Santos v Giesecke & Devrient Australasia Pty Ltd
[2021] NSWPICMP 190
•12 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Santos v Giesecke & Devrient Australasia Pty Ltd [2021] NSWPICMP 190 |
| APPELLANT: | Dean Santos |
| RESPONDENT: | Giesecke & Devrient Australasia Pty Ltd |
| APPEAL PANEL: | Member Jane Peacock Professor Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 12 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; appellant alleged error in the assessment under four categories under the Permanent Impairment Rating Scale (PIRS) namely Self Care and Personal hygiene, Social and Recreational Activities, Travel and Concentration, Persistence and Pace; Held - the Panel could discern no error in the assessments for which clear reasons were given and the ratings accorded with the criteria in the Guidelines; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 July 2021 Mr Dean Santos (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 21 June 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.
The appellant requested a re-examination. As a result of it’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error for the reasons set out further below. Absent error, the Appeal Panel has no power to require the appellant to undergo a further examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the MA for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 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: 14 October 2009
· Body parts/systems referred: Psychiatric/psychological
· 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 guidelinesChapter, 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) Psychiatric 14 October 2009 Chap 11, p 54-60 n/a 7% 7% 2. 3. 4. 5. 6. Total % WPI (the Combined Table values of all sub-totals) 7%
The assessment was based on his assessment under the Permanent Impairment rating Scale (PIRS) as required by the Guides as follows:
Table 11.8: PIRS Rating Form
Name Dean Santos Claim reference number W688/20 DOB 8 December 1982 Age at time of injury 26 years Date of Injury 14 October 2009 Occupation at time of injury IT engineer Date of Assessment 16 June 2021 Marital Status before injury Married
Psychiatric diagnoses Persistent depressive disorder current major depressive episode and anxious distress Psychiatric treatment Supportive therapy Is impairment permanent? Yes
PIRS Category Class Reason for Decision Self-Care and personal hygiene 2 Mr Santos sometimes lacks the motivation to maintain hygiene or to eat a healthy diet. During these times, he requires prompting from his wife to shower. However, much of the time, he participates in household chores, including cleaning, washing clothes and cooking. In addition, he is actively involved in the care of his son. Social and recreational activities 3 He has some social interaction with others, primarily through online gaming. He enjoys outings with his family but does not involve others. Other activities, such as playing music, are solitary activities. He rarely goes out in a social setting. Travel 2 He travels in the local area without support, for example, driving his son 20 km to and from school twice a day. He also goes four-wheel driving, but only with his wife present. He has some anxiety while driving, suggesting minor impairment. Social functioning 2 He has maintained close and loving relationships with his wife, mother and siblings. However, he has had a falling out with his father. He has kept friends with whom he talks regularly, but he does not see them much in person. They used to get together about once a year in Sydney, but this has been curtailed during the coronavirus pandemic. Concentration, persistence and pace 1 Mr Santos describes subjective difficulties with his memory, saying that he is easily distracted. On the other hand, he plays interactive computer games for many hours a week, is teaching himself to play the piano and reads technical computer manuals to maintain his competence in this area. As recently as 2019, he has studied at university level, achieving distinctions and high distinctions. He stopped his study in the field of psychology because he felt it was not for him. His condition has not deteriorated since the time of this study. Employability 4 Since going off work in 2009, he has worked about nine months in total, six months of those full-time. He has not worked since 2017. Given the severity of his symptoms, loss of confidence, and low motivation, he would struggle in a structured work environment and would not cope well with pressure. Likely, he could work part-time in a role that requires less skill and makes fewer demands, although his attendance may be erratic. Score Median Class 1 2 2 2 3 4 = 2 Aggregate Score Impairment 14 Total 7 %
The worker appealed.
In summary the appellant submitted that the MA erred in his assessment under four categories as follows:
(a) Self care and Personal Hygiene when he assessed a Class 2 and a Class 3 should have been assessed;
(b) Social and Recreational activities when he assessed a Class 3. The appellant did not submit as to what class should have been assessed;
(c) Travel when he assessed a Class 2 and a Class 3 should have been assessed, and
(d) Concentration, persistence and pace when he assessed a Class 1 and a Class 3 should have been assessed.
In summary, Giesecke & Devrient Australasia Pty Ltd (the respondent) submitted that the MA did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
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 MA took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs) as follows:
“Present symptoms:
His mood is low about 80% of the time, without diurnal variation. However, at times when he is well, he enjoys life and feels ‘normal.’
When unwell, he is unable to experience positive emotion.
He is anxious and on edge, finding it hard to leave his home without support.
His bothered by intrusive thoughts, he described these as a ‘mental loop’ of unwanted cognitions.
He has problems motivating himself but has no issues with concentration.
He had previously had problems with irritability and anger, but this has diminished significantly.
He has continuing thoughts of suicide, at times quite intense.
He falls asleep quickly but wakes several times through the night. He does not have nightmares.
His appetite is fine, but the quality of his diet varies.
· Details of any previous or subsequent accidents, injuries or condition:
· Social activities/ADL:
Mr Santos rises early, around 4-5 AM. He has a cup of coffee and reads the news until his son needs to be ready for school. He assists his son with dressing and breakfast, then taking him to school. He also picks James up from school at the end of the day.
His showering is irregular and often needs prompting from Kerri. For example, he may shower three times a day or go a week without.
He attends a gym, where he has a personal trainer, twice a week.
He helps with the housework including cleaning up the kitchen, washing clothes and general cleaning.
He has maintained a ‘keen interest’ in computers and is an active Internet gamer. He described this as a social activity with five or six others interacting by voice chat.
About half the time, he prepares the family meals.
He goes out with his family regularly for picnics or ‘gentle’ four-wheel driving.
He plays the guitar and is learning the piano, now spending more time with the latter instrument. He said that he ‘plays quite a bit of music.’
He sees his mother regularly and spends about two hours a week online with his brother. He has few other contacts outside the family.
His daily trip to drive his son to school is about 20 km each way. He often gets anxious when he drives alone, preferring his wife, and sometimes his mother, for support.
He remains close to his family members, except his father, with a falling out five years ago.
He has retained several friends with whom he talks regularly.
He has a good relationship with his mother, brother and Kerri. He has less contact with his sister in Melbourne, but there is no strain in the relationship.
He described being easily distracted, with subjective difficulties with memory. However, he reads technical information to keep up-to-date with computer technology. He has taken university-level courses but not completed a degree. However, during 2019, when studying at university, he achieved distinctions and high distinctions in his studies.
He said that he would love to be working but that ‘every time I’ve tried, I’ve run into conflict in the workplace making me not want to be there.’ He struggles with motivation and worries about being put under pressure again.”
The MA conducted a mental state examination and recorded his findings as follows:
“I assessed Mr Santos in his home over a video link. The quality of the connection was excellent, and I felt able to do a comprehensive assessment.
He requested that his wife Kerri be allowed to stay as a support person. She sat silently throughout the interview, except when I specifically asked her to describe his seizures because Mr Santos had no recollection of them.
He presented as an overweight man, casually attired and slightly dishevelled.
He was friendly and cooperative throughout the interview and able to give a full account.
He described being depressed and anxious. His affect was reactive and congruent with the content of the interview.
I could detect no disorder of thought form or perception.”
He made a diagnosis as follows:
“summary of injuries and diagnoses:
I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
oPersistent depressive disorder with a current major depressive episode and anxious distress
Mr Santos has been unwell for more than a decade and has had extensive pharmacological treatment but little psychological therapy. His condition has proved treatment-resistant.
He has five of six described symptoms for a persistent depressive disorder, perhaps missing poor concentration. Two of six symptoms are needed to make this diagnosis.
He has at least seven of nine symptoms consistent with a major depressive episode, missing psychomotor agitation or retardation and diminished ability to think or concentrate. Five of nine symptoms are required to make this diagnosis.
· consistency of presentation
There are no inconsistencies in his presentation.”
The MA explained his reasons for assessment under each of the PIRS categories as set out in the Table above.
The MA specifically addressed where his opinion differed from that of other experts whose opinions were in evidence as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
Treating psychiatrist Dr John Pickering, 8 September 2010, diagnosed ‘Major Depressive Disorder arising out of his previous Anxiety Disorder.’
Treating psychiatrist Dr BW Kann, 5 February 2016, diagnosed ‘persistent depressive disorder with intermittent major depressive episodes.’
IME psychiatrist Prof Phillip Morris, 26 May 2020, diagnosed an ‘unspecified anxiety disorder… This anxiety disorder has features of generalised anxiety, agoraphobia, panic disorder and social anxiety.’
Prof Morris determined 7% WPI (Classes 2, 4, 2, 1, 2 and 3).
IME psychiatrist Dr Trevor Lotz, 19 November 2020, diagnosed ‘Major Depression with anxiety [and] ADD.’ He noted that ‘there is no pre-existing contributor to his current anxiety and depression.’
Dr Lotz determined a WPI of 17% (Classes 2, 3, 3, 2, 3 and 3).
My diagnosis differs from Prof Morris and Dr Lotz. I have justified my choice in the section on the diagnosis.
Prof Morris asserts his Class assessments with little rationale offered.
Regarding travel, Dr Lotz wrote, ‘He states he is anxious in unfamiliar areas. He does not leave home alone, prefers to go with his mother, his wife or his wife’s mother. He has noted he is generally anxious leaving home.’
Mr Santos drives to this son’s school, twenty kilometres each way, twice daily, and at least half of that journey is on his own.
Regarding concentration, persistence and pace, he wrote, ‘Mr Santos has stated he is struggling with memory, concentration, he is disorganised, is unable to read a book.’ This is not consistent with the narrative offered today of learning the piano, reading technical computer manuals, Internet gaming and achieving high marks in university studies.
Regarding employability, he wrote, ‘He has not been able to hold any employment since his most recent employment now over four years ago.’
It is true that he is now unemployed. It is speculative whether he could work in a role for less than twenty hours in a different position, requiring less skill. I rated him as a Class 4 because of the time he has had since his last work, but I also considered that he has been able to work as recently as 2017 doing computer repairs. I took a more conservative approach in rating him as severely impaired in this category.”
The appellant complains that the MA has erred in respect of the assessments for Self-Care and Personal Hygiene, Social and Recreational Activities, Travel, Concentration, Persistence and Pace.
The panel, after careful review of the evidence, can discern no error in the ratings ascribed by the MA in respect of the categories of Self-Care and Personal Hygiene, Social and Recreational Activities, Travel, Concentration, Persistence and Pace complained about on appeal. There was no application of incorrect criteria. Each of the ratings were open to the MA in accordance with the correct application of the criteria in the Guides. The MA has given reasons for each of his ratings. He has given a clear and reasoned explanation, that is based on the application of his clinical expertise and accords with the criteria set out in the Guidelines. The MA has to rate according to the criteria in the Guides and provide the best fit in each category. He has done so without discernible error. The MA must rate impairment that results from injury. The ratings ascribed by the MA in the four categories under complaint accord with the criteria for each class. The MA cannot ascribe rating on the basis of self report alone, he must exercise his clinical judgment and have regard to all of the evidence before him, He has done this without discernible error. The Panel cannot interfere with these ratings absent error by the MA.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population 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. Class 4 Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self. Class 5 Totally impaired: Needs assistance with basic functions, such as feeding and toileting.
The MA rated a mild impairment at Class 2 with the following reasoning:
“Mr Santos sometimes lacks the motivation to maintain hygiene or to eat a healthy diet. During these times, he requires prompting from his wife to shower. However, much of the time, he participates in household chores, including cleaning, washing clothes and cooking. In addition, he is actively involved in the care of his son.”
The appellant is clearly on the evidence able to look after himself adequately because he mostly participates in household chores. The appellant has complained that the MA erred in taking account of his participation in the care of his son in this category. However the Appeal Panel can discern no error in taking account of the care of a minor child in activities such as cooking family meals and maintaining a hygienic home environment which the appellant plays a part in maintaining, The panel can discern no error in the rating of a mild impairment which is the best fit in this category. The rating of a mild impairment accords with the criteria in that class. The Panel can discern no error.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these. 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. Class 4 Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate. Class 5 Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The MA assessed a moderate impairment at Class 3 with the following reasoning:
“He has some social interaction with others, primarily through online gaming. He enjoys outings with his family but does not involve others. Other activities, such as playing music, are solitary activities. He rarely goes out in a social setting.”
The appellant whilst submitting that a Class 3 should not have been assessed, did not submit what class should have been assessed.
The appeal panel can discern no error in the assessment of a moderate impairment. It is not a case of the appellant being so impaired that he never leaves the residence. The MA noted that the appellant rarely left the home. This very clearly best fits the Class 3 criteria. With new technologies, and as we have seen clearly during COVID, social activities now commonly take place digitally and without the need to leave home, and Mr Santos engages in such activities regularly. The panel notes that this assessment of a moderate impairment Class 3 accords with the assessment made by the Independent Medical Expert (IME) qualified on behalf of the appellant Dr Lotz who also assessed Class 3. The Appeal Panel can discern no error in the assessment of Class 3.
In respect of Travel, Table 11.3 of the Guides provides as follows:
Table 11.3: Psychiatric impairment rating scale – travel
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision. Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour. Class 3 Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment. Class 4 Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person. Class 5 Totally impaired: may require two or more persons to supervise when travelling.
The MA assessed with the following reasoning:
“He travels in the local area without support, for example, driving his son 20 km to and from school twice a day. He also goes four-wheel driving, but only with his wife present. He has some anxiety while driving, suggesting minor impairment.”
The appellant submitted that the MA should have assessed a moderate impairment at Class 3. The MA specifically explained why his assessment differed from that of Dr Lotz, the IME qualified on behalf of the appellant who assessed Class 3 as follows:
“Regarding travel, Dr Lotz wrote, ‘He states he is anxious in unfamiliar areas. He does not leave home alone, prefers to go with his mother, his wife or his wife’s mother. He has noted he is generally anxious leaving home.’
Mr Santos drives to this son’s school, twenty kilometres each way, twice daily, and at least half of that journey is on his own.”The assessment by the MA accords clearly with Class 2. A Class 3 assessment would have required that the appellant never be able to leave home without a support person. This is very clearly not the case as the MA point outs – the appellant travels 20 km each way each school day driving his child to school. A mild impairment is the best fit and the appeal panel can discern no error.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. 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 of 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. Class 4 Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. Class 5 Totally impaired: needs constant supervision and assistance within institutional setting.
The MA rated no or minor deficit at Class 1 with the following explanation:
“Mr Santos describes subjective difficulties with his memory, saying that he is easily distracted. On the other hand, he plays interactive computer games for many hours a week, is teaching himself to play the piano and reads technical computer manuals to maintain his competence in this area. As recently as 2019, he has studied at university level, achieving distinctions and high distinctions. He stopped his study in the field of psychology because he felt it was not for him. His condition has not deteriorated since the time of this study.”
The appellant says the rating should have been a mild impairment at Class 2. However the MA has to make an assessment on the day of examination, he has the benefit of conducting a mental state examination on that day and is required to use his clinical expertise in making the assessment. The MA is specifically precluded by the Guides from relying on self report alone. He must have due regard to the other evidence before him. The MA specifically explains where his opinion differs from that of Dr Lotz, the IME qualified on behalf of the appellant who assessed a moderate impairment at Class 3 as follows:
“Regarding concentration, persistence and pace, he wrote, ‘Mr Santos has stated he is struggling with memory, concentration, he is disorganised, is unable to read a book.’ This is not consistent with the narrative offered today of learning the piano, reading technical computer manuals, Internet gaming and achieving high marks in university studies.’”
The Appeal Panel can discern no error in this assessment of Class 1 as the MA’s findings clearly accord with the criteria for that class.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 June 2021 should be confirmed.
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