Ploeger v Peter Fowler Pty Ltd
[2022] NSWPICMP 222
•18 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ploeger v Peter Fowler Pty Ltd [2022] NSWPICMP 222 |
| APPELLANT: | Gary Ploeger |
| RESPONDENT: | Peter Fowler Pty Ltd |
| APPEAL PANEL: | Member Marshal Douglas Professor Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 18 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Matter involved assessment of permanent impairment from psychiatric injury; appellant worker submitted Medical Assessor erred by, firstly, obtaining a history inconsistent with the evidence and by not asking sufficient questions so as to obtain a correct history, secondly, not assessing his impairment in several of the PIRS categories the same as IMEs had assessed it to be, and thirdly, wrongly characterising his participation in video and online games and his browsing ebay; all of which he did alone, as being a social and recreational activity; Held- Appeal Panel rejected the first and second of those submissions, but accepted the third and found the Medical Assessment Certificate (MAC) contained a demonstrable error; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 August 2021 Gary Ploeger (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Julian Parmegiani, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 May 2021.
The appellant relies on the following grounds of appeal under s 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 ground(s) 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 s 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
On 4 March 2021 the appellant lodged with the Personal Injury Commission (Commission) an “Application for Assessment by Medical Assessor”. By that he sought that the degree of permanent impairment he had from a psychiatric injury he suffered as a consequence of a motor vehicle accident on 22 March 1999, which occurred while he was working for Peter Fowler Pty Ltd (the respondent), be assessed to establish whether it was more than 20%.
On 21 April 2021 the Commission issued to the MA a “Further Amended Referral for Assessment of Permanent Impairment to Medical Assessor”, which was in the following terms:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 23 March 1999
Body part/s referred: Primary Psychological Injury
Method of assessment: Whole Person Impairment
NOTE: THIS MATTER IS REFERRED AS A THRESHOLD DISPUTE ONLY – THE
MA IS TO ASSESS AS THE WHOLE PERSON IMPAIRMENT REGARDLESS OF
THE DATE OF INJURY
2. BRIEF
The brief provided to the Medical Assessor includes
1. the Application and attached documents
2. the Reply and attached documents
PREVIOUS AWARDS OR SETTLEMENTS:
00366660/01 Compensation Court of NSW
Section 66: $15,750.00 (5% left arm + 10% back + 15% neck)
3. ARRANGEMENTS
The parties request the Registrar to choose the Medical Assessor (s321(1)):
Dr Julian Parmegiani, via ZOOM”
The MA conducted an examination of the appellant on 13 May 2021 by video link. As said above the MA issued the MAC on 17 May 2021, wherein he certified that the appellant had 10% whole person impairment (WPI) from the appellant’s psychiatric injury.
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.
Based on its preliminary review, the Appeal Panel came to that the MAC contained a demonstrable error. This meant that the Appeal Panel would have to assess the medical dispute referred for assessment.[1] The Appeal Panel considered that in order for it to be able to do that, it would need to examine the appellant. The Appeal Panel appointed Professor Nicholas Glozier to do that. His report to the Appeal Panel on his examination of the appellant is set out below under findings and reasons.
[1] Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [26]; Hearne v Spamil Discretionary Trust [2018] NSWSC 1631 at [40].
During its preliminary review, the Appeal Panel also considered whether it should receive into evidence a statement the appellant signed on 14 June 2021.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant in his statement of 14 June 2021:
(a) recounts what he says occurred during the MA’s examination of him with respect to the time the MA contacted him, the quality of the audio link, and the questions the MA asked during the examination;
(b) expresses his view that the MA did not ask him sufficient questions and failed to obtain a correct history from him;
(c) details the extent to which and the manner in which he participates in video and online games;
(d) provides his opinion on the questions that the MA ought to have asked him;
(e) provides commentary on the findings the MA made relating to his functioning in the psychiatric impairment rating scales (PIRS) of social and recreational activities, concentration persistence and pace, and employability;
(f) details how he functioned both before and after his injury with some of his activities;
(g) details the extent to which his doctor checks his blood sugar level;
(h) details the extent to which he purchased items on ebay, and
(i) details his past history of employment.
The appellant’s statement is not fresh evidence insofar as it deals with his involvement in certain activities, his purchases on ebay, the extent to which his doctor checks his blood sugar levels, and his past employment history. That is evidence of matters that occurred before the assessment and the appellant could reasonably have recorded his evidence on those matters in a statement and filed that with the Commission before the assessment. Insofar as the appellant’s statement relates to those matters, the Appeal Panel is unable to accept it into evidence.
The appellant’s statement insofar as it relates to matters that occurred during the medical assessment and insofar as it provides his commentary or opinion on the history the MA obtained, the questions the MA ought to have asked and the findings of the MA is fresh evidence. Notwithstanding that, the Appeal Panel retains a discretion as to whether it ought to receive his statement relating to those matters into evidence.[2]
[2] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA per Handley AJA at [102].
In Lukacevic Hodgson JA stated that:
“a dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an [Appeal Panel] not to admit evidence raising such dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply be raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the [Appeal Panel] in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[3]
[3] Lukacevic at [78].
In the Appeal Panel’s view, the appellant’s evidence relating to what he says occurred during the MA’s examination of him and his commentary on what questions the MA ought to have asked and the MA’s findings, whilst fresh evidence, lacks probative value. This is because, firstly, it is apparent from what is before the Appeal Panel that the appellant has no clinical expertise or has any experience in clinical matters and is therefore unlikely that the appellant would know what is required to be done by a MA when conducting a clinical examination and taking a history. His additional evidence in this regard simply cavils with the function the MA performed in conducting the medical examination. Secondly, the Appeal Panel considers from its examination of the MAC that the history the MA obtained was the history that the MA considered was necessary for him to conduct his assessment. The Appeal Panel discerns no error within the MAC relating to the manner in which the MA obtained the history. Lastly, the appellant does not in his statement provide any independent evidence to support his evidence or contentions.
The Appeal Panel consequently exercises its discretion not to receive his statement into evidence.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The MA conducted an examination of the appellant on 13 May 2021.
The MA obtained a history of the incident in which the appellant suffered a psychiatric injury. The MA noted that the appellant had developed a number of psychiatric symptoms within three days of the incident which included the appellant re-experiencing the incident through repetitive nightmares and flashbacks and the appellant developing panic attacks. The MA noted that the appellant was able to resume driving but felt anxious near other vehicles. The MA noted that the appellant’s symptoms included palpitations and shortness of breath. The MA noted that the appellant slept poorly due to anxiety and that the appellant’s energy was low. The MA noted that the appellant had gained 50 kilograms in weight as a consequence of comfort eating and reduced physical activity. The MA noted that the appellant was able to work in a clerical position between 2001 and 2003 and then, after a move to Melbourne, was employed part time in garden maintenance working a few hours a week. The MA noted that the appellant left that position in 2006 following two hernia operations. The MA noted the appellant experienced difficulty in doing that type of work due to physical issues.
The MA noted that 20 years ago the appellant’s general practitioner (GP) prescribed Zoloft. After a time, the initial dose was increased to 200mg and then, approximately two months before the MA conducted his examination of the appellant, to 250mg. The MA noted that the appellant’s mood had improved.
With respect to the appellant’s social activities and activities of daily living, the MA recorded the following history in the MAC:
“Mr Ploeger lived in the town of Cockatoo, Victoria. He lived with his wife aged 61 and a son. Another son and daughter lived independently. Mr Ploeger slept poorly between 12 midnight and 5am. He usually got up at 7am, and had breakfast. His wife prompted him to take medication, and check his blood sugars.
Mr Ploeger showered on average once per week, due to reduced motivation. He drove on average twice per week, to visit his doctor, psychologist and physiotherapist. He was able to travel alone in familiar areas. He did not however travel to unfamiliar
places without a support person due to excessive anxiety.
Mr Ploeger did not visit recreational venues. One son lived in Cockatoo, and Mr Ploeger spoke with him weekly. He spoke with his younger brother in Geelong once per week. Mr Ploeger’s daughter lived in Sydney. Mr Ploeger spent up to four hours per day playing video games on his X Box. He enjoyed playing two games called Hunter and Call of the Wild. Mr Ploeger also played games on Facebook. He purchased items on eBay, including building materials. He told me his sons then used some these materials for projects, including building a new fence. His marital relationship was strained at times, but there were no separations or episodes of domestic violence.
I asked Mr Ploeger why he did not undertake domestic work or home maintenance. He explained that to leave his ‘leaf-blowing job’ because of his physical condition, including two herniae. Mr Ploeger recently applied for support from the NDIS. He wanted to obtain support in maintaining his house and garden.”
The MA recorded the following findings from his mental examination of the appellant:
“Mr Ploeger was a dishevelled 62-year-old man of above-average weight. He had a long and unkempt white beard. Mr Ploeger’s emotional expression was reduced in range, and he rarely smiled. His thinking was coherent and he did not express delusional ideas. He did not experience visual or auditory hallucinations. He often ruminated about the voice of the driver who caused the accident. This did not have the quality of an auditory hallucination. There were no other symptoms suggestive of a psychotic illness. Mr Ploeger was oriented in time, place and person and his memory was intact. He was able to sustain attention for the duration of the interview.”
The MA diagnosed the appellant’s injury as Chronic Posttraumatic Stress Disorder with Secondary Depressions and Panic Attacks.
The MA set out in the PIRS Rating Form attached to the MAC his ratings of the appellant’s impairment in the several categories of function required to be assessed to establish a worker’s permanent impairment from a psychiatric injury. The MA also provided within that table brief reasons for his ratings. The Appeal Panel observes that the appellant in his appeal against the MAC challenges the MA’s classifications with respect to social and recreational activities, concentration persistence and pace, and employability. The MA’s ratings relating to those areas of function and the MA’s reasons for his ratings were as follows:
Social and recreational activities
2
Mr Ploeger enjoyed playing X Box games four hours per day. He also played games on Facebook. He enjoyed browsing eBay, and purchasing building materials from time. He had regular contact with his children and his brother. Before COVID he saw friends once or twice per month. These activities indicated that he was able to enjoy some social and recreational activities.
Concentration, persistence and pace
2
Mr Ploeger suffered dyslexia, and his wife helped him read complex documents. He was however able to maintain concentration during the interview, which extended over one hour. He was able to play video games for four hours, purchase items on eBay, and provide a detailed history during the interview. He recalled his cholesterol level, blood sugar level and triglycerides.
Employability
4
Mr Ploeger was able to work after the motor vehicle accident, in occupations that did not expose him to a risk of motor vehicle accidents. He worked in a clerical position, and in garden maintenance. He was unable to continue to working because of his physical symptoms. These are not taken into account when rating psychiatric impairment. His psychiatric symptoms however would stop him working more than a few hours per week. He lacked energy and motivation.
The MA’s classifications of the appellant’s impairment in the other categories, namely self care and personal hygiene, travel, and social functioning were, respectively, 3, 2 and 2. The MA noted that the aggregate score of his classifications of the appellant’s impairment in all areas was 8 and that the medium of his classifications was 2, resulting in the appellant having a 10% WPI from his injury.
The MA noted that Psychiatrist Dr Ash Takyar, whom the appellant’s solicitors qualified to provide an assessment, had advised in a report dated 3 March 2020 that he had assessed the appellant had 22% WPI from his psychiatric injury. Further the MA noted that Psychiatrist Dr Peter Whetton, whom the respondent’s insurer’s solicitors had qualified, had also assessed the appellant’s impairment in the several PIRS Categories. The MA noted that he agreed with the diagnoses of both Dr Takyar and Dr Whetton but did not agree with their respective ratings of the appellant’s impairment in the areas of social and recreational activities, concentration, persistence and pace, and adaptation. The MA noted that at the time Dr Takyar assessed the appellant, the appellant was taking 150mg a day of Sertraline and at the time Dr Whetton assessed the appellant the appellant was taking 200mg a day of Sertraline. The MA noted that at the time he assessed the appellant the appellant was taking 250mg a day of Sertraline and the MA suggested that “this could explain the discrepancy between my ratings of Mr Ploeger’s psychiatric impairment, and the ratings made by Dr Whetton and Dr Takyar”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA failed to obtain a proper history and the history the MA obtained was inconsistent with the evidence both he and the respondent had filed with had filed with the Commission. The appellant submitted that the MA failed to make proper enquiries of him that would have enabled the MA to obtain information relevant to the MA’s assessment of his impairment. The appellant submitted that the MA did not ask or did not enquire sufficiently regarding the video games he played and his purchasing of items on ebay. The appellant submitted the MA failed to make sufficient enquiries about his blood sugars, day to day activities, domestic arrangements, work history, social activities and his mental state generally.
The appellant submitted that the MA ought to have assessed his impairment in the category of social and recreational activities as Class 3, which is what both Dr Whetton and Dr Takyar had assessed his impairment in this category. The appellant submitted that the MA ought to have assessed his impairment in the category of concentration, persistence and pace as Class 3, which also was what Dr Whetton and Dr Takyar had assessed it to be. The appellant further submitted that the MA ought to have assessed his impairment in the category of employability as Class 5, and again this is what Dr Whetton and Dr Takyar had assessed it to be.
The appellant submitted that the MA erred by contacting him via the audiovisual link 10 minutes before the scheduled time for the assessment to commence. The appellant submitted that the MA erred as a consequence of there being a “poor static connection” during the examination.
The appellant submitted that the MA “made a superficial assessment that playing computer games is a social and recreational activity” and that the MA failed to appreciate that this was not a social and recreational activity.
In reply, the respondent submitted, in substance, that the appellant failed to establish that any early contact by the MA of the appellant for the MA’s assessment of the appellant’s impairment and any audio issue that occurred during the MA’s examination of the appellant resulted in the MA’s examination of the appellant being flawed. The respondent submitted that the fact that the MA’s assessment of the appellant’s impairment in the categories of social and recreational activities, concentration persistence and pace, and employability did not correspond with Dr Takyar’s and Dr Whetton’s assessments does not establish an error on the part of the MA with respect to his assessment of the appellant’s impairment in these categories. The respondent, referring to Jenkins v Ambulance Service of NSW[4], submitted that a mere disagreement between different clinicians regarding a worker’s impairment is not sufficient to demonstrate error.
[4] [2015] NSWSC 633.
The respondent submitted that the appellant’s engagement in computer games was relevant to the MA’s assessment of the appellant’s impairment in the category of social and recreational activities. The respondent submitted that the MA’s assessment of the appellant’s impairment in social and recreational activities, concentration persistence and pace and employability was supported by the MA’s findings relating to these particular activities.
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.
The Appeal Panel considers, in arguendo, that even if the MA did contact the appellant 10 minutes prior to the time scheduled for the commencement of the MA’s examination of the appellant and even if the MA did experience some issue with the audio of the link through the assessment was done, there is nothing contained within the MAC that reveals that those matters inhibited in any way the MA from conducting a thorough examination of the appellant so as to be able to assess the appellant’s permanent impairment from his injury. There is simply no evidence before the Appeal Panel that would enable the Appeal Panel to come to that conclusion.
The Appeal Panel also considers from what is contained within the MAC and what is contained in the documents the appellant and the respondent filed with the Commission with their respective Application and Reply, that the MA’s findings as set out in the MAC is not inconsistent with that evidence. The Appeal Panel finds that the MA considered the documents that the Commission referred to him and this is because the MA explicitly said so in the MAC in that the MA said that his assessment was based on his clinical examination of the appellant and “perusal of documentation submitted by the parties”.
It is the view of the Appeal Panel, which includes two psychiatrists, that based upon what is contained within the MAC and also within the documentation that the parties submitted to the Commission, the enquiries the MA made of the appellant to enable him to assess the appellant’s permanent impairment were appropriate and sufficient. That said another way, the Appeal Panel considers that the MA elicited a history that was necessary for him to enable him to assess the appellant’s impairment.
The Appeal Panel also accepts the respondent’s submission that the fact that the MA has assessed the appellant’s impairment in the categories of social and recreational activities, concentration persistence and pace, and employability, differently from what Dr Whetton and Dr Takyar did, does not demonstrate error. It merely demonstrates that at the time the MA assessed the appellant’s permanent impairment from his injury the MA came to a different conclusion than Dr Whetton and Dr Takyar regarding the appellant’s permanent impairment. As the MA noted this could have been a consequence of the appellant increasing his medication. In any event, the MA was required to assess the appellant based on the appellant’s presentation at the time of assessment, rather than the time at which each of Dr Whetton and Dr Takyar had assessed the appellant.
The Appeal Panel considers, however, that the MA did err and applied incorrect criteria when assessing the appellant’s impairment in the category of social and recreational activities, This is because the MA characterised the appellant’s engagement in video games and online games and the appellant’s browsing of ebay as being social and recreational activities. These activities involved the appellant only and did not involve his interacting with other people, and as such, were not social and recreational activities.[5]
[5] Ballas v Department of Education [2020] NSWCA 86 at [100].
The Court of Appeal in Ballas held as follows regarding the incorrect classification of an activity:
“If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in an AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation”.[6]
[6] Ballas at [94].
Because the MA wrongly considered the appellant’s participation in online games and his browsing of ebay as being social and recreational activity, the MAC contains a demonstrable error, and further it resulted in the MA basing his rating of the appellant’s impairment in this category on incorrect criteria. Given that, the Appeal Panel must revoke the MAC and reassess the medical dispute that was referred for assessment. As indicated above, the Appeal Panel considered that it would need to re-examine the appellant for that purpose and appointed Professor Glozier to do so. Professor Glozier did so on 4 May 2022 and subsequently provided the Appeal Panel with the following report on his examination:
“1. The worker’s medical history, where it differs from previous records
Mr Ploeger reported that he has continued to see his psychologist approximately monthly, sometimes via telehealth and sometimes face-to-face, in Emerald, some 5km away. He described the use of EMDR at times but found it difficult to describe other techniques or what has happened but said that he feels his mood is a bit better and she tries to help him with his cognition. He has seen his psychiatrist via telehealth three times since he had COVID.
His current medication is Quetiapine 25mg nocte, Zoloft 250mg nocte, Diazepam 10mg nocte.
He also sees a pain specialist. He takes Panadeine Forte, Panadol Osteo, Celebrex, Deralin and Entrip. He was quite reluctant to discuss his physical symptoms, asking what it had to do with this assessment. He describes a chronic total body pain, particularly his shoulder, neck and back. He said that this is reduced with a ‘stiff drink’ and exacerbated by sitting for too long, lifting anything. He said he is restricted physically in that he really only has his right hand to do anything and showed me that his left shoulder had reduced range of abduction. He said that he cannot walk as his ‘leg has gone’ an he may only walk as far as the front gate at time. He cannot have a hot shower due to the dermatitis arising from his medications and reported that his pain has left him ‘useless.’
He describes no change in his psychiatric symptoms over time.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Ploeger strongly expressed how symptomatic and disabled he is. In terms of his symptoms he feels chronically dysphoric and ‘unpredictable.’ He says he can be angry, low, anxious and irritable. He does not like being with people and finds that he is intolerant of others and their noise including his own grandchildren. He said he has chronic flashbacks where he frequently recalls the face of the other driver as a full scene and can be easily triggered into this. These thoughts can dominate his thinking. He described himself as ‘an arsehole’ and cannot understand why his wife is with him as he is so unpleasant to be with. He does little around the home or elsewhere, is ‘useless’ and considers himself to be ‘a waste of breath’ and that he shouldn’t be here. As with much of the history it was quite difficult to pin him down on specifics and he seemed somewhat resentful at being pushed for these. A couple of nights a week he will lie in a recliner rather than going to bed. Most nights he will take his medication around 10pm but will not get to sleep for some hours afterwards. He described broken sleep for 5-6 hours. When he gets up, has breakfast and medication that his wife helps him prepare. His function was quite hard to elicit as, initially, he said he spends much of the day sitting in front of the television or playing Solitaire but later corrected this, saying that he will do such things for only 10-15 minutes before moving onto something else or walking around the home. He said he has watched nearly every movie on Netflix but cannot watch a whole movie at a time and will now watch fishing shows for short periods. He no longer does any rock fishing because he is physically unable to, as well as feeling that he does not want to. His wife works part-time and is around much of the day. His son, who also lives with him, will often have gone early. He no longer plays the shoot-‘em-up hunter game described by the AMS because his X-Box has ‘died.’ He was at pains to record that this was purely a solitary game with no social component. He described great physical difficulty doing jobs around the home but also that he does not want to do so. He said he does not help prepare food but will put the dishwasher on, and pushes the trolley when they go shopping. He drives rarely but when he does said that if he stops at the lights he is fearful that he will be rear-ended. He is a nervous, over-aroused driver and passenger and lives where he does to avoid being in too many traffic light junctions. He can experience some road rage and is a difficult back seat driver. He said his dyslexia has stopped him from looking at courses, having failed a course 20 years ago. He described little interest in doing anything else, seeing himself as almost totally disabled, although has some hope that things will change in the future. Even if people come over he will at times take himself off into another room because he is anxious and dislikes being with people.
3. Findings on clinical examination
Mr Ploeger was casually-dressed, wearing a hoody. He sat without apparent discomfort for an hour. He was dysphoric, disengaged and disliked being probed or asked questions to clarify the matters raised by the Panel. He said this triggered and pressured him, and he felt as though I was ‘standing over’ him.’ He was a discursive speaker, focusing very much on the negatives and it was difficult at times to elicit specifics. He described both cardinal features of depression and a range of other physical and cognitive features, re-experiencing phenomena, avoidance, hyperarousal, hyperstartle, noise intolerance and anxiety. He described day-to-day cognitive difficulties, persisting at tasks for a long time, and showed some difficulties in focusing and concentration within the assessment itself.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Mr Ploeger continues to describe significant Posttraumatic Stress Disorder and Major Depressive Disorder despite psychotherapy and psychotropic treatment. We attempted to address inconsistencies between the associated impairment he described arising from these work-related injuries and the those recorded by the AMS. I note the difficulties in eliciting a full history from Mr Ploeger which somewhat undermines the assertion that the MA failed to make proper inquiries as to obtaining all the relevant information.
I concur with the AMS in his assessment of the classes of self-care, travel and social functioning.
However, Mr Ploeger reported doing virtually no social and recreational activities. He has relinquished some of his social and recreational activities due to his physical state, e.g. fishing, but reported no social component to his game-playing and that he will at times leave the room when others arrive, indicative of a class 3 moderate impairment, (although I note there are some elements of a class 4 severe impairment.) I also concur with the appellant that he has a moderate impairment in concentration, persistence and pace. He reported only being able to play games or watch TV for 10-15 minutes and doing nothing else cognitively-demanding, as well as demonstrating some cognitive deficits within the interview itself, particularly with working memory and focus. He very specifically stated that he did not play games or watch TV for prolonged periods of time but did so intermittently, losing focus frequently and moving onto other tasks. Finally, in terms of employability, although there is a contribution from his physical condition, his irritability, mood instability, avoidance, low self-esteem and anergia would effectively prevent him from being able to gain any remuneration on the open job market and he reports undertaking no functional activities around the home, a total impairment.
This results in classes of: 3, 3, 2, 2, 3, 5; total 18, median class 3, equating to a 22% whole person impairment.
[image unable to replicate]
Signed: Professor Nick Glozier
Date: 9 May 2022”
The Appeal Panel adopts the further history Professor Glozier obtained when he examined the appellant and also adopts Professor Glozier’s findings from his clinical examination. That is the most recent history and the most recent findings on the appellant’s clinical state to enable an assessment of the appellant’s impairment. The Appeal Panel is satisfied that Professor Glozier conducted a thorough examination of the appellant. The Appeal Panel also adopts the diagnoses of Professor Glozier which is Posttraumatic Stress Disorder and Major Depressive Disorder.
Having regard to the further history Professor Glozier obtained from the appellant and also Professor Glozier’s findings from his clinical examination of the appellant, the Appeal Panel also considers that the appellant’s impairment in the categories of self care and personal hygiene, travel and social functioning are respectively to be classified as, 3, 2 and 2.
The Appeal Panel also considers that the appellant’s capacity within the category of social and recreational activities is particularly limited and, as Professor Glozier has indicated, correlates with a moderate impairment. Further, the Appeal Panel also considers, as Professor Glozier has, that given the extent to which the appellant is able to play games and watch television and the cognitive deficits he demonstrated during Professor Glozier’s examination of him, that the appellant’s impairment in the category of concentration persistence and pace is to be rated as moderate. Further, noting as Professor Glozier has done, the appellant’s irritability, mood instability, avoidance, low self esteem and anergia, his impairment in the category of employability is total.
Consequently, consistent with what Professor Glozier has reported to the Appeal Panel, the appellant’s impairment in the PIRS categories of self help and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace and employability are, at the time Professor Glozier examined the appellant, correctly rated as being, respectively, 3, 3, 2, 2, 3 and 5. The aggregate of those scores is 18 and the medium is 3, which equates to 22% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 May 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Julian Parmegiani and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological injury/mind | 23/3/99 | Chapter 11 | 14 | 22% | - | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
Marshal Douglas
Member
Professor Julian Parmegiani
Medical Assessor
Dr Patrick Morris
Medical Assessor
0
5
0