 15 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of demonstrable error and application of incorrect criteria with respect to assessment of three areas of function in the Psychiatric Injury Rating Scale, travel, social functioning and employability; appellant submits that the Medical Assessor (MA)’s assessment was not available on the evidence; Held - the MA had performed the assessment in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; the MA’s evaluation in each case was open and available on the evidence; Glenn William Parker v Select Civil Pty Limited and Ferguson v State of New South Wales applied; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 July 2021 Vanessa Owens lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nick Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 June 2021.
The appellant relies on the following grounds of appeal under section 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 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 section 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
The appellant, Vanessa Owens, suffered the subject psychological injury in the course of her employment as a rehabilitation support worker with the respondent, Neami Pty Ltd. The injury was acquired by a gradual process and was deemed to have occurred on 21 November 2019. Since the onset of her psychological condition Ms Owens has not returned to work.
Ms Owens was prescribed medication by her general practitioner and consulted a psychologist. Although her symptoms improved with treatment, she continued to suffer psychological symptoms. On 13 January 2021 Ms Owens was assessed by a clinical psychiatrist, Dr Frank Chow, at the request of her solicitor for the purpose of a lump sum compensation claim pursuant to section 66 of the Workers Compensation Act 1987. Dr Chow assessed Ms Owens as suffering 24% whole person impairment (WPI) as a result of the subject psychological injury.
Ms Owens’ legal representatives made a claim for lump-sum compensation in accordance with Dr Chow’s assessment. On 8 February 2021 Ms Owens was examined by a psychiatrist, Dr Graham Vickery, at the request of the insurer. Dr Vickery diagnosed; “pre-existing general anxiety disorder and persistent depressive disorder” which he felt were in partial remission. Dr Vickery did not assess impairment as he felt that Ms Owens had not reached maximum medical improvement. He felt the condition was likely to stabilise in the next 6 to 12 months.
Ms Owens legal representatives made an application to the Commission, claiming lump sum compensation in accordance with the assessment of Dr Chow. The medical dispute was referred to a Medical Assessor, Professor Nicholas Glozier. The Medical Assessor examined Ms Owens on 9 June 2021. He assessed Ms Owens as suffering 8% WPI as result of the subject injury. The Medical Assessor deducted 1/10 as attributable to a pre-existing condition, resulting in a total assessment of 7% WPI (after rounding).
Each of the respective examinations by Dr Chow, Dr Vickery and the Medical Assessor were conducted by audio-visual link.
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.
The appellant requested that she should be re-examined by a Medical Assessor member of the Panel. The Panel has conducted a review of the MAC and the evidence in the light of the submissions of the parties and has determined that neither of the grounds of appeal have been made out. The Panel accepts that a re-examination cannot be performed unless a ground of appeal is made out and error established[1].
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33].
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 Panel.
In summary, the appellant submits that the Medical Assessor fell into demonstrable error and applied incorrect criteria when assessing Ms Owens with respect to the areas of function “travel” and “social functioning” (assessed by the Medical Assessor as mild impairment but asserted to be correctly assessed as moderate impairment) and “employability” (assessed by the Medical Assessor as severe impairment but asserted to be correctly assessed as totally impaired).
In reply, the respondent submits that the Medical Assessor correctly applied the appropriate criteria and exercised appropriate clinical judgement in making assessments that were open on the evidence.
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[2] 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.
[2] [2006] NSWCA 284
The Medical Assessor diagnosed Ms Owens as suffering an aggravation of the previous Major Depressive Episode and aggravation of a long-term agoraphobia/claustrophobia. He reported “Currently her Major Depressive Disorder is in partial remission, as is her Agoraphobia with Panic”. He noted “She continues to probably meet the criteria for a Substance Use Disorder, given her intake despite evidence of harm”. The diagnosis is not the subject of submissions in the appeal.
The appellant’s submissions note the requirement for the Medical Assessor to assess the extent of impairment by evaluating each of the six areas of function referred to in paragraph 11.11 of the Guidelines. Paragraph 11.12 requires the Medical Assessor to rate impairment by first evaluating the extent of the worker’s impairment by assessing which of the five categories set out in Table 11.1 to 11.5 as appropriate to each area of function. These class descriptors range from “no deficit” or “minor deficit attributable to the normal variation in the general population” to “totally impaired”.
The Medical Assessor was required to assess Ms Owens in accordance with clauses 1.6 and 11.6, 11.11 and 11.12 of the Guidelines. Clause 1.6 provides that:
“a) 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 relevant medical information...
b) Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
Clause 11.6 provides:
“It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning limitations; from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals, results of standardised tests, including appropriate psychometric testing performed by a qualified clinical psychologist, and work evaluations may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to “whole person impairment”.”
Clause 11.11 provides:
“Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
Self care and personal hygiene (Table 11.1)
Social and recreational activities (Table 11.2)
Travel (Table 11.3)
Social functioning (relationships) (Table 11.4)
Concentration, persistence and pace (Table 11.5)
Employability (Table 11.6).
The appellant’s submissions note the requirement for the Medical Assessor to assess
Ms Owens in accordance with Clause 11.12 of the Guidelines which provides:“Impairment in each area is rated using class descriptors. Classes range from 1 to 5 in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The appellant does not assert that the Medical Assessor has not addressed the appropriate Guidelines but rather submits that, in respect of the areas of function, “travel”, “social functioning” and “employability”, the Medical Assessor has inappropriately placed Ms Owens within classes that do not reflect the evidence.
Travel
With respect to the area of function, “travel”, the appellant asserts that she should have been assessed as suffering moderate impairment (Class 3). The appellant submits:
“The evidence recorded by the Medical Assessor fits more comfortably within class 3 because the appellant requires the company of her psychiatric companion dog when going out, and these problems are due to significant anxiety. The psychiatric companion dog helps to alleviate her anxiety when travelling. Although class 3 refers to ‘a support person’, the psychiatric companion dog performs the same function as a support person. She lives alone most of the time, although sometimes with her daughter. In effect, she is not able to leave home without a ‘support person’. The evidence shows that the appellant also experiences high levels of anxiety that stop her from being able to travel long distances run highways and tunnels. This is evidence of excessive anxiety which inhibits her ability to travel.”
Table 11.3 of the Guidelines with respect to Class 2 and Class 3 provides:
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3
Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
The Medical Assessor noted that Ms Owens was responsible for all her shopping, cooking and cleaning and had been able to “get back into shops of late without panic attacks although can still have high levels of anxiety”. He also noted that Ms Owens was able to drive locally on her own but avoided driving through tunnels, although she could manage this if travelling with a friend. The Medical Assessor recorded:
“She says that she can really only do public transport now with her dog. When her daughter is with her she will drive her to school and can drive her to and from her activities. She describes the weekends as being fairly similar, with no major change in the day.”
The Medical Assessor also noted on examination that Ms Owens still suffered arousal and anxiety “particularly in travel in situations where she cannot see exits and avoids certain parts of travelling”. He noted that Ms Owens had not had a panic attack for some time having initiated strategies to deal with this[3].
[3] MAC para 5
The Medical Assessor noted the report of Dr Chow which he summarised with respect to travel; “In terms of travel she is able to drive herself locally, drive her children to activities but suggested she needs her dog to help with public transport” which the Medical Assessor felt described mild impairment.
In the PIRS Rating Form the Medical Assessor recorded his reason for assigning Class 2 (mild impairment) to the area of function, travel: “She is able to drive herself locally, drive her children to activities but still needs her dog to help with public transport”.
Dr Chow in his report dated 17 January 2021 noted “She [Ms Owens] goes to the shops once a week. She stated that she can drive locally, but gets easily anxious. She would avoid highways or tunnels. She travels with her dog everywhere. She struggles with public transport. She stated that she usually takes Valium if she goes out”.
Dr Chow reported his reasons for assigning Class 3 (moderate impairment) to this area of function: “Ms Owens drives locally, but gets easily anxious and she needs to be accompanied by her dog all the time. She does not drive on highways or through tunnels”.
The Medical Assessor recorded that Ms Owens’s mood and function had improved “although still not completely resolved or remitted back to her usual state”[4].
[4] MAC Paragraph 4,
The appellant noted the symptoms recorded by the Medical Assessor, pointing to the fact that Ms Owens suffers arousal and anxiety when having to travel, particularly so where she cannot see exits. The appellant noted that Ms Owens was recorded as having felt an anxiety attack coming on when at the shops and that Ms Owens avoided “certain parts of travelling”. The appellant noted the need for the companion dog when travelling on public transport and the inability to drive in tunnels unless accompanied by a companion, although conceding that Ms Owens was able to drive her daughter to school.
The appellant submitted that the necessity to be accompanied by a companion animal was equivalent to requiring the presence of a support person which would, it was submitted, be more consistent with Class 3, moderate impairment.
The appellant submitted that, in effect, she was unable to leave home without the equivalent of a support person in the form of her companion dog. Having regard to the evidence that
Ms Owens suffered high levels of anxiety, stopping her from being able to travel long distances or on highways and tunnels, it was submitted that she would appropriately be placed in Class 3 with respect to this area of function.In Glenn William Parker v Select Civil Pty Limited[5] (Parker), Harrison AsJ addressed the issue of assessment of the areas of function referred to in Clause 11.11 of the Guidelines, noting that Campbell J in Ferguson v State of New South Wales & Ors[6] (Ferguson) had observed:
“The indicia contained within the PIRS examples in Chapter 11 therefore are not intended to be exclusive, and are subject to the variabilities that accompany a person seeking psychiatric help, such as those matters mentioned – age, sex and cultural norms.”
[5] [2018] NSWSC 140
[6] [2017] NSWSC 887
Her Honour noted at [65];
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (‘Wark’), where it is 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. ...’.”
At [66] Her Honour noted 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. (Ferguson [24])”.
The Medical Assessor based his assessment with respect to “travel” on the documentary evidence as well as the information supplied to him by Ms Owens upon examination. That information established that Ms Owens was able to travel locally, although with anxiety which she addressed with the assistance of a companion dog when using public transport. The Panel rejects the submission that the use of a companion dog to alleviate anxiety can be equated to the necessity for the assistance of a “support person” before leaving the home. A support person is able to provide a much wider range of assistance including assuming control of the situation, verbalising reassurance, providing directions and, if required, summoning assistance.
The Panel is satisfied that, as a matter of clinical judgement, the Medical Assessor was entitled on the information before him to assess Ms Owens as mildly impaired (Class 2) in respect of this area of function. As noted by the Medical Assessor, Ms Owens was able to drive her daughter to school and could drive her son and daughter to other activities[7]. On the evidence she appears to manage the anxiety that she suffers while travelling.
[7] MAC Page 4.
The Medical Assessor noted the contents of Ms Owens’s statement which was in evidence, as well as the information supplied to him upon examination. He also noted the opinion of
Dr Chow, noting that Ms Owens was able to drive herself locally and drive her children to activities. He noted the greater symptoms recorded by Dr Chow and commented that this was consistent with improvement over the past five months since Dr Chow’s examination. Although minds may differ, the Panel is satisfied that the medical assessor’s conclusion that Ms Owens fell within Class 2, mild impairment, was open to him and not inconsistent with the evidence.The Panel is satisfied that the assessment of Ms Owens as suffering mild impairment (Class 2) with respect to the area of function, “travel”, does not disclose error or the application of inappropriate criteria.
Social functioning
The Medical Assessor assessed Ms Owens as suffering mild impairment (Class 2) in the area of “social functioning”. The appellant submits that the Medical Assessor ignored relevant evidence and the appropriate assessment should have been moderate impairment (Class 3).
The Medical Assessor reported that Ms Owens “has been engaged more socially, particularly with neighbours, but has been shocked, embarrassed and ashamed about what has happened to her, limiting her communication about this to her friends”. The Medical Assessor also noted that Ms Owens had received support from a close friend which had been helpful, again noting that Ms Owens had reduced contact with some of her friends due to her embarrassment but had made better contact with her neighbours who she described as friends.
The Medical Assessor noted that Ms Owens had been out with her children for her birthday in the previous March and had enjoyed the occasion. He noted “She said the last medium term relationship finished in late 2019/early 2020 because he was ‘unreliable and unsupportive’”.
Commenting on the report of Dr Chow, the Medical Assessor reported “She [Ms Owens] has not sustained a long-term relationship for many years since the split from her husband and she continues to be supported by her family, with regular contact with her mother and particularly when her mother comes up from Canberra to see her grandchildren. Although she says she is ashamed and does not maintain contact with some of her other friends she has made more contact with her neighbours”.
The Medical Assessor gave his reasons for assigning Class 2 to this area of function in the PIRS Rating Form:
“She has not sustained long-term relationships for many year [sic] and she continues to be supported by her family, with regular contact with her mother and particularly when her mother comes up from Canberra to see her grandchildren. She has made more contact with her neighbours.”
Table 11.4 of the Guidelines relevantly provides:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships are severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children..
In her statement dated 6 April 2021 Ms Owens spoke of isolating herself, saying “I do not see my friends or family much at all now”.
Dr Chow reported:
“She stated that she had separated from a husband 13 years ago and has 2 children. She stated that she was in a relationship on and off for a few years and then separated a year ago due to her difficulties. She stated that she receives support from her neighbour.”.
In assigning Class 3 to this area of function, Dr Chow gave as his reasons: “Ms Owens is not seeing friends. She is distant from friends and family. She separated from her partner 12 months ago due to her psychological difficulties”.
The appellant submitted that the Medical Assessor had ignored relevant evidence “such as the fact that the appellant separated from a partner”. The appellant noted that the separation was said to have occurred as a result of the injury. The appellant submitted “That fact demonstrates a severe straining of a previously established significant relationship that resulted in separation. This qualifies the appellant for class 3 in respect of social functioning”.
The appellant also noted that the MAC recorded loss of previously established friendships. The appellant submitted that “The fact that she is friendly with neighbours or other dog owners in a park does not negate the fact that she has not been able to sustain, and indeed has lost, her previously established relationships as result of the injury and its impact on her”.
The Panel does not accept that the Medical Assessor has failed to take into account the termination of Ms Owens’s previous relationship nor the loss of friends. The Medical Assessor noted that friendships have been lost. The Medical Assessor was entitled to form his own opinion as to the nature and significance of the termination of Ms Owens’s previous relationship. The Medical Assessor was given a history upon examination by Ms Owens of a “medium term relationship” which finished because the other person was “unreliable and unsupportive”. Dr Chow described that relationship as “on and off for a few years”.
The Medical Assessor was entitled to accept the description of the termination of the relationship provided to him upon examination in preference to the opinion of Dr Chow that this was due to Ms Owens’s psychological condition.
The Medical Assessor noted the formation of new friendships and examples of family interaction with Ms Owens.
As noted in Ferguson and Parker, the Medical Assessor was entitled to make his assessment on the basis of his own clinical judgement. He noted that Ms Owens’s mood had improved since seeing Dr Chow and that Ms Owens had been able to form new friendships as well as maintaining a civil relationship with her former husband and interacting appropriately with her children and her mother who visited from Canberra.
The Panel is satisfied that the Medical Assessor has appropriately weighed the evidence and exercised clinical judgement to place Ms Owens within Class 2 and that assessment was open to the Medical Assessor on the evidence. The Panel is satisfied that placing Ms Owens within Class 2 in respect of the area of function, “social functioning”, does not disclose error or the application of inappropriate criteria.
Employability
The Medical Assessor evaluated Ms Owens as falling within Class 4 with respect to the area of function, “employability”. The Medical Assessor noted that Ms Owens had completed year 12 and had subsequently gained a fine arts degree. He noted her work history which included employment in the hospitality industry and more recently work as a ceramicist and community worker.
The Medical Assessor noted that Ms Owens had not worked since the subject injury but recorded “Over the past few months, she has been updating a certificate 4 in adult learning and assessment, three or four hours a day online”.
In assigning Class 4, the Medical Assessor said:
“She undertakes a number of hours of computer work each day in courses at home, and as we now realise post COVID, there are numerous roles where this is compensable although, from her description, she is unlikely to be able to sustain ongoing and regular part-time work currently.”
Table 11.6 of the Guidelines relevantly provides:
Class 4
Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Peace is reduced, attendance is erratic.
Class 5
Totally impaired: Cannot work at all.
Ms Owens’s independent medical expert, Dr Chow, reported “she has some partial capacity for work, but likely to be unreliable due to her ongoing psychological symptoms”. Dr Chow also assessed Ms Owens as Class 4 (severe impairment). He noted “Ms Owens is able to work in a lesser role with less pressure five – 10 hours a week but is likely to be unreliable due to her significant psychological symptoms”.
That view is consistent with the Psychological Functional Capacity Evaluation Report dated 15 December 2020[8] which was in evidence and which records:
“Ms Owens reported that she feels she has some current capacity to work in a role that is not the same as her pre-injury role. She expressed an interest in considering options of work that she has experience in, such as a Workplace Trainer or a teacher roles at TAFE and potentially going back to the Arts. This motivation to return to some employment is likely to be beneficial for Ms Owens’s recovery.”.
[8] Reply, page 53
The appellant submits that placing Ms Owens within Class 4 with respect to this area of function is “nonsensical” as the Medical Assessor notes that Ms Owens is “unlikely to be able to sustain ongoing and regular part-time work currently”. The appellant submits that being “unlikely to be able to sustain ongoing, and regular part-time work currently” is more appropriately placed within Class 5 because “as the Medical Assessor acknowledges that the appellant would not be able to currently even sustain ongoing and regular part-time work, which, if she could might qualify her for class 4”.
That submission does not accurately reflect the reasoning of the Medical Assessor. The Medical Assessor noted that Ms Owens is able to engage in tasks which could be used in employment. That is consistent with the view of Ms Owens’s own independent medical expert, Dr Chow. The Medical Assessor then observes that “from her description, she is unlikely to be able to sustain ongoing and regular part-time work currently” (emphasis added).
The Medical Assessor was not bound to accept the opinion provided by Ms Owens in this regard. The appellant’s case is put forward upon the basis of the assessment by Dr Chow. The Medical Assessor has read and understood that assessment, noting more recent improvement in Ms Owens’s emotional state, and has come to an assessment which, with regard to this area of function, agrees with that assessed by Dr Chow. The Panel notes that the examples given in respect of Class 4 take into account that workplace attendance may be “erratic”.
The Panel considers that the Medical Assessor has exercised appropriate clinical judgement after consideration of the evidence in the light of his examination, and has placed Ms Owens within category 4 in respect of the area of function “employability” which was not only open on the evidence but which formed part of the assessment upon which Ms Owens’s claim was based.
No error or application of incorrect criteria has been made out in respect of the area of function, “employability”.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 June 2021 should be confirmed.
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