Riley v Uniting (NSW Act)
[2022] NSWPICMP 85
•12 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Riley v Uniting (NSW ACT) [2022] NSWPICMP 85 |
| APPELLANT: | Nikita Riley |
| RESPONDENT: | Uniting (NSW ACT) |
| APPEAL PANEL: | Member Jane Peacock Dr Douglas Andrews Dr Brian Parsonage |
| DATE OF DECISION: | 12 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological Injury; appellant alleged error in the assessment of one category under the Permanent Impairment Rating Scale (PIRS) namely employability and in the deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) of one-third in respect of pre-existing injury, abnormality or condition; the Panel found that the Medical Assessor (MA) erred in assessing Class 4 when he should have assessed Class 5 for employability; the Panel found the MA erred in making a deduction of one-third under section 323 of the 1998 Act; the deduction of 1/3 was not open to the MA on the available evidence which demonstrates that the appellant’s conversion disorder was not active at the time of the subject injury; she had some depressive symptoms but no documented impairment and her taking of antidepressant medication prior to injury cannot justify a 1/3 deduction, noting as well that MA diagnosed the appellant as suffering post- traumatic stress disorder as a result of the subject injury, a psychological condition which the appellant had not previously suffered; the Panel made a 1/10th deduction; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 December 2021 Ms Nikita Riley (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 1 December 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).
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.
Neither party sought that the worker undergo a further medical examination by a MA who is a member of the Panel.
As a result of their preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because even though the MA erred, for reasons set out more fully below, there was enough material before the Panel for a determination to be made.
EVIDENCE
Documentary 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 parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
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 MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 17/11/2013
· Body parts/systems referred: Psychiatric/Psychological disorder
· Method of assessment: Whole Person Impairment”
The MA 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. Psycho-logical
17/11/2013
11, page 55-60
14
17
1/3
11
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
11%
The worker appealed.
In summary, the appellant submitted on appeal:
· The MA erred when he assessed Class 4 for employability when he should have assessed Class 5.
· The MA erred when he deducted 1/3 under section 323 for pre-existing injury, abnormality or condition when he should have made no deduction or deducted 1/10.
In summary, the respondent submitted that the assessment of Class 4 for employability and the deduction of 1/3 under s 323 was open to the MA. The MA did not err or make an assessment on the basis of incorrect criteria and that the MAC should be confirmed.
Turning first to the assessment of the MA in the Pyschiatric impairment rating scale (PIRS) category of employability.
The role of the MA is to conduct an independent assessment on the day of examination. The MA 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 MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an 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 Guides provide as follows:
Table 11.6: Psychiatric impairment rating scale – employability
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 MA assessed Class 4 and explained his reasoning as follows:
Employability and Adaptation
4
Ms Riley has not worked since the subject injury and her anxieties impact on her work capacity.
She is not devoid of productivity or household contribution, such as home care. However, she is erratic in undertaking productive tasks as a result of her anxiety and depressive symptoms. She is productive around 20 hours per fortnight.
The MA explained why his opinion differed from the other medical experts whose opinions were in evidence before him as follows:
“In terms of employability, both Dr Frukacz and Dr Miller rated a 5. I rated 4 on the basis that she performs a range of activities at home which can be considered productive and may be remunerated under different circumstances.”
The MA has rated the appellant as having severe impairment at Class 4. He has taken into express account that she is able to perform home based activities that involve self-care and care for her child as a single parent. This does not equate to employability. An assessment that the appellant is able to perform self-care and care for her own child in her own home does not equate to an assessment of being able to perform remunerative work in a structured employment with the demands and expectations that must be met to receive remuneration. The Panel has taken account of all of the evidence including the MA’s own assessment that the worker has poor concentration and is impaired in concentration, persistence and pace such that she is unable to undertake complex tasks such as reading books or crocheting. While the MA is not bound by the assessments of other experts, the panel does note that no other expert assessed the appellant as less than totally impaired at Class 5 for employability. The Panel is not merely preferring its own opinion but is satisfied that having regard to all of the evidence, the Panel considers that the MA has erred and that the proper assessment is Class 5 for employability.
Turning now to the question of the deductible proportion under s 323.
It is well settled that a deductible proportion can only be applied under s 323 if, on the available evidence, the pre-existing injury, condition or abnormality has contributed to the overall level of permanent impairment assessed. If the extent of the contribution of the pre-existing condition would be too difficult or too expensive to assess, a 1/10 deduction should be applied.
The MA took a history of the work injury.
The MA took a history of pre-existing and subsequent conditions and recorded as follows:
“Details of any previous or subsequent accidents, injuries or condition:
Ms Riley said prior to the CPR incident she was ‘okay’ in her mental health. She ‘got on with things’ and recalled she was taking a low-dose antidepressant and there were no other psychological difficulties.
She could not recall the first time she started suffering mental health difficulties. I discussed with her about her father’s spinal surgery when she was 12 and she said that he was fine, and did not see any impact of his injury on her psychologically.
In terms of first psychological/psychiatric treatment, she recalled she started treatment after a relationship problem, where her partner forgot to tell her that he was married during their two-year relationship which ended in 2011. She felt down and then she was okay. Her GP prescribed low-dose antidepressant, which was Lovan/Prozac/fluoxetine. She was not sure if she came off the antidepressant medication before the CPR incident. I have discussed with her the entries in her GP file.
I asked about the conversion disorder diagnosis when she was 21. Ms Riley recalled she had to whisper or became mute. There were two episodes about a month apart. She did not recall any triggers.
She was in the relationship with her ex-husband, who is the father of her son, between 2012 and 2019. She reported that relationship with ex-husband is good and they get on well now.
I asked about IVF and whether there were stressors related to fertility. She said that she only had one round of IVF and it was successful and this was after CPR, and did not see any impact on her.
I asked about the complication in her pregnancy and she recalled she had an infection and ended up in hospital for a few days. She delivered when she was more than 38 weeks pregnant. At one point they were worried she might have a blood clot in the lungs and she recalled that at this point the doctors advised she return to work on light duty, but her employer could not accommodate this and that is why she had to stop work altogether.
I asked Ms Riley about parenting stress and she reported that there is no problem now, that initially he would not sleep and that is why they went to a Tresillian for a five-night stay when he was about 7 months old. He is doing well now.
I discussed the Tresillian report where they made a diagnosis of PTSD in relation to CPR incident for the first time, but also in relation to other stressors in her life contributing to her psychological condition. She advised she did not agree with their assessment that other life factors contributed.”
The MA conducted a mental state examination.
The MA summarised his diagnosis and explained his reasoning for making a 1/3 deduction under s 323 as follows:
“Ms Riley gave the history that she had suffered minor psychological difficulties previously and that she had recovered, and that after an incident at work in 2013 she suffered a major decline and has not made significant improvement since. She did not believe there were other contributing factors that are relevant to her current mental health. There is an abundance of information from the other assessors, as well as her treating doctors, that was not consistent with her recollection. The overall evidence confirmed a prolonged history of mental health difficulties, dating back to her childhood and certainly by her adolescence. Over the years, there has always been an element of depression/anxiety symptoms, and overall she could function well. Tresillian diagnosed a number of diagnoses, including chronic dysthymia, which is chronic low grade unremitting depressive symptoms.
After the 2013 incident at work, there is no question Ms Riley suffered a psychological decline, and in my opinion that injury has not resolved.
There is a question whether subsequent life events, related to her pregnancy, her son, and her ex-husband have caused a subsequent injury which are unrelated to her employment. Overall, my view is that the marital dissolution was at least partially related to her employment. The issue with the son has now resolved and is no longer relevant. Similarly, the issues with her pregnancy complication have resolved. Therefore, I have not diagnosed a subsequent injury.
In terms of Ms Riley's pre-2013 mental state, I noted an entry from her GP Dr Claire Noonan, 19 August 2013 which was just before the November 2013 subject incident. She was described having low mood, flat for over a week, feeling tired, hard to get sleep, broken sleep, wishing she was dead but not making any plans to achieve this. The management was to increase Prozac. In the review 28 August 2013 her GP noted Ms Riley was improving, and then next entry 25 November 2013 noted tiredness for a few weeks, and then a week ago incident at work where she had to resuscitate a lady, who was said to be fine. This would certainly suggest that Ms Riley's mental state was not stable before that incident and she was symptomatic in her psychological condition.
I noted the Supreme court upheld a ¼ deduction when there was a pre-existing injury, asymptomatic at the time of the subject injury. In the current case, there is a more extensive past psychiatric history and Ms Riley was symptomatic immediately before the subject accident. I think most assessors would assess her pre-existing injury as 1/3 to ½. I have applied a 1/3 deduction for her pre-existing impairment.
….
In terms of diagnosis, my view is that the 2013 incident is sufficient to fulfil the DSM-5 criteria for PTSD, particularly in a person with significant vulnerability and predisposition to anxiety. She also has pre-existing conditions, Generalized anxiety disorder and Persistent depressive disorder.”
In terms of consistency of presentation, the MA opined as follows:
“Ms Riley has recalled a past psychiatric history that was not consistent with the supplied document, and I have noted her response when I discussed her recorded history with her.”
He further explained his reasoning in respect of the s 323 deduction when answering the following specific question:
“(a) is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes, there was a pre-existing condition which contributes to a proportion of Ms Riley's loss and impairment. She confirmed that she was on antidepressant medication before the subject injury. I noted some of Ms Riley's past psychological symptoms were very similar to the symptoms arising from the subject injury. She has a pre-existing symptomatic disorder and I have considered the management of pre-existing injury under the Act and the Guides.”
The Panel considers that the explanation given by the MA for making a deduction of 1/3 is flawed. It is irrelevant to speculate what other assessors would assess as the MA has done here. There is no doubt that the appellant has a pre-existing condition which needs to be taken into account (the appellant concedes herself that a deduction of 1/10 is open to be made). The deduction of 1/3 is not open to the MA on the available evidence which demonstrates that the appellant’s conversion disorder was not active at the time of the subject injury. She had some depressive symptoms but no documented impairment and her taking of antidepressant medication prior to injury cannot justify a 1/3 deduction, noting as well that MA diagnosed the appellant as suffering post- traumatic stress disorder as a result of the subject injury, a psychological condition which the appellant had not previously suffered.
Accordingly the MAC will need to be revoked.
The new assessment of overall impairment is 19% whole person impairment (WPI) calculated as follows:
Score
Median Class
1
2
3
3
3
5
=3
Aggregate Score Impairment
Total
%
+
+
+
+
+
17
19
Applying a deduction of 1/10, after rounding leaves a 17% WPI as a result of injury on 17 November 2013.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 December 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 Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psycho-logical | 17/11/2013 | 11, pages 55-60 | 14 | 19 | 1/10 | 17 |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
Jane Peacock
Member
Dr Douglas Andrews
Medical Assessor
Dr Brian Parsonage
Medical Assessor
11 April 2022
0