Quintiliani-Johns v Secretary, Department of Education
[2023] NSWPICMP 610
•23 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Quintiliani-Johns v Secretary, Department of Education [2023] NSWPICMP 610 |
APPELLANT: | Flavia Quintiliani-Johns |
RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Richard J Perrignon |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 23 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment (psychological); whether assessor erred in assessing the psychiatric impairment rating scale in self-care and personal hygiene or social and recreational activities; whether he erred in making a deduction of one half for pre-existing condition of bipolar disorder type 1; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Quintiliani-Jones, appeals from the Medical Assessment Certificate of Medical Assessor Smith dated 7 July 2023. He examined her on 21 June 2023, and assessed a 4% whole person impairment (psychological) as a result of injury on
21 April 2021.He assessed two of the psychiatric impairment rating scales (PIRS) as follows:
(a) Self care and personal hygiene: Class 2 impairment, and
(b) Social and recreational activities: Class 2 impairment.
From an initial assessment of 9% whole person impairment, he deducted one half to account for a pre-existing condition of bipolar disorder type 1, yielding 4% whole person impairment.
The respondent correctly concedes that the final figure should have been rounded up to 5% whole person impairment. This necessitates setting aside and replacing the Medical Assessment Certificate.
The appellant submits that the assessment of the two rating scales above demonstrates error and the application of incorrect criteria, and that in each case the evidence supported a class 3 impairment.
She also says that the making of a deduction for a pre-existing condition demonstrates error, and that if any deduction was supportable, it should have been no greater than one-tenth.
The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:
(a) In respect of Self care and personal hygiene:
(i)the reasons given by the Medical Assessor for assessing a class 2 impairment appear in his PIRS summary. They make no mention of the worker skipping meals or her being dependent on her husband to cook all but one meal per week, detailed in the history taken;
(ii)on that history, the worker does not satisfy the criteria for class 2 impairment, because it cannot be said she is able to live independently, looks after herself adequately, or only sometimes misses a meal, and
(iii)the evidence supports a class 3 impairment, because she skips meals and showers, maintaining only a minimum level of hygiene and nutrition, relies on her husband to cook, forgets to eat, relies on others to do the housework, is indifferent to her appearance managing the basics only, and requires regular support and prompting.
(b) In respect of Social and recreational activities:
(i)the Medical Assessor took a history that the worker rarely goes out to social events, and only with a support person – usually her husband or daughter;
(ii)in his PIRS summary, the Medical Assessor reasoned that the worker ‘regularly socialises with family and few close friends’. That finding is unsupported by the history taken, namely that she socialises with her husband and daughter, who live with her;
(iii)interacting with them is not a social activity, and is properly assessable under the scale, ‘social functioning’. Nor is walking alone or with her daughter or therapy for the effects of injury;
(iv)attendance at a dialectical behaviour therapy (DBT) group is likewise not assessable under this scale. It is not a social activity. It is a treatment, and
(v)the history taken by the Medical Assessor, which is consistent with the statement evidence, supports a class 3 assessment.
(c) With respect to the deduction of one half for the effects of pre-existing bipolar disorder type 1:
(i)the Medical Assessor failed to provide reasons for finding that the worker suffered from bipolar disorder type 1 prior to injury, though it is uncontroversial that she does now;
(ii)he wrongly assumed that events at work from 20 March 2019 pre-dated injury, whereas in fact she was already suffering from the effects of psychological injury, which resulted from workplace stressors occurring from 20 March 2019 to 21 April 2021;
(iii)in fact, the pre-existing condition was bipolar disorder type 2, which did not impact on her work capacity prior to injury;
(iv)the behaviour relied upon by the Medical Assessor to establish the existence of pre-existing bipolar disorder type 2 (summarised at pp8-14 of his reasons) occurred after injury, not before;
(v)a deduction of one tenth is consistent with the Medical Assessor’s finding that it is difficult to determine;
(vi)though it is conceded that ‘She had a pre-existing condition for which she had received treatment and which may have contributed to some degree to her injury’, the Medical Assessor’s finding that one-tenth is at odds with the evidence is incorrect, because there is no evidence that any psychological disorder interfered with her work performance prior to 20 March 2019, and
(vii)it ‘could not be said that half of the worker’s impairment was caused by a pre-existing condition’. Both Dr Allan, upon whose assessment the worker relied, and Dr Cassimatis, upon whose assessment the insurer relied, deducted one tenth.
The respondent submits in brief summary as follows:
(a) In respect of Self care and personal hygiene, the reasons given by the Medical Assessor in his PIRS table were sufficient to justify a class 2 impairment, and were not inconsistent with the history he took and the evidence before him.
(b) In respect of Social and recreational activities, the reasons given by the Medical Assessor in his PIRS table were sufficient to justify a class 2 impairment, and were not inconsistent with the history he took and the evidence before him.
(c) With respect to the deduction of one half for the effects of pre-existing bipolar disorder type 1:
(i)the Medical Assessor provides detailed reasons for diagnosing a pre-existing type 1 bipolar disorder, including a detailed history of events prior to the worker’s return to work in 2019, and the effects on her condition of the workplace events which themselves aggravated her condition;
(ii)on 11 May 2023 Dr Martin, on whose opinion the worker relied, diagnosed bipolar disorder without specifying the type;
(iii)the Medical Assessor ‘was correct in assessing the proportion of the impairment that is due to any pre-existing condition consistent with section 323’, as [11.10] of the Guidelines is inconsistent with section 323: Camden Council v Harle [2022] NSWPICMP 339, and
(iv)the deduction of one half is supported by the available medical evidence.
Self care and personal hygiene
The criteria for rating class 2 and 3 impairment in Self care and personal hygiene are as follows:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment:
“Ms Quintiliani-Johns can live independently but is less concerned about her appearance, sometimes skips showering or brushing her teeth and does not maintain her self-care to the pre-injury standard. She is able to maintain a minimal level of hygiene and nutrition independently.”
He had taken the following history at [4] under the heading ‘Social activities/ADL’s’:
“She cannot follow recipes. Whereas she used to enjoy cooking, she now finds it difficult and becomes angry and frustrated. She cooks once a week, but her husband cooks the rest. Her husband and daughter do most of the housework. …
She skips meals and has gained weight. She showers at least every second day and often skips a day. She usually brushes her teeth daily but sometimes skips a day. She has not had a dental check-up in the last 12 months. She had previously been more regular. She had a haircut six weeks ago, the first since Christmas. She used to have it cut more regularly. She said she has never been one to go to the beautician. She is indifferent to her appearance and manages the basics only. She wears the same jewellery because she cannot be bothered changing it. She has not been for an eye check for two years.”
While some of this history was not quoted in the reasons given in the PIRS Table for assessing a class 1 impairment, the Medical Assessor’s reasons are to be read as a whole.
In summary, the Medical Assessor found that the appellant showers at least every second day, and brushes her teeth daily, though she often or sometimes skips a day; that she cooks once a week relying on her husband to cook for the rest of the time; that she leaves most of the housework to her husband and daughter; that does not visit the dentist or optician as often as previously; and that the frequency of haircuts, visits to the beautician and changing of jewellery has been adversely affected by the fact that she has become indifferent to her appearance.
It was the task of the Medical Assessor to determine in which category the behavioural consequences of psychological injury best fit, by applying the descriptors in each class of impairment as examples: Guidelines at [11.12].
Whether the facts fit better into class 2 or class 3 is a matter of opinion on which reasonable minds might differ. In our view, they fit better into class 2, because the history was consistent with a class 2 impairment, and no history was taken to the effect that a community nurse has to visit to ensure minimum levels of hygiene and nutrition, or that the worker skips meals (as distinct from eating meals prepared by others), or that the worker needs prompting to wear clean clothes –which might be consistent with a class 3 impairment.
The criteria in each class are not prescriptive, but they must be considered in determining into which of two classes a given set of behavioural consequences best fits.
In our view, it was well open to the Medical Assessor to assess a class 2 on the history taken, even if reasonable minds might differ. A mere difference of opinion does not demonstrate error or the application of incorrect criteria. We can discern neither. This ground fails.
Social and recreational activities
The criteria for rating class 2 and 3 impairment in Social and recreational activities are as follows:
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.
In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment – emphasis added:
“Ms Quintiliani-Johns regularly socialises with family and a few close friends. She can leave her residence and occasionally goes out for social or recreational activities. She attends yoga, walks and swims regularly. She participates in once a month in Arts in Recovery activities. She attends a dialectical behaviour therapy group therapy program [sic, dialectical behaviour therapy group program] as part of her treatment. She is less interested in social and recreational activities than she was prior to the injury. Most of her activities are home based or structured around her immediate family.”
He had taken the following history at [4] under the heading ‘Social activities/ADL’s’:
“Ms Quintiliani-Johns feels anxious about socialising. She feels that she cannot trust people anymore. She might go to her in-laws in the next suburb with her husband. She averages once a fortnight for a cup of tea and a chat, mostly accompanied by her husband. ... The dialectical behaviour therapy program is based at The James Fletcher Facility. Usually, her husband drives her, although occasionally, she drives alone.
She attends an Arts in Recovery program on the third Thursday of the month, which she resumed this year. She attends an arts program in Maitland called Journeys on the third Friday of the month. She drives herself to Arts in Recovery and catches the train to Maitland outside peak times. She has tried to go out with her husband but is concerned she will see someone she knows. She might go to a restaurant every three months. She talks to her friend on the phone occasionally, catches up with her cousin for yoga once a week, and has been three times this year.
She enjoys swimming. Her husband accompanies her to the Merewether Baths once or twice a week. She enjoys walking and likes to try to keep fit. …. She walks with her daughter occasionally, and they may go to the shops together. She denied interstate or overseas travel. She travelled to Coffs Harbour to see her daughter for a few days with her husband earlier in the year. She said she does not have other friends. She said she had had some friends from school, but her friend now lives in the Northern Rivers. She said they talk occasionally. She talks to one of the ladies she used to work with every three months. She said she had trouble keeping friends when her life was busy with children and working, and as the children got older, they lost contact.
She has contact with her two cousins. She is close to the one she accompanies to yoga and their sister. She occasionally sees her sister-in-law, at Easter and Christmas. Her children visit less than monthly, and she talks to them once a week.”
This history was interpreted by the Medical Assessor in the way that he summarised in his PIRS Table, extracted above. Essentially, he interpreted the history to mean that the worker ‘socialises with family and a few close friends’, occasionally goes out for social or recreational activities, participates in once a month in her Arts in Recovery program, attends a dialectical behaviour group therapy program (also monthly), even though she is “less interested in social and recreational activities than she was prior to the injury” and her social and recreational activities are mostly “home based or structured around her immediate family”.
In our view, that was a reasonably accurate summary of the history taken. It is consistent with the exemplars for a class 2 impairment. It was reasonably open to the Medical Assessor to find that the behavioural effects of injury best fit the exemplars for a class 2 impairment.
Whether or not those effects were also consistent with the exemplars for a class 3 impairment, and better fit those exemplars, is a matter of opinion on which reasonable minds might differ. In our view, they do not better fit the exemplars for a class 3 impairment, because the evidence does not satisfy us that the worker will not go out without a support person – even though she may take a support person from time to time – or that she is not actively involved in social and recreational activities, remaining quiet and withdrawn.
Our opinion, however, is beside the point. As it is a matter of opinion, the omission to assess a class 3 impairment is not one which discloses error of any kind. This ground also fails.
Deduction for pre-existing condition
The appellant submits that the Medical Assessor erred in diagnosing a pre-existing condition of type 1 bipolar disorder because it was not diagnosed by other clinicians, and because the events he relied on in support of that conclusion occurred after injury.
The Medical Assessor was not bound to accept the opinions of other clinicians, including their diagnoses. The fact that his opinion differed from other clinicians does not, of itself, demonstrate error or the application of incorrect criteria.
At [11b], he gave the following reasons for finding that there was a pre-existing condition of bipolar disorder type 1:
“(i) The history and documentation confirm that Ms Quintiliani-Johns has a pre-existing condition, specifically bipolar disorder type 1. This impacted her role and function at work leading up to the injury. In determining the burden of impairment and apportion [sic, apportionment] of pre-existing conditions I considered Ms Quintiliani-Johns’ self-reported history, the documentation provided, documented collateral history from her husband, the natural history of bipolar disorder type 1 and reports from several independent medical examiners.
(ii) Bipolar disorder type 1 substantially impacts the work related injury, is a major mental illness, and influenced her behaviour in the workplace.”
His reference to ‘history and documentation’ was a reference to the medical reports and other documentary evidence exhaustively summarised by him at [10c], including reports of independent medical examiners, consultation notes of treating clinicians, discharge summaries, the worker’s statements, a statement by her school principal, and an investigation report. Of these, a report by the worker’s treating general practitioner dated
17 January 2019 referred to a history of depression commencing 25 years previously, the taking of antidepressant medication over a period of 20 years, and to her fluctuating mental state over that period.The appellant’s submission that this evidence goes only to the period after 20 March 2019 must be rejected. It is evidence relevant to the appellant’s psychological condition prior to injury, noting that the injury alleged was a psychological injury resulting from an accumulation of work stressors from 20 March 2019. The Medical Assessor was both obliged and entitled to have regard to this evidence in identifying the existence and nature of a pre-existing condition, as he did.
We can discern no error in his determination that bipolar disorder type 1 existed prior to the work stressors which caused injury.
However, having established that there was a pre-existing condition of bipolar disorder type 1, it was the task of the Medical Assessor to determine whether that disorder contributed to current impairment. He gave the following reasons at [10b] for doing so:
“(ii) Bipolar disorder type 1 substantially impacts the work related injury, is a major mental illness, and influenced her behaviour in the workplace.”
He explained at [10c]:
“(i) The current impairment is a product of both a pre-existing psychological disorder and the effects of the subject injury. Ms Quintiliani-Johns’ pre-event psychological status was fragile and impacted her work function. The index event worsened a pre-existing clinical level psychiatric disorder. There is link with work related stressors, although the direction of causation is unclear.”
We interpret this to mean that, in the view of the Medical Assessor, the pre-existing bipolar disorder had influenced the worker’s behaviour at work, and that, from March 2019, events at work had aggravated the effects of the pre-existing bipolar disorder. This amounts to a finding that the pre-existing condition had a causal relation with injury.
In order to find that a pre-existing condition contributes to current impairment, an assessor must be satisfied that, but for the existence of the pre-existing condition, current impairment would not be as great as it is: Ryder v Sundance Bakehouse [2015] NSWSC 526. So far as the reasons disclose, the Medical Assessor did not turn his mind to that issue.
Even if his omission to do so demonstrates error, it is of little consequence in this case, because the Medical Assessment Certificate is to be set aside and repaced in any event, and the test in Ryder is readily satisfied by the facts. After the onset of work stressors on
20 March 2019 which caused psychological injury, the worker became incapable of working, suffered the adverse behavioural consequences of injury summarised by the Medical Assessor in his PIRS Table, and was admitted to the mental health unit of the Mater Hospital in Newcastle as an involuntary patient in February 2022 with a manic episode with psychotic features. These represent a substantial deterioration when compared with her pre-injury condition. In the absence of bipolar disorder type 1, it is highly unlikely that she would have suffered symptoms or behavioural consequences as severe as these. In our view, her impairment would now be less than it is. The pre-existing bipolar disorder contributes to current impairment.We turn to consider the extent of the deduction. Before the onset of work stressors on
20 March 2019, the applicant was working, notwithstanding difficulties which she was experiencing as a result of the pre-existing bipolar disorder. As indicated, after the onset of work stressors which aggravated her symptoms, she became incapable of working, suffered the adverse behavioural consequences of injury summarised by the Medical Assessor in his PIRS Table, and was admitted to the mental health unit of the Mater Hospital in Newcastle as an involuntary patient. Even though it might be said that the extent of the deduction is difficult or costly to determine, that evidence in our view is at odds with a deduction of one-tenth.At [10(c)(i)], the Medical Assessor found:
“I cannot conclude that the greater portion of her psychological impairment arises from the work related aggravation. The pre-existing condition and the work related injury had substantial impacts; one is not greater than the other.”
It is not possible to determine with precision the relative contributions to impairment of the pre-existing bipolar disorder and psychological injury. Nevertheless, we agree that the contribution to current impairment by the pre-existing bipolar disorder on the one hand and psychological injury on the other are about equal, because the bipolar disorder type 1 has continued to affect the appellant to a significant degree, its effects continue to be significant, and those effects have been significantly increased by psychological injury. In our view, a deduction of one half is open on the evidence, and accurate.
Conclusion
For the reasons given, the Medical Assessment Certificate of Medical Assessor Smith is revoked and replaced with the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W1418/23 |
Applicant: | Flavia Quintiliani-Johns |
Respondent: | Secretary, Department of Education |
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 Smith 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) |
| Psycho-logical | 11, page 55-60 | 14 | 9% | 5/10 | 5% | |
| Total % WPI (the Combined Table values of all sub-totals) | 5% | |||||
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE ISSUED BY THE APPEAL PANEL, PERSONAL INJURY COMMISSION.
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Flavia Quintiliani-Johns | Claim reference number (if known) | W1418/23 |
| DOB | Age at time of injury | 56 | |
| Date of Injury | April 21 2020 | Occupation at time of injury | Teacher Librarian |
| Date of Assessment | June 21 2023 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. Bipolar disorder type 1 – depressive phase. | 2. | |||||||||
| 3. | 4. | ||||||||||
| Psychiatric treatment | Psychotherapy, psychiatric review, and mood stabilisers. | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 | Ms Quintiliani-Johns can live independently but is less concerned about her appearance, sometimes skips showering or brushing her teeth and does not maintain her self-care to the pre-injury standard. She is able to maintain a minimal level of hygiene and nutrition independently. | |||||||||
| Social and recreational activities | 2 | Ms Quintiliani-Johns regularly socialises with family and a few close friends. She can leave her residence and occasionally goes out for social or recreational activities. She attends yoga, walks and swims regularly. She participates in once a month art and recovery activities. She attends a dialectical behaviour therapy group therapy program as part of her treatment. She is less interested in social and recreational activities than she was prior to the injury. Most of her activities are home based or structured around her immediate family. | |||||||||
| Travel | 2 | Ms Quintiliani-Johns can travel locally without a support person, such as to the local shops. She prefers to be accompanied. She travels on the train to Maitland for recovery activities once a month outside of peak travel times. | |||||||||
| Social functioning | 2 | Ms Quintiliani-Johns has maintained supportive and enduring relationships with her immediate family. Her mental state has strained her relationships and she feels burdensome on her family at times. She is apprehensive about seeing people outside of her immediate family, particularly people known to her from her former employer. | |||||||||
| Concentration, persistence and pace | 3 | Ms Quintiliani-Johns avoids intellectually demanding activities. She tires easily. She is unable to read. She lacks drive and motivation. She is prone to rumination. She procrastinates and has difficulty following conversations or movies. | |||||||||
| Employability | 5 | Ms Quintiliani-Johns is totally impaired and cannot work at all. | |||||||||
| Score in ascending order | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 5 | = 2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| 2+2 | +2 | +2 | +3 | +5 | 16 | 9% WPI | |||||
0
2
0