Ross v Teys Australia Southern Pty Ltd
[2023] NSWPICMP 345
•21 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ross v Teys Australia Southern Pty Ltd [2023] NSWPICMP 345 |
| APPELLANT: | Dean Ross |
| RESPONDENT: | Teys Australia Sothern Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Michael McGrowdie |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 21 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury with a deemed date of 3 April 2020; appeal against Assessment of Medical Assessor (MA) with regard to the Psychiatric Impairment Rating Scale Categories; applicant suffered from pre-existing learning disability and its effect on the assessment concentration, persistence and pace; comparison required of pre-injury functioning and post; Panel assessed that the Class 2 assessment of the MA was not in error; the Panel concluded that the MA had fallen into error in assessing Self-care and Personal Hygiene as Class 2, and assessed a Class 3 instead given his level of dependence; Held – Medical Assessment Certificate confirmed revoked and replaced; overall whole person impairment remained at 7%. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Ross, appeals from the Medical Assessment Certificate of Medical Assessor Dr Clayton Smith dated 3 February 2023.
Mr Ross worked on a full-time basis as a boner at the respondent’s Abattoir in a region of New South Wales. He suffered psychological injury as a result of ‘bullying’ which commenced when he went on light duties following a work-related injury, namely carpel tunnel injury. The deemed date of injury is 3 April 2020.
Medical Assessor Smith assessed a 7% whole person impairment (psychological). In doing so, he assessed a class 2 impairment in respect of the rating scales Concentration, persistence and pace, and, Social and recreational activities.
Mr Ross says that his assessment of these two rating scales demonstrated error, because the evidence supports a class 3 impairment (rather than a class 2) in respect of each scale.
The delegate was satisfied that, on the face of the application, there is at least an arguable case in respect of demonstrable error. 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 in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination to obtain a fuller history and a clearer picture of how the appellant has been affected in the two areas, particularly in relation to Concentration, persistence and pace because it was unclear how the Medical Assessor had treated Mr Ross’ long-term learning disability with the written word.
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.
SUBMISSIONS
Both parties made succinct written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In respect of Concentration, persistence and pace –
13. In summary the appellant submits that:
(a) The Medical Assessor should have taken Mr Ross as he found him, that is as a person with a learning disability and assessed the effect of the injury on him in respect of Concentration, persistence and pace.
(b) The appellant told the Medical Assessor that during the day, while watching over his young son, he generally watches tv and plays games on his phone but has difficulty persisting with tasks.
(c) The Medical Assessor should not have reduced the Appellant’s rating by taking into account that the appellant already had difficulties with the written word. The appellant states, after referring to the SIRRA Guidelines that Mr Ross’ inability to persist with tasks and become internally preoccupied (Medical Assessment Certificate, page 8) equates with the inability to follow a manual at work or read anything other than a newspaper article or concentrate for any longer than 5 minutes on an internet task.
In reply, the respondent submits as follows:
(a) A class 2 impairment was reasonably open on the evidence because the Medical Assessor noted that the appellant’s premorbid cognitive function was reportedly affected by his learning disability and had problems with literacy such that the appellant had never been inclined to intellectually demanding tasks.
(b) The Medical Assessor properly focussed on the appellant’s ability to concentrate when driving for up to three hours, watching tv for long periods and playing games on his mobile phone.
(c) The Medical Assessor has had consideration of the behavioural consequences as a result of the appellant’s psychological disorder and not treated the appellant’s learning difficulty as a condition.
In respect of Self-care and personal hygiene –
In summary, the appellant submits that:
(a) Mr Ross needs prompting to shower and change which are washed and cleaned by his partner. He only showers every few three to four days. The appellant’s submissions refer to Table 11.1 of the SIRA Guidelines \which refer to not being able live independently and needs prompting to shower.
(b) The appellant lived with his parents and now, his partner. He has never lived independently and would not be able to do so. He considers himself a stay at home dad.
In summary, the respondent’s submissions are:
(a) The Medical Assessor focused on the fact that the appellant was looking after himself adequately and stated that since the birth of his son, he has had to be more responsible.
(b) The Medical Assessor recoded that the appellant appeared unkempt occasionally and sometimes misses a meal, but is able to care for his children.
(c) The appellant has moved away from requiring the support of his parents to move in with his partner.
FINDINGS AND REASONS
Concentration, persistence and pace
The criteria for Classes 2 and 3 Impairments in the Guidelines are as follows;
Class 2 – Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods up to 30 minutes, then feels fatigued or develops headache.
Class 3 - Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
The Medical Assessor gave the following reasons for assessing a Class 2 impairment:
“Mr Ross’ premorbid cognitive function was affected by a learning disability and problems with literacy. He has never been inclined to intellectually demanding tasks. The effect of the adjustment disorder has affected his motivation to engage or persist with tasks, and he becomes internally preoccupied in social settings. I consider this consistent with a Class 2 mild impairment.”
Self-Care and personal hygiene
The criteria for Classes 2 and 3 impairments in the Guidelines are as follows:
Class 2 – Mild impairment: Able to live independently: looks after self adequately, although looks 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 a meal. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.
The Medical Assessor gave the following reasons for assessing a Class 2 impairment:
“Mr Ross neglects his self-care and personal hygiene but looks after himself adequately. He looks unkempt occasionally and sometimes misses a meal. He is able to look after his children.”
The Panel considered that it was appropriate and desirable to re-examine the appellant with regard to the two categories the subject of appeal.as errors were identified. Firstly. The Medical Assessor considered irrelevant information, namely, caring for his children in assessing Self-care and personal hygiene. Second, in terms of Concentration, persistence and pace, the Medical Assessor’s and does not provide sufficient explanation Class 2 is more appropriate than Class 3and his explanation is also consistent with Class 3 explanation is is non-specific Dr Blom undertook the re-examination of the appellant.
RE-EXAMINATION BY DR BLOM ON 15 JUNE 2023
Set out hereunder is the re-examination report of Dr Blom:
The workers medical history, where it differs from previous records
Mr Ross essentially confirmed the history presented by Dr Smith. I will briefly summarise this below.
Mr Ross was working as a boner in an abattoir when he sustained a carpal tunnel syndrome injury. He had a brief time off work during which time he underwent a surgical procedure. He returned to light duties. Because of his changed duties, he began to be bullied, harassed and belittled by both his supervisor and co-workers. As a result, Mr Ross began to experience a variety of anxiety and depressive symptoms. He said that he felt increasingly flat and irritable with a general reduction in his mood. He became increasingly isolated and withdrawn, becoming increasingly anxious about seeing co-workers from the abattoir. He experienced significant sleep disturbance and associated daytime fatigue. His motivation fell and he began to feel worthless, hopeless and guilty.
He left work around April 2020 and has not returned since. Around the time of leaving work his alcohol intake increased significantly, to the point that he was drinking up to 18 beers (about 25 standard drinks) every day. His partner became pregnant in 2020 and following the birth of his son he reduced his alcohol intake, although he said that he continues to drink up to 10 beers (about 14 standard drinks) on one or two days per week.
In approximately October 2022 Mr Ross moved from Tamworth where he had been living with his parents, to Manila to live with his partner Bonnie as well as his son and Bonnie’s daughter whom he regards as his stepdaughter.
Since his injury he has received treatment from his general practitioner, Dr Hassan whom he consults approximately every month. He has been trialled on a variety of antidepressants but had been prescribed sertraline 100 mg/day for approximately 18 months prior to Dr Smith’s assessment. He had also began consulting a psychologist approximately six months prior to that assessment, consulting her approximately monthly although this was disrupted on a couple of occasions because the psychologist was ill. Prior to consulting this psychologist, he consulted a psychologist via phone on about six occasions.
Additional history since the original Medical Assessment Certificate was performed.
Since his consultation with Dr Smith, Mr Ross has had his antidepressant medication changed from sertraline to venlafaxine, currently at a dose of 75 mg/day. He said that he has not noticed any change in either his symptoms or capacity to do things since the change in medication. Otherwise there has been no change in his overall circumstances. There has been no change in his symptoms or in his level of impairment.
He said that he experienced an episode of chest pain about three months ago and was assessed at the local hospital. He was told that the cause of his chest pain was stress and anxiety. No specific treatment was advised.
He continues to live with his partner Bonnie, his stepdaughter and son. He appears particularly devoted to his son’s care.
Current symptoms.
Mr Ross said that his mood continues to be low with feelings of worthlessness, occasional hopelessness and periods of guilt, because he feels that he is not supporting his family. He complained particularly of low motivation and drive. His energy is low. His sleep has improved and generally he says he sleeps about seven hours/night. His appetite is reduced, and he tends to only eat in the evening when Bonnie prepares a meal for him and encourages him to eat. He has not lost any weight he says. He does not experience suicidal ideation.
He continues to experience considerable anxiety around people and as a result continues to be avoidant and withdrawn. Overall, he is more irritable although he attempts to control this. He drinks alcohol about twice/week consuming approximately 8 – 10 beers (about 11 – 14 standard drinks) on each occasion.
He consumes tobacco reasonably heavy smoking approximately 100 g of loose tobacco per week. He consumes large amounts of caffeine, as coffee, drinking about 6 cups of coffee per day.
Current Treatment.
Mr Ross continues to consult his general practitioner, Dr Hassan, approximately every month. His medication was recently changed from sertraline to his current medication, venlafaxine currently at a dose of 75 mg/day. He also consults a psychologist approximately monthly. These consultations are held face-to-face in Tamworth.
Findings on clinical examination.
Mr Ross was seen via videoconference, using the Teams App. He had no difficulty in using the application and the quality of the vision was generally reasonable. Mr Ross was alone throughout the interview.
Mr Ross was cleanly and neatly dressed, wearing a baseball cap and a sleeveless jacket over a long sleeve shirt. He had an unkempt beard and moustache.
He related with a somewhat flattened affect and generally seemed to struggle to maintain engagement. He presented in a somewhat listless manner. Nevertheless, he presented as an honest witness and there was no evidence of dissembling or exaggeration.
He was not overtly depressed, except for the overall flattening of his affect. He was not suicidal.
He was not psychotic, and there was no evidence of delusions, hallucinations or formal thought disorder.
He was able to attend throughout a 60-minute interview although he struggled with his memory on occasions.
Diagnosis.
While Dr Smith made a diagnosis of “Chronic Adjustment Disorder with mixed anxiety and depressed mood”, I feel that a more appropriate diagnosis, using the DSM 5 classification is Persistent Depressive Disorder with anxious distress. This is essentially a nomenclature difference as generally DSM 5 limits adjustment disorders except in unusual situations to a period of six months following the stressor. Otherwise, I agree with Dr Smith’s description of Mr Ross’s symptomatology.
Matters under appeal.
The appellant worker has raised two grounds of appeal. He contends that there have been demonstrable errors in assessing: firstly, Self-care and Personal hygiene and secondly, Concentration, Persistence and Pace. Both of these were rated class 2 by the medical assessor while the appellant believes that class 3 is more appropriate for each scale.
Self-care and Personal Hygiene.
Mr Ross stated that he showers only every third or fourth day. Even then he said that he only showers when strongly encouraged to by his partner Bonnie because she says that he “stinks”. He only brushes his teeth about twice a week. When I asked why did not care for his hygiene, he said that he struggled with motivation and generally “couldn’t be bothered anymore”. He does change his clothes every two or three days, because Bonnie provides clean clothes. He does not eat except in the evening when Bonnie cooks a meal. During the day when Bonnie is at work, he does not tend to eat at all but drinks copious amounts of coffee. Prior to his injury he said that he would often cook a barbecue for Bonnie and himself but has not done this now for about six months. He does very little house work except for occasionally activating the robot vacuum cleaner. It was quite evident that he depended on Bonnie for both his nutrition and personal hygiene and that without her assistance he would not cope. Prior to moving in with Bonnie and the children, he lived with his parents and on questioning it was reasonably clear to me that his parents had previously played a similar caring role to that which Bonnie plays currently.
I note that my description is similar to that of the Medical Assessment of Dr Bench, dated 25 October 21. It also generally accords with the descriptions provided by Dr Smith in his Medical Assessment of February this year, although his class rating differs from my own, presumably as he placed more emphasis on Mr Ross’s capacity to manage his children. The latter is an error in classification.
Concentration, Persistence and Pace.
Mr Ross confirmed that he had a significant learning disability and as a consequence was functionally illiterate. As a result, I focused on his capacity to focus on material other than the written word. Mr Ross spends considerable time watching television throughout the day. In total it would appear that he watches in excess of six hours of TV/day. He said that he tends to watch news programs and documentaries. He is able to focus on a news program for between 20 and 30 minutes before becoming distracted, usually by playing a game or watching a YouTube video on his phone.
He watches documentaries for approximately an hour and said that he was able to maintain his attention for most of that period. He said that he did not have any great difficulty in following the show over that period.
He also plays a variety of simple games on his phone, although he said that he become bored with any particular game after about 10 minutes, he then changes to another game and continues playing for up to 30 to 40 minutes. He is able to focus on each game sufficiently to win reasonably regularly. He said that when he played games he could focus for approximately half an hour before becoming distracted. I believe that this rates class 2 for this scale.
I note that Dr Smith’s description of the Concentration, And Pace scale did not provide sufficient information for the panel to determine the accuracy of his class rating, however his class rating accords with mine.
The description that I have provided generally accords with the description provided by Dr Bench in his Medical Assessment.
Following my reassessment and combining my findings with the non-appealed scales from Dr Smith’s assessment, Mr Ross rates a whole person impairment of 7%.
This is derived from:
Self Care and Personal Hygiene – Class 3.
Social and Recreational activities – Class 2.
Travel – Class 2.
Social Functioning – Class 2.
Concentration, Persistence and Pace – Class 2.
Employability – Class 3.
In ascending order – 2, 2, 2, 2, 3, 3. The median class is to and the aggregate is 14 equating to 7% whole person impairment.
Upon considering the detailed matters referred to by Dr Blom, the Panel considers that the assessment of Medical Assessor Dr Smith with regard to Concentration, persistence and pace being a Class 2 impairment was the correct assessment. It is clear that the MA took the appellant as someone with a learning disability as he was, and assessed the effect of injury on the appellant with the descriptors considered with this in mind.
With regard to Self-Care and personal hygiene, the Medical Assessor has fallen into error by not giving due regard to the appellant’s reliance on his partner such that it is unlikely he could live on his own, and, his neglect in respect of personal hygiene such that the appellant should have been assessed as Class 3 rather than Class 2 which is a demonstrated error. The evidence does not support the expressed view of the Medical Assessor that the appellant ‘looks after himself adequately’.
In conclusion, the Appeal Panel has determined that the Medical Assessment Certificate issued on 3 February 2023 should be revoked, and a new Medical Assessment should be issued. The evidence before the Medical Assessor justified a Class 3 impairment in respect of Self-Care and personal hygiene. Our assessment reflects this,and is contained in the new certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1404/21 |
Applicant: | Dean Ross |
Respondent: | Teys Australia Southern Pty Ltd |
| 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 | 12/08/2019 | 11, page 55-60 | 14 | 7% | 0% | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
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)
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 | Dean Ross | Claim reference number (if known) | W1304/21 |
| DOB | **/**/**** | Age at time of injury | * |
| Date of Injury | 3 April 2020 | Occupation at time of injury | Boner at abattoir |
| Date of Assessment | 03/02/2023 | Marital Status before injury | Defacto |
| Psychiatric diagnoses | 1. Persistent Depressive Disorder with anxious distress | 2. | |
| 3. | 4. | ||
| Psychiatric treatment | Antidepressant medication, Limited psychological therapy | ||
| Is impairment permanent? | Yes | No (circle one) | |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-Care and personal hygiene | 3 | Mr Ross neglects his hygiene and is reliant on his partner in significant respects. He showers every 3-4 days and needs prompting. He neglects his teeth. His partner washes and cleans his clothes. His partner prepares the evening meal even though she works. Mr Ross only snacks during the day. | |||||||||
| Social and recreational activities | 2 | Mr Ross socialises freely with his and his partner’s immediate family. His capacity to socialise locally is limited by his apprehension about running into people from his former employer. He has and attended recreational venues when traveling outside his local area. He has withdrawn from previously enjoyed recreational activities such as shooting. He has reduced his fishing to once per month. | |||||||||
| Travel | 2 | Mr Ross’ travel is inhibited by his avoidance of Tamworth and areas where he may run into people from the abattoir. His capacity to travel is otherwise uninhibited. He can travel away from his own residence without a support person. | |||||||||
| Social functioning | 2 | Mr Ross has no difficulty in sustaining relationships with his immediate family and friends, He is engaged to his partner and is actively involved in family life, He is inhibited in forming new relationships by anxiety and fear of losing control of his anxiety or temper. | |||||||||
| Concentration, persistence and pace | 2 | Mr Ross spends in excess of six hours watching television throughout the day. Mr Ross tends to watch news programs and documentaries. He is able to focus on a news program for between 20 and 30 minutes before becoming distracted, usually by playing a game or watching YouTube video on his phone. He is able to focus on the task of driving for a number of hours. Given that Mr Ross had a significant learning disability and consequently was functionally illiterate, Mr Ross’ ability to focus on material and tasks rather than the written word was appropriate. | |||||||||
| Employability | 5 | As a result of his condition, Mr Ross cannot work at all in the same position. His psychological injury to less than 20 hours per week in a different position that is qualitatively different, particularly the degree of contact required with people. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 3 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| 3 | +2 | +2 | +2 | +2 | +3 | 14 | 7 | ||||
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