Panagos v The Trustee for the Salvation Army (NSW) Property Trust
[2024] NSWPICMP 673
•23 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Panagos v The Trustee for the Salvation Army (NSW) Property Trust [2024] NSWPICMP 673 |
| APPELLANT: | Olympia Panagos |
| RESPONDENT: | The Trustee for the Salvation Army (NSW) Property Trust |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 23 September 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, social functioning and concentration, persistence and pace and in the making of one-tenth deduction under section 323; Held – no error in respect of the assessments under social function and concentration, persistence and pace and in respect of the one-tenth deduction; error in the assessment for social and recreational activities which was rated as mild and should have been rated as moderate; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 March 2024 Olympia Panagos (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 2 April 2024.
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 grounds 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 WorkCover Medical Assessment Guidelines 2006.
The appellant sought that she undergo a re-examination by Medical Assessor who was also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel for it to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 07/01/2021
· Body parts/systems referred: Psychiatric/psychological disorder
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological Injury | 07.01.2021 | 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 | 7 | 1/10 | 6 |
| Total % WPI (the Combined Table values of all sub-totals) | 6 | |||||
The assessment was based on her assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
| Name | Olympia Panagos | Claim reference number (if known) | W559/24 |
| DOB | Xxxx | Age at time of injury | 52 |
| Date of Injury | 07.01.2021 | Occupation at time of injury | Crisis case manager |
| Date of Assessment | 26.02.2024 | Marital Status before injury |
| Psychiatric diagnosis | 1. Major Depressive Disorder with anxious distress |
| Psychiatric treatment | Yes |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-Care and personal hygiene | 1 | Ms Panagos reported that she showers every day and changes into clean clothes. She occasionally misses meals; however, since she lives on her own, she has been able to take care of her hygiene, meals, and appetite. I believe that this warrants class 1 impairment. | |||||||||
| Social and recreational activities | 2 | Ms Panagos reported that she used to enjoy gaming, going out with friends, socialising, bushwalking, going to concerts, and travelling to the coast. She said that she has been able to play video games daily and a couple of weeks back, she went to attend the Lunar New Year celebration and saw a performance; however, she was there only for 25 minutes before going back to home. She is also able to go out every day to Westpoint mall to get her coffee and enjoys that as well. Ms Panagos also added that she enjoys playing video games and plays games to the extent that it has exacerbated her arthritis. | |||||||||
| Travel | 2 | Ms Panagos reported that she is able to use public transport and is able to travel on her own. She said that she is able to go out for walks on her own and with her son. She also goes every day to Westpoint mall to get coffee and grocery shopping. She does that unassisted; however, Ms Panagos reported that she does not like going to far-off places and feels overly anxious and hence, has been avoiding that. | |||||||||
| Social functioning | 2 | Ms Panagos has been socially avoidant and has lost some of her friendships with people whom she worked with. She said that she has cut most of her friends off. She said that one of her friends calls her and she occasionally talks to that friend on the phone. She said that she has great relationship with her kids and they are very supportive. She said that earlier, they used to meet up on birthdays and hang out more frequently. She is planning to watch her son and daughter do an obstacle course next week and is looking forward to it. | |||||||||
| Concentration, persistence and pace | 2 | Ms Panagos reported that her attention and concentration is poor. She said that she “forgets things” and what she had said earlier. She is unable to read and has to reread things. She also added that she blocks out incidents and at times has no recollection of the events. However, during my assessment, Ms Panagos was able to maintain her attention and concentration well for the whole period of assessment. She was able to recollect information and did not seem to have any particular issues in short and long-term memory. She also plays a lot of video games, for hours altogether which I believe would also need substantial level of attention and concentration. | |||||||||
| Employability | 5 | Based on her current affective symptoms, I do not believe that Ms Panagos has capacity to work. She has significant mood and affective symptoms with insomnia and low motivation which will preclude her from engaging in any sort of employment. | |||||||||
| Score | Median Class | ||||||||||
| 1 | 2 | 2 | 2 | 2 | 5 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| +1 | +3 | +5 | +7 | +9 | 14 | 7 | |||||
Deduction for pre-existing illness = 1/10
Final WPI = 7-0.7 = 6.3 = 6%”
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments she made under three of the PIRS categories, namely social and recreational activities, social functioning and concentration, persistence and pace, such that she erred as follows:
(a) in assessing a class 2 for social and recreation activities when she should have assessed a class 3;
(b) in assessing a class 2 for social functioning when she should have assessed a class 3, and
(c) in assessing class 2 for concentration, persistence and pace when she should have assessed a class 3.
In addition to the errors alleged in respect of the three PIRS categories, the appellant alleged error in making a deduction under s 323 because it was submitted, amongst other things, that the episodes of depression date back to between 2001 and 2007 which is at least 14 years prior to the date of injury.
In summary, the respondent employer, The Trustee for the Salvation Army (NSW) Property Trust, (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring her clinical expertise to bear and exercise her clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.
In respect of social and recreational activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5
Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Medical Assessor assigned a Class 2 or mild impairment with the following reasoning:
“Ms Panagos reported that she used to enjoy gaming, going out with friends, socialising, bushwalking, going to concerts, and travelling to the coast. She said that she has been able to play video games daily and a couple of weeks back, she went to attend the Lunar New Year celebration and saw a performance; however, she was there only for 25 minutes before going back to home.
She is also able to go out every day to Westpoint mall to get her coffee and enjoys that as well. Ms Panagos also added that she enjoys playing video games and plays games to the extent that it has exacerbated her arthritis.”
The Medical Assessor was cognisant of the medical opinion of Dr Napper and she explained the difference in her opinion as follows:
“Social and recreational activities: I have noted Dr Napper has mentioned Ms Panagos seldom goes out. She does not engage in any recreational activities. Ms Panagos, however, reported that she spends a lot of time gaming every day to the extent that it has exacerbated her arthritis. She was also able to go out for a performance even though she was only able to stay there for 25 minutes before she returned home. She is also able to go out every day for walks and enjoys that as well. This warrants mild rather than moderate impairment.”
The Appeal Panel considers that the Medical Assessor erred in rating class 2 for social and recreational activities. The history taken of solitary recreational activities such as walking and gaming combined with the history that she was only able to go to a performance for 25 minutes and then had to leave and otherwise her activities lack a social element, accord more correctly with the criteria for Class 3.
In respect of social functioning, Table 11.4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
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 severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4
Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The Medical Assessor assessed Class 2 with the following reasoning:
“Ms Panagos has been socially avoidant and has lost some of her friendships with people whom she worked with. She said that she has cut most of her friends off. She said that one of her friends calls her and she occasionally talks to that friend on the phone. She said that she has great relationship with her kids and they are very supportive. She said that earlier, they used to meet up on birthdays and hang out more frequently. She is planning to watch her son and daughter do an obstacle course next week and is looking forward to it.”
The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3. The appellant submitted that both the IME who was qualified to provide an opinion on behalf of the appellant and the IME who was qualified to provide an opinion on behalf of the respondent assessed a moderate impairment at Class 3.
The Medical Assessor has to reach her own independent assessment. Social functioning is concerned with the quality of relationships. The clear history is that the appellant maintains strong relationships with her children and her grandchildren. There has been no violence or history of separation in significant relationships. The rating of a mild impairment is consistent with this history and the Appeal Panel can discern no error.
In respect of concentration, persistence and pace, Table 11.5 of the Guides provides as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| Class 2 | Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
The Medical Assessor rated a Class 2 with the following reasoning: (emphasis in original)
“Ms Panagos reported that her attention and concentration is poor. She said that she ‘forgets things’ and what she had said earlier. She is unable to read and has to reread things. She also added that she blocks out incidents and at times has no recollection of the events. However, during my assessment, Ms Panagos was able to maintain her attention and concentration well for the whole period of assessment. She was able to recollect information and did not seem to have any particular issues in short and long-term memory. She also plays a lot of video games, for hours altogether which I believe would also need substantial level of attention and concentration.”
The appellant submitted that a moderate impairment or Class 3 should have been assessed.
However, assessment cannot be based on self report alone. The Medical Assessor has explained very clearly how she reached a Class 2 rating and has conducted a mental state examination the results of which she recorded as follows:
“I reviewed Ms Panagos via video. She engaged well during the assessment and was cooperative. She presented as a middle-aged Caucasian female, who looked the stated age. There was no evidence of any psychomotor agitation or retardation.
Ms Panagos was casually dressed in a T-shirt and had tattoos on her arms and piercing on the left upper eyelid. She was wearing neck chains and earrings and had a tricoloured polish on her nails.She reported her mood to be sad and low, and her affect was slightly dysphoric. Her speech was spontaneous and normal in volume and tone. Her thoughts were logically and goal directed. She currently reported ongoing negative ruminations about the incidents at her workplace. She was able to recollect the information and able to concentrate and focus during the full hour of assessment. There was no evidence of any manic, psychotic, or any perceptual disturbances.”
The Medical Assessor is required to use her clinical expertise in making an assessment of the impairment in concentration, persistence and pace and a significant part of the assessment of concentration persistence and pace is clinical evaluation by the Medical Assessor on the day of examination.
Moreover the Medical Assessor has very clearly explained why her opinion differs from that of Dr Napper in the category of concentration, persistence and pace as follows: (emphasis in original)
“Concentration, persistence, and pace: I have noted that Dr Napper has mentioned Ms Panagos loses concentration after a few minutes. She is unable to follow any kind of instructions. However, I was unable to notice any evidence of the same in the mental status examination. In fact, Dr Napper has mentioned ‘she gave a detailed consistent history.’
During my assessment, there was no evidence of significant impairment in her attention and concentration. She was able to recollect information with no impairment in her short and long-term memory. She also has been able to play video games which makes me wonder that she is able to concentrate for at least a period of 30 minutes. Hence, I believe the impairment is consistent with class 2.”
The Appeal Panel can discern no error in the assessment of Class 2 for concentration, persistence and pace.
Turning to the complaint on appeal about the deduction made by the Medical Assessor of one-tenth under s 323 to account for any preexisting condition, abnormality or injury.
The Medical Assessor explained her reasoning for the deduction as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Pre-existing injuries include the history of depression and anxiety, possible Borderline Personality Disorder, developmental trauma, and a past history of drug use, which was in remission at the time of starting the employment.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)I believe that the past history of depression and anxiety, along with the history of developmental trauma, predisposed Ms Panagos to develop depression in the context of workplace-based incidents.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one-tenth.”
The appellant complains on appeal that a deduction was not justified because there was last treatment for depression in 2007. In fact the clinical records which were before the Medical Assessor and hence are before the Appeal Panel reveal an extensive mental health history. The clinical records must be subject to evaluation. This is what the Medical Assessor has done, she has applied her clinical judgment in interpreting the clinical history set out in the records. What the records demonstrate is that the appellant suffered from a chronic psychological illness with a relapsing and remitting course that has extended over many years. This prior condition has contributed to the level of permanent impairment assessed because it has resulted in her impairment from her work injury being more severe. A pre-existing history of anxiety and depression, especially when those episodes have been severe and repetitive, result in more severe episodes with resultant greater overall impairment. The appellant has a chronic relapsing condition which is borne out in the general practitioner’s clinical records which reveal a treatment history for mental health issues that includes the following:
(a) substance use history from age 15-39;
(b) psychological therapy after a relationship breakup in 2001;
(c) anxiety medication used in 2006 and 2010;
(d) antidepressant used in 2011, 2012, 2013, and
(e) clinical mention of anxiety in 2015 and 2017.
The Appeal Panel considers that the Medical Assessor has used her clinical expertise in evaluating the other evidence before her and thereby has appropriately and without error accounted for the contribution of the appellant’s chronic, relapsing pre-existing psychological condition to the overall level of permanent impairment assessed by making a one-tenth deduction under s 323.
The Appeal Panel can discern no error in the one-tenth deduction applied by the Medical Assessor under s 323.
The Appeal panel has found error in one category of PIRS namely social and recreational activities. This means that the scores become as follows:
| “Score | Median Class | ||||||||
| 1 | 2 | 2 | 2 | 3 | 5 | =2 | |||
| Aggregate Score Impairment | Total | % | |||||||
| +1 | +3 | +5 | +7 | +9 | 14 | 8 | |||
Deduction for pre-existing illness = 1/10
Final WPI = 8- 0.8 = 7.2 = 7% (after rounding)”
For these reasons, the Appeal Panel has determined that the MAC issued on
2 April 2024 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: | W3315/24 |
Applicant: | Olympia Panagos |
Respondent: | The Trustee for the Salvation Army (NSW) Property Trust |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Pane 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological Injury | 07.01.2021 | 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 | 8 | 1/10 | 7 |
| Total % WPI (the Combined Table values of all sub-totals) | 7 | |||||
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.
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