Philliponi v Hireup Pty Ltd
[2024] NSWPICMP 848
•10 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Philliponi v Hireup Pty Ltd [2024] NSWPICMP 848 |
| APPELLANT: | Candice Philliponi |
| RESPONDENT: | Hireup Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 10 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale categories (employability); Appeal Panel found error; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 August 2024 the worker Candice Philliponi (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 August 2024.
The appellant relies on the following ground 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 rdid not request that the worker undergo a re-examination. 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 to enable 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: 09/03/2021
·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. Psychiatric injury
9/03/2021
Chapter 11, page 54
Chapter 14, pg 361-365
15%
2% Preexisting
% Treatment effect
13%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
13%
The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
Name
Candice Philliponi
Claim reference number (if known)
W3290/24
DOB
xxxx
Age at time of injury
34 years of age
Date of Injury
09/03/2021
Occupation at time of injury
Hireup, Community Support Coordinator
Date of Assessment
25/07/2024
Marital Status before injury
de facto
Psychiatric diagnoses
Persistent Depressive Disorder
2. Borderline Personality Disorder
Psychiatric treatment
lithium 500mg twice a day, sertraline 50mg in the morning, quetiapine 25 to 50mg at night, and diazepam 5 mg as needed (she uses it every few weeks).
She sees her psychologist once a fortnight.
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self-Care and personal hygiene
3
Class 3 and not Class 2 was selected because she has a support person attend every week to ensure food preparation and hygiene.
She had moderate impairment.
Bathing: She said mostly she washes herself and does not brush her teeth but requires prompting from her support workers since the injury. She does not apply makeup, do her hair, or go to the beauty salon as before.
Cooking: The Claimant said she enjoys cooking and tries to cook as much as possible with her support worker. Sometimes she cannot assist depending on her mental health.
Household chores: She reported that she helps her support worker on days she is motivated.
Shopping: She stated that she sometimes goes shopping but the bulk of shopping is by delivery.
She stated that before the injury, she was completely independent in bathing, grooming, household chores and shopping. She said she always took pride in her appearance.
Social and recreational activities
3
Class 3 and not Class 2 was selected because she rarely goes out. She does not engage in exercise activities.
She had moderate impairment.
Hobbies: She said nowadays she watches online content mostly.
Exercise: She stated that she is not doing any exercise.
Other activities: The Claimant said she does not swim anymore because she does not go out.
Frequency of socialising: She said she has lost contact with friends and the last time she went out was a few months ago.
She said she has become more reclusive since the injury.
She stated that before the injury, she used to enjoy swimming and running at 5 am. She used to go to cafes and restaurants for lunch.
Travel
2
Class 2 and not Class 1 was selected because she can travel locally.
She had mild impairment.
She drives locally and to the university. She visits her parents who live a 90-minute drive away but has not driven there for 5 to 6 months. She said she felt uncomfortable driving.
The Claimant said a support person is not required to travel.
She said she had never gone on holiday.
She stated that before the injury, she could travel anywhere without any problem.
Social functioning
2
Class 2 and not Class 1 was selected because she has lost friends but otherwise has good family relationships.
She had mild impairment.
Relationship with her partner: She said her relationship previously had domestic violence, but not now. She said the relationship is good and they focus on being good co-parents. There are no separations.
Relationship with children: She stated that she has a good relationship with her children and they are a major positive factor in her life.
Relationship with siblings: The Claimant said she has 5 siblings (one is a half-sibling). She has a good relationship with them.
Relationship with parents: She reported that she has a great relationship with her father now and they are close. She has a reasonable relationship with her mother.
Relationship with friends: She stated that she keeps in touch with some friends by text. She said she neglected those relationships with her friends since the injury but her relationship with her family has not changed.
She stated that before the injury, she could go out socially with her family and friends without a problem.
Concentration, persistence and pace
2
Class 2 and not Class 1 was selected because she could take the level of a standard course at a slower pace.
She had mild impairment.
She said her concentration was currently poor. She said she spends 8 hours a day going through her degree coursework. She must re-read to understand the material.
She said her concentration was good before the injury. She said she was at university, working part-time and was managing everything at home. She said she was previously a distinction student and was good at passing exams.
Employability
3
Class 3 and not Class 2 was selected because she can study 8 hours a day, albeit she must re-read information. She is co-carer for her children, albeit she would like to do more.
She had moderate impairment.
Work: She said she last worked between 30 and 38 hours per week in September 2020.
Volunteering: She stated that she was the carer for her children. She became upset saying she wanted to do more.
She said the barriers to returning to work were poor concentration, not leaving her room much, and feeling exhausted all the time.
She stated that there were never any issues with employment before the injury.
Score
Median Class
2
2
2
3
3
3
3
Aggregate Score Impairment
Total
%
+ 3
+ 3
+ 2
+ 2
+ 2
+ 3
15
15%
The deduction for pre-existing illness has been calculated as an initial whole-person impairment of 15% with one-tenth of 15 giving 1.5 equating to a 2% deduction.
The addition for treatment effect was calculated as 0%, due to a poor or no treatment effect.
The final WPI is 13%.”
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 he made under one of the PIRS categories, namely employability, in assessing class 3 for employability when he should have assessed class 4 or 5
In summary, the respondent employer Hireup Pty Ltd (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 his clinical expertise to bear and exercise his 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 medical assessor recorded a detailed history as follows: (emphasis in original)
“A brief history of the incident/onset of symptoms and subsequent related events, including treatment as per the Claimant on the date of assessment:
In summary of the documentation provided:
The documentation indicated that the Claimant worked for HireUp as a Disability Support Worker from 2017 to 2019. She became a community support coordinator for them from 2020 until March 2021.
On 15/06/2019, a client for whom she was caring became agitated and drove her electric wheelchair into her left leg. She needed to contact the police when the client shut her in the room. This event triggered traumatic memories of childhood abuse leading to a decompensation of her mental state and suicidal thoughts. There were other psychosocial stresses at the time related to her partners, depression, alcohol abuse and unemployment. She was admitted to the PECC unit at St Vincent Hospital and was discharged on 20/06/2019.
The documentation indicated that she returned to work for eight weeks. She underwent surgery on her leg in September 2019 and was off work for two weeks.
In October 2020, she was involved in a motor vehicle accident and struck her head. She was then admitted to St. Vincent’s Hospital under the Mental Health Act.
In early 2020, she changed to the full-time position of Community Support Coordinator but felt inadequately trained for this position she was admitted to Saint Vincent’s Hospital PECC short-stay mental health unit in mid-2020.
She returned to work in September 2020 but felt unsupported and interpersonal issues were leading to a performance plan being put in place. She felt she missed out on employment opportunities and pay increases.
She ceased work in March 2021.
The Claimant’s report of the injury of 09/03/2021 (as dated in the PIC documentation):
The Claimant said she had been in hospital in July for a suicide attempt. She returned to work. Her team leader and workplace had changed. She said they were dealing with the constraints of COVID-19 and were ‘locked’ to their desks and phones, which made things difficult. She said her team leader initially appeared supportive and put her on a ‘Gold plan’ to support her after her 8-week leave. She said it was only supportive if it suited the manager.
She said she raised the issue with HR and was put on light duties.
The Claimant talked about how she found it distressing to receive a diagnosis of schizophrenia from the IME assessment by Dr Dwyer in February 2021. She said that she was not given any support for such a diagnosis and was stood down from her job because of that report.
She said there is no prospect of her returning.
She said she could not recall when she last felt happy. She said her mood was dependent on her activities such as going to work or going to university. She said her mood changed after the workplace injury because she could not no longer work or go to university.
The last time was a week ago. These thoughts are triggered by thinking her children would be better off without her. There are no plans to harm herself currently. She talks to her psychologist about those thoughts and has a management plan around it.
She said the first time his anxiety symptoms occurred was in her childhood and early 20s. She said they changed after the injury because leaving her bedroom can make her anxious, which never happened before.
She described her sleep and concentration as good before the subject injury. She said she was at university, working part-time and was managing everything at home. She said that before the workplace subject injury, she was a distinction student and was good at passing exams.
She stated that before the subject injury, she was completely independent in bathing, grooming, household chores and shopping. She said she always took pride in her appearance. She enjoyed swimming and running at 5 am. She would frequently go to cafes and restaurants for lunch and could go out socially with her family and friends without a problem. She could travel anywhere without any problem.
She explained that she is in her second year of her law degree. It is a 5-year full-time course, but she has done it part-time. She started it in 2016 and then had a break during COVID-19. She is trying to catch up on the art side of the degree. She said her marks have been lower and she has failed 2 subjects because she did not attempt the exam.
· Current symptoms:
Mood Symptoms:
Mood – She described her mood as low.
Anhedonia – She is still able to enjoy activities.
Appetite - She reported a poor appetite. She is still restricted because of having a gastric sleeve. She said she grazes, and it distresses her that her weight is increasing.
Sleep – She described her sleep as poor, and she relies on quetiapine to sleep.
She said she wakes in the middle of the night. It can vary between 5 and 12 hours.
Fatigue – She stated that she experiences fatigue all day every day. She said she never slept during the day until the injury.
Concentration – She said her concentration was currently poor. She said she spends 8 hours a day going through her degree coursework. She must re-read to understand the material.
Suicidal – She said she was not experiencing suicidal thoughts.
Anxiety Symptoms:
She said anxiety episodes can last from a few minutes to hours.
Triggers – She stated that anxiety episodes were triggered by isolating in her room and coming out to see her environment is untidy such as crumbs on a bench.
Improved by – To improve anxiety, the Claimant said uses an icepack.
The Claimant reported that symptoms of anxiety include increased heart rate, hyperventilating, choking, chest discomfort, feeling faint, fear of losing control, dying feeling, and the sense that the world is closing in.
She said she can have panic attacks once or twice a fortnight.
Psychosis:
The Claimant denied any psychotic symptoms.
· Current treatment as per the Claimant on 25/07/2024:
· Medications:
lithium 500mg twice a day, sertraline 50mg in the morning, quetiapine 25 to 50mg at night, and diazepam 5 mg as needed (she uses it every few weeks).
Metformin, pregabalin (for her back), Nexium
She said she is having her medications reviewed by a psychiatrist. She did not think they were effective.
She found mirtazapine too sedating and ceased it.
Psychology:
She sees her psychologist once a fortnight.
Psychiatrist:
She is seeing a psychiatrist in early September 2024. She sees him twice a year.
General Practitioner:
She sees her GP once every 6 weeks for lithium level.
Other treatments:
She said she is engaged with Occupational Therapy fortnightly and physiotherapy fortnightly.
· History of presenting complaint:
The timeline of symptoms is given in the ‘History relating to the Injury’ section.
Past treatment:
She said she tried EMDR before which she found helpful for the trauma history.
She was motivated for treatment escalation and said she wanted help with her therapy.
· Details of any previous or subsequent accidents, injuries, or conditions:
The documentation noted that she had a history of borderline personality disorder and complex trauma from physical abuse as a child and domestic violence as an adult. She did not have that diagnosis before.
She experienced depression and anxiety as a teenager and was involved with mental health services between 13 and 14 years of age. She was cutting her legs. She self-harmed to manage emotional pain.
It was documented that when she was 16 or 17, she was admitted to the Pialla mental health unit at Nepean Hospital and was diagnosed with depression. When asked about that, she said she only presented there and was never admitted.
In her mid-20s, she commenced escitalopram medication and saw a psychiatrist.
On 05/05/2023, Dr Mustac, psychiatrist, made a diagnosis of autistic spectrum disorder and bipolar II disorder. When asked about that, she did not agree with this assessment and said that she did not think she ever experienced hypomanic or manic symptoms before.
She said she had five psychiatric admissions. The last time was a 7-day admission to the Prince of Wales in August 2023.
Substance Use:
In her 20s, she sporadically used methamphetamine and cocaine.
She said that for much of her adulthood, she had only drunk alcohol once or twice a year.
In 2023, she had a problem with binge drinking and saw a drug and alcohol counsellor. She said this was related to issues with the police (It was presumed she meant it was related to her self-harming in 2023 and the police became involved) and what was happening at work at the time. She said she was prescribed naltrexone.
She said she drinks small amounts of alcohol once a month.
Family History:
She confirmed that her son has Tourette's syndrome and attention deficit and hyperactivity disorder.
Her father has autism spectrum disorder, her mother has a major depressive disorder.
Her brother has ADHD and autism spectrum disorder.
Developmental History:
She was born and raised in Emu Plains, NSW. She had five brothers and was the second eldest. There were no complications or developmental issues. She is unsure if she has ADHD or autism.
Her father was physically violent in her childhood and her mother was not protective.
Her parents divorced when she was 13. She lived with her mother until the age of 16. She said she became rebellious at the time.
She left school after Year 10. She said she did not do the HSC and went on the adult pathway later in life.
Work history including previous work history if relevant:
She trained as an enrolled nurse through TAFE when she was 16.
When she was 23 years of age, she left her son’s father at 32 weeks of pregnancy because of domestic violence.
She later obtained a Cert 4 and a Diploma of Community Services.
She worked as a Support Coordinator and in administration. She then met her husband and moved to Rose Bay. She subsequently had her daughter.
In 2016, she attended the University of New South Wales for an arts degree with a major in political studies. She then transferred to a law course. This is still ongoing.
From her vocational assessment report dated 07/09/2021, she worked as a receptionist (2002 to 2003), enrolled nurse (2003 to 2006 with various employers), apprentice chef (2006), rehabilitation nurse (2006 to 2007), social educator (2007 to 2009), disability support worker (2011), community coordinator (2011 to 2014), disability support worker (215 to 217), and HireUp as a disability support worker from 2017 to 2019. She became a community support coordinator for them from 2020 until March 2021. These were not discussed with her again.
General health:
She had a crush fracture and L4-L5 herniated discs from a non-work-related spinal injury which accumulated over her life working in nursing. She had a fall in the home in 2023 and that was when it was noted.
In 2019, she had a worker’s compensation claim for her left leg injury.
In April 2020, she was involved in a car accident when driving home. She sustained a head injury when her car ran into a parked car, and she was knocked unconscious.
When asked about this accident, she said that she found it upsetting at the time but could not recall its psychological effect. She did not think it increased her anxiety or depression. She was working and had taken leave from university as her husband was not working.
She had gastric sleeve surgery for weight loss.
· Social activities/ADL:
Current living situation:
The Claimant lives with her 14-year-old son (from a previous relationship) and a 9-year-old daughter (her current partner). Her partner of 12 years lives with her and they have an on-and-off relationship.
She reported that she has a NDIS funding support person who comes in for a few hours to help with food preparation. She has another person helping with the household chores.
Currently, her NDIS package is being reviewed.
She said she used to have a routine where she would get up and go to the office or university. She said that since the injury, she often stays in her bedroom without coming out.
Self-care and personal hygiene:
She stated that before the injury, she was completely independent in bathing, grooming, household chores and shopping. She said she always took pride in her appearance.
Bathing: She said she mostly bathes herself but, since the injury, requires prompting from her support workers. She does not apply makeup, do her hair, or go to the beauty salon as before.
Cooking: The Claimant said she enjoys cooking and tries to cook as much as possible with her support worker. Sometimes she cannot assist depending on her mental health.
Household chores: She reported that she helps her support worker on the days that she feels motivated.
Shopping: She stated that she sometimes goes shopping but the bulk of shopping is by delivery.
Social and recreational activities:
She stated that before the injury, she used to enjoy swimming and running at 5 am. She used to go to cafes and restaurants for lunch.
Hobbies: She said nowadays she watches online content mostly.
Exercise: She stated that she is not doing any exercise.
Other activities: The Claimant said she does not swim anymore because she does not go out.
Frequency of socialising: She said she has lost contact with friends and the last time she went out was a few months ago.
She said she has become more reclusive since the injury.
Travel:
She stated that before the injury, she could travel anywhere without any problem.
She drives locally and to the university. She visits her parents who live a 90-minute drive away but has not driven there for 5 to 6 months. She said she felt uncomfortable driving.
The Claimant said a support person is not required to travel.
She said she had never gone on holiday.
Social functioning:
She stated that before the injury, she could go out socially with her family and friends without a problem.
Relationship with her partner: She said her relationship previously had domestic violence, but not now. She said the relationship is good and they focus on being good co-parents. There are no separations.
Relationship with children: She stated that she has a good relationship with her children, and they are a major positive factor in her life.
Relationship with siblings: The Claimant said she has 5 siblings (one is a half-sibling). She has a good relationship with them.
Relationship with parents: She reported that she has a great relationship with her father now and they are close. She has a reasonable relationship with her mother.
Relationship with friends: She stated that she keeps in touch with some friends by text. She said she neglected those relationships with her friends since the injury but her relationship with her family has not changed.
Concentration persistence and pace:
She said her concentration was good before the injury. She said she was at university, working part-time and was managing everything at home. She said she was previously a distinction student and was good at passing exams.
She said her concentration was currently poor. She said she spends 8 hours a day going through her degree coursework. She must re-read to understand the material.
Employability:
She stated that there were never any issues with employment before the injury.
Work: She said she last worked between 30 and 38 hours per week in September 2020.
Volunteering: She stated that she was the carer for her children. She became upset saying she wanted to do more.
She said the barriers to returning to work were poor concentration, not leaving her room much, and feeling exhausted all the time.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Appearance: The Claimant appeared her stated age and was reasonably groomed. Her hair was neatly tied back. She said she was in her pyjamas.
Behaviour: There was no psychomotor disturbance, and she appeared relaxed in her chair. There was good eye contact with the videoconference camera. She smiled often and appropriately. Occasionally she became tearful thinking about how her children might be better off without her.
Speech: Speech was spontaneous and was normal in volume, rate, rhythm, and prosody.
Mood: She described her mood as low.
Affect: Her affect was warm, reactive, and appropriate, with a normal range.
Thought form: The thought form was logical with no formal thought disorder noted.
Thought content: The main themes were about the effects of the injury on her life. She said the brief of evidence upset her and was ultimately harmful when she read it.
There were no delusions noted. She said she was not experiencing suicidal thoughts.
Perceptions: There was no perceptual abnormality described and she did not appear to be responding to any abnormality on observation.
Cognition: Formal testing of cognition was not performed. She attended alone
and at the correct time. A reasonable history was obtained. She was able to manage the assessment which lasted 1 hour and 15 minutes.”
The Medical Assessor summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
Persistent Depressive Disorder
Borderline Personality Disorder.
· consistency of presentation
The Claimant appeared consistent in her presentation.”
The Medical Assessor made an assessment of impairment based on his ratings in each of the six PIRS categories as set out above.
The rating in category contested on appeal is the moderate impairment (class 3) rated for employability.
The Medical Assessor explained his assessment further as follows with reference to the other evidence before him:
“My opinion and assessment of whole-person impairment
13% WPI%
In making that assessment I have considered the following matters: -
The information from the assessment and my observations of the Claimant, which can be found above, as well as information from the relevant documents, have been summarised below:
Rose Bay Family Medical Centre dated 05/01/2016 to 29/05/2020
05/01/2016 - It was documented that she had obesity, depression and anxiety. She had a gastric sleeve in May 2016.
08/12/2017 – it was documented that she had worsening depression and anxiety. She thought that sertraline 200 mg daily was not helping her. She was prescribed sertraline 150 mg daily, quetiapine 150 mg at night, and diazepam 10 mg twice a day as needed.
24/09/2018 – anxiety and panic attacks had worsened because of her home environment triggering past thoughts. She was prescribed sertraline 200 mg daily, quetiapine 25 mg at night, and lorazepam 1 mg three times a day as required.
29/05/2020 – she had not taken diazepam since February 2020 and could not afford further psychiatrist consultations.
Report of Dr Lam-Po-Tang, Redtree Practice dated 27/12/2018
It was noted that she had a long history of significant developmental trauma and abuse from an early age continuing into adult relationships. She experienced panic attacks with anxiety symptoms and suicidal thoughts. She self-harmed in response to panic attacks in the past.
She was in her second year of her arts and law degree at the University of New South Wales. She was majoring in political sciences. She was enjoying her job at the time as a disability support worker.
The recommended treatment was to increase sertraline, considering the use of other antidepressant medications as well as augmentation. It was recommended that she withdraw from benzodiazepines and continue with counselling and further CBT.
Discharge Summary, St Vincent’s Hospital dated 19/06/2019
She was admitted voluntarily to psychiatry on 19/06/2019 with increased anxiety and panic attacks. The main issue was when one of her clients had assaulted her with a wheelchair and rammed into her shins. She was discharged on 20/06/2019 and followed up by the Acute Care Team until 27/06/2019.
Dr Will Errington, GP dated 21/06/2019 to 24/09/2019
21/06/2019 – it was documented that she had been physically attacked with an electric scooter by a client which triggered her PTSD. It documented that she had concerns about self-harm and had been admitted to PECC.
24/07/2019 – it was documented that she was seeing a counsellor, was seeing Dr Lam-Po-Tang, and had some issues with the Acute Care Team.
Report of Dr Lam-Po-Tang dated 06/08/2019
It was documented that there was increased anxiety since the work injury including severe panic attacks several days afterwards. She had a brief admission to Saint Vincent's Hospital following panic attacks.
She increased sertraline to 300mg daily, increased mirtazapine, continued diazepam and was referred to psychologists for CBT.
Report of Dr Lam-Po-Tang dated 22/08/2019
The diagnoses were noted to be panic disorder, agoraphobia and extensive trauma history. She has been receiving individual CBT for these since December 2018. It was documented that she had been recently assaulted in her role as personal carer which resulted in an increased frequency of panic attacks and worsening of her agoraphobia.
Report of Psychologist Paul Kennedy, MindFrame dated 01/10/2019
It was documented that she had difficulty going into crowds and was ‘jumpy’. She had a recent assault that resulted in an increase in symptoms and was subsequently hospitalised.
The plan was to provide therapy for her past traumatic experiences through EMDR and CBT.
Report of Dr Lam-Po-Tang dated 01/11/2019
It was noted that there had been an increase in stress related to multiple recent non-work stresses including a car crash two weeks previously and significant issues with the behaviour of her son and partner.
It was documented that before these stresses occurred, there had been improvement in psychiatric symptoms and functioning. She worked three days a week between five and seven hours per day. She reported having fewer symptoms whilst at work.
The diagnosis was panic disorder with the phobia, related anxiety symptoms and personality traits, and domestic violence relationship. She was prescribed sertraline 250mg daily, mirtazapine 3.25 mg at night and diazepam to 2 mg as required.
Report by Dr Moisidis dated 14/11/2019
She was admitted to St. Vincent Private Hospital for surgical treatment of her left pretibial lesion. She had a good recovery from the resection of the area of fat necrosis.
Letter of Dr Lam-Po-Tang dated 13/02/2020
The letter was in response to a communication from the Pharmaceutical Benefits Scheme Prescription Shopping Service notifying excess prescriptions for Diazepam.
St Vincent Hospital discharge summary dated 25/07/2020
It noted a history of panic disorder and agoraphobia and self-cutting her legs recently. Previous suicide attempts by overdose were noted.
IME report of Dr Dwyer dated 14/2/2021
It was noted there were social circumstances including domestic violence relationship and current apprehended violence order. Her mental state was characterised by emotional dysregulation, increased perception of threat response, thought disorder, paranoid thinking, reported auditory hallucinations, anxiety, irritability and delusional thoughts. She presented as labile in affect, overinclusive, and circumstantial in the thought form with distractibility and loosening of associations. There was cognitive impairment on testing (see below).
The long-standing history of multiple diagnoses including major depressive disorder, anxiety and agoraphobia was noted.
The provisional diagnosis was noted to be schizophrenia with a differential diagnosis of borderline personality disorder, and complex PTSD.
The prognosis was reported to be guarded.
Comment: this is the only time that schizophrenia has been considered as a diagnosis by any assessing psychiatrist.
KB Investigations factual interim and final reports dated 29/04/2021 and 28/05/2021
The Claimant’s reports were of the perceived lack of support and unfair treatment at work including being placed on a performance plan.
The employer statements disputed the Claimant’s account. The Claimant’s performance was described as inconsistent by her team leader, she required much time off work and there were communication difficulties. Her interactions oscillated between being bubbly and at other times unpredictable and erratic. She was reported to be thought to be intoxicated during video conference meetings in July 2020.
IME report of Dr Sidorov dated 08/08/2021
The opinion was that workplace stress was the main contributing factor to aggravating her underlying borderline personality disorder.
The diagnosis was borderline personality disorder.
It was noted that she had a documented history of agoraphobia and panic disorder, but she did not meet the criteria for these diagnoses at the time of the assessment.
It was opined that she would likely experience similar stresses if she returned to her pre-injury duties. A gradual return to work within six months was thought reasonable.
Vocational Assessment report dated 07/09/2021
Suitable roles based on education and experience were noted.
Report of Dr D'Souza dated 28/10/2021
She had been referred due to increased severe associative episodes, increased emotional dysregulation, and suicidal thoughts. This was in the context of sharing that her partner had assaulted her son in the past and due to having her Work Cover payment rescinded.
It was noted that she had a history of borderline personality disorder and complex trauma from physical abuse as a child and domestic violence as an adult. It was documented that she suffered from social anxiety and agoraphobia. Noted was the AVO with husband. She was on lithium 250 mg twice a day, sertraline 50 mg in the morning, and quetiapine 50 mg at night.
Dr James Bodel, Orthopaedic Surgeon dated 13/04/2022
This assessment was concerning her left leg shin injury which was noted to have had ‘traumatic fat necrosis’. There was a good response to surgery although the resolution of symptoms was incomplete.
Prince of Wales Hospital discharge summary dated 16/02/2023
She was admitted on 12/02/2023 and discharged on 16/02/2023.
This was a crisis admission due to suicidal ideation in the context of a domestic violence episode and of police-initiated AVO against her partner. It mentioned that her son was cut when he tried to intervene when the Claimant tried to self-harm.
Report of Dr Mustac dated 05/05/2023
Dr Mustac thought there was a diagnosis of Bipolar 2 Disorder and Attention Deficit Disorder as well as binge drinking. It was reported that she had episodes of elevated mood and increased energy and self-confidence which lasted more than a week.
She was self-harming by cutting every four months depending on psychosocial stresses.
Further statement of Candice Philliponi dated 10/05/2023
Noted.
IME report of Dr Khan dated 16/08/2023
Dr Khan had not obtained a history of the motor vehicle accident or chronic pain symptoms but did note a previous compensation claim for her left leg injury.
The documentation noted pervasive symptoms of depression and anxiety. It was also noted that before the work injury, her condition was stable, and she had not required any psychiatric hospital admissions.
Diagnoses were Persistent Depressive Disorder and Borderline Personality Disorder.
It was documented that her employment was the main contributing factor to aggravating her pre-existing conditions. Non-work stressors were noted but not thought to be the cause of her mental health issues. The perception of workplace bullying and harassment was thought to be the cause of her presentation.
The prognosis was noted to be guarded.
Self-care. Class 3. She struggled to motivate herself and relied on her partner’s support. She received six hours per week of NDIS. Recreation. Class 3. She did not engage in social and recreational activities and was socially withdrawn. Travel. Class 2. She struggled with anxiety and avoidance of crowds when she left home. Social functioning. Class 2. She remained withdrawn from her extended family and friends. Concentration. Class 2 she had difficulty focusing on reading and described memory impairment. She was studying at a reduced pace. Employability. Class 5. It was noted that she could not realistically engage with real work employment.
PIRS classes were 3,3,2,2,2,5 thus the aggregate was 17 and 17% WPI with 0% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 17%.
Maximum medical improvement was considered to have been reached.
Comments: Class 5 for employability appears excessive given that she was enrolled and able to maintain her studies at university. She was also able to care for her children.
An online investigation report by Quantumcorp (without annexures) dated 26/10/2023
The report contains social media posts and re-posts by the Claimant referring to her activities such as going to lunch, current affairs, and her son's ballet.
IME report of Dr Peter Young, Psychiatrist dated 27/12/2023
She was studying a combined Arts and Law Degree at the University of New South Wales. She was receiving support services from NDIS.
At the time of that report, she had engaged in a DBT group therapy course and was referred to a psychologist. She had been followed up by a community mental health nurse since February 2023 and was provided support from NDIS. She was seeing a psychiatrist every two or three months. She reported benefiting from these services. She was prescribed lithium 625 mg twice a day, sertraline 50 mg in the morning, quetiapine XR 50 mg at night, mirtazapine, and diazepam 5 mg as needed.
She reported debilitating chronic pain and issues looking after her son caused her to be depressed every two months.
Dr Young thought there were several non-work-related psychosocial such as her domestic violence relationship, chronic pain and the effects of the motor vehicle accident which were responsible for most of the reported symptoms.
The opinion was that she could work 20 hours a week in a less demanding role.
It was noted that there were inconsistencies in the history provided and the opinion was that the clinical prep presentation was not consistent with psychiatric injury.
Self-care. Class 3. She was generally independent in this. Recreational. Class 2 she could attend the university campus and was engaged in some social activity. Travel. Class 1. She was independent in this area. Social functioning. Class 1. She had good social connections. Concentration. Class 2. She was making satisfactory progress in her degree studies. Employability. Class 2. She could work in a less demanding role at least 20 hours a week.
PIRS classes were 3,2,1,1,2,2 thus the aggregate was 11 and 5% WPI with 3% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 2%.
Maximum medical improvement was considered to have been reached.
Comments: Pain and medical factors should not be considered according to the worker’s compensation guidelines when making deductions.
Dr Khan, letter of response to Doctor Young’s assessment, dated 19/03/2024
Dr Khan disagreed with Dr Young’s 20% deduction for a pre-existing. Dr Khan correctly noted that the guidelines suggest a 10% deduction of the final whole-person impairment. Dr Khan disagreed with taking the chronic pain and motor vehicle accident as being the cause without looking at the longitudinal picture outside of that event. Dr Khan also thought that the selected classes in the PIRS were inconsistent. Dr Khan disagreed with the need for psychometric testing reporting that it was not validated in assessments for workplace psychiatric/psychological injuries in New South Wales. I would agree with Dr Khan on this.
Dr Khan disagreed with the Insurer’s misinterpretation of previous IME assessments.
Comments: I agree with all Dr Khan’s points listed above.
Eliza Munro, psychology dated 06/04/2021 to 11/03/2022
These were online sessions. It was noted that she was engaged with the DBT group. She cancelled some sessions. The relationship issues with her partner being violent towards her were documented.
Laura Rizzuto, The Dymocks Building dated 03/05/2023 to 11/06/2024
She attended DBT sessions. She missed some sessions, sometimes because she was unwell.
Certificate of capacity/ certificate of fitness, Various dates
Noted.”
The Medical Assessor made brief comment on the other medical opinion before him as follows:
“My assessment of 13% WPI% agrees more closely with the outcome of Dr Khan. My reasoning for each specific domain is to be found within the PIRS.
Dr Young did not provide the calculations for the pre-existing impairment deduction.
A summary of my PIRS assessment is as follows:
PIRS classes were 3,3,2,2,2,3 thus the aggregate was 15 and 15% WPI with 2% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 13%.
IME report of Dr Khan dated 16/08/2023PIRS classes were 3,3,2,2,2,5 thus the aggregate was 17 and 17% WPI with 0% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 17%.
IME report of Dr Peter Young, Psychiatrist dated 27/12/2023
PIRS classes were 3,2,1,1,2,2 thus the aggregate was 11 and 5% WPI with 3% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 2%.”
The complaint on appeal concerns the rating for employability at class 3.
The appellant says it should have been rated as class 4 or 5.
Essentially, the respondent says there is no error and that the Medical Assessor has made the appropriate classification relying on his clinical findings on the day of examination.
In respect of employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| 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 (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
The Medical Assessor rated a moderate impairment at Class 3 with the following reasoning:
“Class 3 and not Class 2 was selected because she can study 8 hours a day, albeit she must re-read information. She is co-carer for her children, albeit she would like to do more.
She had moderate impairment.
Work: She said she last worked between 30 and 38 hours per week in September 2020.
Volunteering: She stated that she was the carer for her children. She became upset saying she wanted to do more.
She said the barriers to returning to work were poor concentration, not leaving her room much, and feeling exhausted all the time.
She stated that there were never any issues with employment before.”
The Appeal Panel notes that the Medical Assessor was cognisant that Dr Khan, the independent medical examiner (IME) qualified to provide an opinion on behalf of the appellant, had rated the appellant as class 5 for employability. He expressly explained that he considered that rating “excessive” as follows:
“Class 5 for employability appears excessive given that she was enrolled and able to maintain her studies at university. She was also able to care for her children.”
The error lies in assessment on the basis of incorrect criteria. The Medical Assessor has stated that he does not agree with Dr Khan because of the appellant’s ability to study eight hours per day and to care for her own children. An ability to care for one own children (aged 9 and 14) when you are not the sole carer and you also have a support worker that assists you in household chores does not necessarily equate to an ability to work, be it remunerated in an open or sheltered environment or volunteer.
The Panel noted the Medical Assessor cited studying eight hours a day that involves rereading, in both concentration, persistence and pace and employability, and amounts to double counting the same psychiatric impairment and this is also an error.
The Appeal Panel considers that the best fit rating in employability is that the appellant worker is severely impaired at class 4, and noted she has not worked since her injury, but she is not completely devoid of productivity in her day-to-day life. Her ability to undertake a range of home tasks could be replicated in a volunteer role, or in support work such as disability or elderly support, or domestic cleaning, but her attendance would be erratic given some days of dysfunction
What this means is that the class assessed by the Appeal Panel is class 4 in place of the class 3 assessed by the Medical Assessor.
This means the calculations become as follows:
Score
Median Class
2
2
2
3
3
4
3
Aggregate Score Impairment
Total
%
+ 2
+4
+ 6
+ 9
+ 12
+ 4
16
17%
The appellant did not challenge the extent of the deduction made by the Medical Assessor at one-tenth under s 323.
This means that the total WPI is 17% less 1.7 (one-tenth) equals 15% WPI after rounding.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 August 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: | W3290-24 |
Applicant: | Candice Phillipone |
Respondent: | Hireup Pty Ltd |
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 Gerard Walsh and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
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.
| 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. Psychiatric injury | 9/03/2021 | Chapter 11, page 54 | Chapter 14, | 17% | 1.7% | 15% (after rounding) |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
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