Scott v Ivy Contractors Pty Ltd
[2022] NSWPICMP 525
•20 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Scott v Ivy Contractors Pty Ltd [2022] NSWPICMP 525 |
| APPELLANT: | Gary Scott |
| RESPONDENT: | Ivy Contractors Pty Ltd |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 20 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in three respects; firstly, by failing to accept the nature of the injury, that is a primary psychological condition; secondly, erred when attempting to make a deduction for the effects of the pain; and thirdly by failing to provide adequate reasons; The Panel agreed in part with the appellant’s submissions and a re-examination was conducted; Held – the Panel found no errors by the MA in all Psychiatric Impairment Rating Scale (PIRS) categories except for employability; appellant found to be unfit for work and a Class 5 PIRS rating was ascribed; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 June 2022 Gary Scott (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Young, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 May 2022.
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.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the MA erred in the manner of his assessment of whole person impairment (WPI).
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.
Further medical examination
Professor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 7 December 2022 and reported to the Appeal Panel.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in three respects, firstly, by failing to accept the nature of the injury, that is a primary psychological condition, secondly, erred when attempting to make a deduction for the effects of the pain, and thirdly by failing to provide adequate reasons.
In reply, Ivy Contractors Pty Ltd (the respondent) submits that no errors were made.
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 appellant was referred to the MA for assessment of WPI in respect of a psychiatric condition resulting from an injury on 9 January 2019.
The MA obtained the following history:
“Mr Scott was injured when carrying a heavy piece of equipment down from the roof while on a ladder at a building worksite. He was approximately 3 storeys above the ground when the ladder came away from the roof because it was not being secured by his co-worker. The weight of the machine caused his body to arch backwards, his torso twisted, his right shoulder wrapped around the machine and his foot slipped from the ladder. He experienced pain and feared that he would fall and/or be crushed by the equipment. He called to alert his co-worker who had been distracted by a telephone call. His co-workers were able to push the ladder back and Mr Scott was then able to regain his balance and footing and to descend the ladder.
Immediately following the incident, he experienced pain throughout his body…
He was certified as unfit to work because of his physical injuries and reported that he continued to experience worsening pain over the following months…
He continued to ruminate regarding perceived negligence of his co-worker and felt frustrated and helpless to manage continuing severe pain such that in August 2019 he took a deliberate overdose of medication resulting in a brief admission to Nepean Hospital.
In September 2019 he was certified as fit to return to normal duties…Mr Scott reports however that at this time he was experiencing anxiety about working at heights and using ladders and tried to avoid this and said ‘I wasn’t given any choice.’ He said that he was ‘too scared to sit near the edge of roofs’ and ‘couldn’t deal with what my head was doing.’ He said that he was also at this time experiencing nightmares, insomnia, and intrusive thoughts about the incident. When asked about this inconsistency he said that his GP ‘didn’t want to listen’ and dismissed these issues.
He continued to work through to June 2020 with continuing pain…
In October 2020 he was certified as requiring restricted duties due to pain and was transferred into the role of product manager. He suffered an exacerbation of back pain in November and underwent further interventions including nerve block procedures.
In March 2021 he changed GP, was certified unfit, diagnosed with PTSD then referred to a psychiatrist and psychologist…
In June 2021 following an incident in which he injured his hand after punching a wall he was admitted to St John of God Hospital. He was dissatisfied with his care because he said he was ‘treated like a drug addict’ and discharged himself against medical advice. He was readmitted shortly after with a change of treating psychiatrist and was treated in the PTSD program. He felt that this was helpful in understanding his condition but did not describe benefits in relation to reduction in symptoms or improved functioning and following discharge continued in the outpatient program. During the admission he was also diagnosed with ADHD and commenced treatment with dexamphetamine. Subsequently he was weaned off opiates and trialled medicinal cannabis.
He reported that his condition has been generally stable over the past year…”
After documenting Mr Scott’s treatment regime, the MA described present symptoms as follows:
“He reports that since this time he continues to suffer chronic pain affecting his neck, shoulders, upper back, lower back, hips and knees. He reports that the pain is constant at moderate intensity and simple activities such as brushing his teeth or minor movements cause ‘intense flashes of pain’ and muscle spasms. He said that ‘pain slows me down’ and as a result of the pain he is restricted in participating in domestic chores as well as social and other activities with his family, stating ‘I don’t do anything’.
Mr Scott reports continuing ‘horrible’ insomnia and frequent nightmares 3-4 times per week. He was unable to describe content other than they are ‘weird’ and sometimes include falling.
He said that he has Intrusive thoughts, ‘constantly thinking about the incident’, these make him feel ‘angry and scared’ resulting in feeling ‘tense’ and ‘sweating’. He said that he has acute anxiety if he sees a ladder, someone on a ladder or even when seeing children on slippery dip. He said that he feels afraid of heights and experiences feelings of anxiety even when depicted on television and that ‘I hate seeing people using phones’, wants to smash them.
Doesn’t enjoy activities, described feeling apathetic with loss of interest. He has not been able to box nor play competitive golf and soccer because of pain and has lost interest in these activities.”
The MA added: “The psychological injury is associated with concurrent physical injuries to his cervical and lumbar spine, right shoulder, knee and hips.”
As regards the impact on Mr Scott’s social activities and activities of daily living (ADL’s) the MA said:
“Mr Scott reports that as a result of his injury he is less motivated to maintain his personal appearance, nutrition and fitness. He rarely gets haircuts and no longer showers daily. He does not generally contribute to domestic duties at home and eats toast, cereal or pre-prepared meals when required to cook for himself.
He said that he has lost interest and does not participate in social activities or sports that he previously enjoyed saying that he mostly stays at home, ‘not doing much at all’. He has lost contact with friends and there has been increasing conflict with his wife leading to a period of separation.
He said that he does not feel safe driving because of poor concentration and anxiety and consequently avoids driving except when essential because he feels unsafe.”
In summarising the injuries and other matters the MA said:
“Overall Mr Scott’s presentation and history indicates an acute physical injury followed by the onset chronic pain and leading to secondary mental health effects including depression and elaboration of posttraumatic symptoms with delayed onset secondary PTSD.
Given the significant inconsistencies noted indicates there is a degree of over-reporting and misattribution of symptoms and impairments likely to be present.”
The MA added:
“Mr Scott said that he experienced posttraumatic symptoms immediately after the work accident. This is inconsistent with his initial written statement and the contemporaneous clinical notes, which Mr Scott explains was because his GP did not listen to his concerns. The clinical notes from his first GP appear to be thorough and detailed, mentioning anxiety as present but related to functional effects of his physical injury.
In addition, Mr Scott continued to work on roofs for more than a year following the incident. He reports that he was ‘forced’ to do this but this is not reflected in the work certificates provided by his GP and there are notes specifically referring to Mr Scott being happy to return to normal duties. I find it implausible that if Mr Scott presented significant posttraumatic symptoms his GP would not have noted these.
From review of the clinical notes and other documentation including Mr Scott’s written statement it is apparent that psychological symptoms became increasingly prominent more than a year after the injury in the context of chronic pain and dispute over liability.
The notes from St John of God Hospital are very general and do not contain significant detail of posttraumatic symptoms. Similarly, the GP clinical records following the diagnosis do not reflect content related to the diagnosis of PTSD.
Dr Khan’s IME report (16/09/21) does not specify timing of onset of symptoms, does not specify posttraumatic symptoms and does not sufficiently explore the relationship between the pain and psychiatric symptoms.
Dr Paisley’s IME report (15/12/21) describes a history more consistent with that in the clinical records and as Mr Scott provided to me.
‘Gary reported that his mental health gradually declined after the accident. He felt depressed and anxious. He became more irritable with anger outbursts. He kept ruminating about the accident and questioning why it had ever happened. He experienced financial hardship. He escalated his consumption of alcohol. He gained weight and lost muscle. His self-esteem suffered. He had insomnia and fatigue. The quality of his diet deteriorated but his appetite was reasonable. He was demoralised by his chronic pain and disability. His concentration and memory were impaired. He felt more absent-minded and would make frequent mistakes such as losing his keys.’
‘Mr Scott's employment was terminated on 6 May 2021 because he was unable to return to his pre-injury role. He stopped his recreational pursuits of boxing, kayaking, and running. Mr Scott said that he has lost some of his friends because of social withdrawal. He said, "I do not see anyone anymore." He helps run the house by vacuuming and cleaning the kitchen. He cannot mow lawn because of his pain. He tries to keep busy and distracted to avoid thinking about the accident. He drinks excessive amounts of alcohol to numb his emotions. His wife works and he stays at home and looks after the children. There has been significant marital discord and they separated for a period. He stayed in temporary men's accommodation prior to his recent admission to St John of God Hospital.’
Dr Endrey-Walder’s IME report (28/06/21) also does not indicate Mr Scott reported PTSD symptoms immediately but these arose concurrent with depressive symptom and chronic pain. Similarly he described relatively preserved functioning until the termination of his employment.
Dr Lim’s initial assessment (10/03/21) lists PTSD symptoms and PCL-5 checklist has score of 62. Note that the PCL is a screening rather than diagnostic instrument and is not validated in medicolegal applications.
Dr Malik’s letter (21/07/21) states:
‘He then continued to work but weeks later developed pain and was diagnosed with herniated disc in cervical and lumbar spine. He gradually developed symptoms of PTSD which include avoidance, flash backs, nightmares and broken sleep.’
The Nepean Hospital Discharge Summary and included clinical notes (23/08/19) relates the overdose taken to the context of relationship conflict, chronic pain sense of injustice related to former employer, alcohol and cocaine use but does not refer to presence of PTSD symptoms.
Psychology report by treating psychologist Carl Neilson (14/03/22) states:
‘He continued working on light duties but was in extreme pain. He was threatened by management that he had to go to work even though he was unable to drive or he "would not be paid". Mr Scott attempted to resign but was told that he was unable to resign as he was "under contract". Mr Scott was placed as an estimator but he had difficulties being on ladders due to Psychological distress and pain. He was then placed in the office but was unable to manage computers. Mr Scott was terminated from his place of employment in March 2021 due to being unable to cope with his workplace demands and has been unable to return to work since then.’
Mr Scott denied that he had a previous history of anxiety or problems related to drug use, stating only that he had occasionally used cocaine. The clinical records indicate that in 2013 he spoke to his GP regarding a $500/day cocaine habit and discussed referral to a psychologist for anxiety symptoms.”
The MA assessed 7% WPI.
In commenting upon the other medical opinions, the MA said:
“Mr Scott’s description of his functioning is consistent with that reported to Dr Khan. The functional descriptions provided to Dr Paisley indicated better functioning in relation to self-care and personal hygiene, however in my opinion the description of functioning in social and recreational activities and concentration persistence and pace justify a Class 3 impairment rating. The higher ratings in these categories would infer Class 5 impairment rating for employability giving a median score of 3 and an aggregate score of 17 leading to a WPI of 19%.
Assuming the accuracy of Mr Scott’s self-report there has been further deterioration in his symptoms and current functioning is now more consistent with that described to Dr Khan.
Dr Khan attributes a 10% deduction for prior condition. Dr Paisley notes the contribution of chronic pain but it is not clear as to how a deduction has been applied in determining the WPI calculation.”
The appellant makes the following submissions:
(a) In the ARD, the appellant alleges only "primary" psychological injuries. This is supported by Dr Khan who diagnosed post-traumatic stress disorder and major depression (Application to Resolve a Dispute (ARD) pp 49-50). For the respondent, Dr Paisley also diagnosed only a primary psychological injury of post-traumatic stress disorder and major depression. Neither Dr Khan nor Dr Paisley diagnosed a separate secondary pain related psychological condition. No issue was taken by the respondent to the effect that the appellant's impairment was caused by a secondary psychological condition or that there was such an injury.
(b) The finding in the MAC is at odds with the referral.
(c) The MAC is thereby infected by the erroneous finding.
(d) The MA made further errors when attempting to make a deduction for the effects of the pain. He started the exercise by assigning classes across the PIRS scales for the psychological injury, which would have been the proper and orthodox step if it is put to one side that he was evaluating a secondary psychological condition as he had found it.
(e) The MA next made a deduction for the chronic pain. In so doing, the assessment was made on the basis of incorrect criteria, This is said for the following reasons:
(i)physical impairment was being deducted from psychological impairment in contravention of s 65A (4)(a) of the Workers Compensation Act 1987 (1987 Act);
(ii)primary injury impairment (the pain, as found at MAC p 6) was being deducted from that same injury's consequential condition (the psychological condition, as found);
(iii)the MA failed to follow clause I1.5 of the Guidelines or the Body Organ Systems Chapters of AMA 5.
(f) The MA erred by failing to provide adequate reasons. Namely, even if we assume he was using the correct criteria for what he found to be a primary psychological injury, which we say was not the case, he does not adequately explain that if he formed the view that the "description" justified Class 3 PIRS ratings across three specific scales, and a Class 5 rating for employability, as is stated at page 7 of the MAC and in the table at page 10 of the MAC, how it was that it was appropriate to reduce those PIRS impairments given that his psychological symptoms, as recorded on pages 3 and 4 of the MAC, were independent of the symptoms of pain recorded in the same passage.
The Panel agreed with the thrust of the appellant’s submissions and accordingly arranged for the appellant to be re-examined.
Professor Glozier reported to the Panel following his examination as follows:
“1. The worker’s medical history, where it differs from previous records.
Mr Scott reported a different history regarding the physical symptoms and impact of these to that elicited by the Medical Assessor. Whether this reflects passage of time, significant changes to his medication having an impact on pain and symptoms reporting etc. I cannot tell. He confirmed that he had some cortisone injections in 2021 and continues to have intermittent physiotherapy. He says that the pain is generally ‘alright’ now and tolerable. It flares up if he is ‘silly,’ e.g. when he was hanging up the Christmas lights the other day and is helped by his medication and the use of a band. He says the aches and pains are worse when he is anxious or stressed rather than conversely the pain causing significant periods of anxiety or distress. He uses over-the-counter ibuprofen and paracetamol and occasional tramadol. He said he rarely gets spasms now although also noted that he takes 20mg of Baclofen between 1-3 times a day to relieve these.
He has continued to consult Dr Malik on a fortnightly basis and his medications have been substantially increased (in general by some 50%) since the Certificate. He currently takes Sodium Valproate 400mg nocte, Clonidine 100mg bd and 300mg nocte, Quetiapine 25mg (up to four times a day) and 200mg nocte, Prazosin 14mg nocte, Amitriptyline 75mg nocte and 10mg of Dexamphetamine three times a day. He occasionally uses Valium. He reported that the increase in Prazosin has reduced his dreams and some of his re-experiencing phenomena, and the increased Catapres has helped with calming and reducing his anxiety.
In contrast to the developmental history elicited by the AMS, Mr Scott reported that he left school at 14 and has some issues with literacy. For instance he noted that although he can read individual words, he has poor understanding even of newspapers and limited writing skills although would hand-write his own quotes. However his wife would help him with any of the mathematics and all uses of computers as he was not IT-literate. He reported there had been concentration and focusing difficulties as a child, limiting his schooling and that this has continued to affect his cognitive function ever since although he found ways of overcoming this with the help of his wife. He also sees a psychologist on the alternative week that he sees Dr Malik and describes focusing on triggers and being able to either separate himself from, or avoid, these better.
2. Additional history since the original Medical Assessment Certificate was performed.
Prior to the incident Mr Scott had been ‘on wages’ since August 2018, having previously been working as a subcontractor for the employer for some time. He worked six, and occasionally seven, days a week. At the time they had two children: Addison, now 14 and Harry, now aged five. His partner, Amanda, who he has been with since 18, worked at Woolworths. He said he used to shop Sunday, contribute to some of the cleaning around the house, and cook on the barbeque. He had no problems driving, no reason to use public transport and they had flown to Hamilton Island just the week before the accident. He was highly focused on amateur boxing and had fought for the NSW boxing title at the 81kg level only a few years prior. As a result he rarely drank alcohol. He had smoked as a teenager and used cannabis then. He did acknowledge his prior use of cocaine but seemed aggrieved at the way that this had been focused on by IMEs and the MA.
His current symptoms include a chronic dysphoric mood with little enjoyment of anything. He can be miserable at times although not pervasively. He has a negative outlook and readily described avoiding people if possible, e.g. not liking to speak to old friends because he has nothing to speak about since he has stopped his physical activities and other roles. He can still become ‘aggro’, particularly if he has been triggered. He describes incident related triggers including the phone (as he blames the co-worker for the accident because his co-worker who was meant to be holding the ladder, let go and walked away on the phone). He also finds seeing others who are meant to be doing their job on the phone causes him anger and irritability. He is noise-intolerant and describes some triggers as leading to a borderline panic attack where he freezes, he has urinary urge, sweatiness and a need to escape. He has to push himself to interact with people socially which can cause tension within the family although has completed this successfully in some domains over the past months. He currently goes to bed a bit later with the medication changes and new child, around 9-9:30pm and their sleeping arrangements have differed over time, depending upon the children and his arousal at night. He says he falls asleep quickly with his medications but wakes up only a couple of hours later with nightmares or arousal and will then have broken sleep, waking a couple of times more during the night before finally getting up about 4am-5am. He said that he had a Garmin which noted anywhere between 40 and 120 minutes of deep sleep, two full hours of light sleep and 45 mins to 2.5 hours of REM a night, indicating a probable low/normal sleep duration. He has settled into an avoidant somewhat entrenched disabled role and does not see himself as being able to move forward. He also is quite ‘paranoid’ about technology, e.g. the use of this computer or even such things as printing certificates. As a result he has installed anti-viral software to prevent any access of his data through technical means.
Currently he and his partner have had a fourth child (the second since the incident). Billy is now 21 months and Airlie only 17 days old. As a result Amanda is on maternity leave. Prior to that, when he got up in the morning he would help get the children ready and take them to school, which he still does even while she is on maternity leave. He is up before many of the rest of the house where he will pat the dog, open the windows to air the house and finds himself sitting down, staring at the stars. Amanda has taken on more home duties now she is at home. Once he has brought the kids from school or pre-school he will do some chores. When Vanessa was at work he cared for Billy all day as he was at home whilst the other two were in day care or school. He describes a reasonable diet, trying to avoid junk foods but is not particularly healthy. He has reduced barbequing as he says he has little motivation. He tries to get out most days and has ‘stretches’ of doing daily dog walks, going down to the dog park. He had to relinquish going to the gym and boxing because of his physical injuries and dislikes going there now because people ask him about his current state which has changed. As a result of his lack of gym attendance he has lost significant weight now, only weighing 66kg with a reduction in his muscle mass, attributable to his physical injury. He will occasionally watch the Eels games if it is on at the right time but no longer likes watching boxing or other things that remind him of his previous physical prowess.
He is involved in his kids’ sport, e.g. taking the boys to swimming lessons. He gets in the pool and swims with Billie. Over the winter he was the coach for Harry’s rugby league team. He says he was somewhat landed with this but then grew into the role over the season. He got to know the parents of the team, took on the training and one of the other dads became the manager. Now it is summer he has taken on a similar role as coach of the kid’s OzTag team. He describes some tension at times if he is feeling avoidant and aroused but generally gets to the games and enjoys being with the kids. He has met a number of new people and parents through this although some of the parents were already friends. He can travel locally although says that he can lose concentration whilst driving. He also gets irritated if people are on their phones whilst driving. He continues to have a reasonable relationship with Amanda and has obviously been intimate, given they have had two further children, the last being only a fortnight ago. They frequently do not share a room, at times due to his arousal and now Amanda is sleeping with their young daughter. He sees his parents relatively frequently as they live in a caravan park about 40 minutes away. Two of his brothers he has not spoken to for a long time because he is ‘bored of hearing about how hard their lives are’, whilst the other one seems supportive. He has lost a number of other friends although made a few through the children’s sport. He has never been a reader or engaged with any significant cognitive activities with long-term attentional problems and limited interest in such tasks, reflecting his education. He says he has not looked at any retraining, volunteering or Men’s Sheds as he is happy in his backyard, avoiding things.
He continues to not drink any alcohol although has taken up smoking.
3. Findings on clinical examination.
Mr Scott was slim and bearded with tattoos. He was quite jittery and even without knowing his medications, behaved as though he had possibly been using amphetamines. However he showed no overt difficulties in focus, concentration and persisted with the over hour-long assessment. He describes episodes of being tearful, sadness, near-anhedonia, lack of motivation, withdrawal from some activities although when prompted is able to take part in social activities and can enjoy these, once he has overcome his avoidance. He describes intrusive recollections of how he felt treated at work associated with injury-related triggers such as phones that can make him hyper-aroused, near panicky with associated noise intolerance. He is somewhat paranoid about technical devices and how these may affect his privacy but this is not of a delusional intensity.
Summary:
The history elicited today describes similar current whole person impairment in Self-Care and Personal Hygiene, and Travel, as that described by the MA, and which were uncontested by the appellant. I would also agree with the MA that currently Mr Scott is unemployable on the open job market, describing no consistent activities of a remunerable nature, attributable to his low mood, avoidance, lack of motivation solely, even disregarding any of the pain symptoms which appear to have ameliorated somewhat since he saw the MA.
With regards to Social and Recreational Activities, many of those that he focused on previously, e.g. gardening and high-level competitive boxing, are limited by his physical injuries. As a result he also has further withdrawal because of this. Conversely he has taken on coaching roles with his children’s sport, engaging in these on a weekly basis and made some new acquaintances through this although at times can struggle and require prompting: a mild impairment on the basis of his psychiatric symptoms.
He remains supported by his wife, obviously is still intimate, having had further children whom he is significantly involved in caring for, particularly when his wife is at work. He remains in good contact with his parents and one brother, having lost contact with the other two for some years prior, and they are supportive. He has withdrawn from many of his previous friends although has made a few new acquaintances through coaching: a mild impairment.
He has had long-term difficulties with focusing and concentration, reflected in limited educational attainment, both formally and with respect to his ability to read, write, and use computers. He was able to focus and attend throughout the assessment (possibly reflecting the use of the amphetamines for this) and described little motivation to do any tasks. Although he can watch full football games, he has never been a reader or engaged in more cognitively demanding activities: a mild impairment.”
The MA assessed a Class 2 for Self-Care and personal hygiene and Travel adding:
“Diminished attention to personal appearance such as reduced frequency of haircuts, showers less frequently, reduced participation on domestic activities. Prepares simple meals…
Feels unsafe driving and avoids this when possible but manages within local area.”
The descriptor for a Class 2 in respect of Self-Care and personal hygiene reads: “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.”
For Travel it reads: “Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
These ratings are entirely consistent with all the evidence and with the findings of both the MA and Professor Glozier. As he said:
“The history elicited today describes similar current whole person impairment in Self-Care and Personal Hygiene, and Travel, as that described by the MA, and which were uncontested by the appellant.”
As regards Social and Recreational Activities, the MA assessed a Class 2 adding:
“No longer participates in activities including playing golf, soccer and amateur boxing. No longer coaches children’s teams or goes to gym. Lost interest in following sports. (3- 1 for pain contribution).”
The Panel agrees that the reference by the MA to “pain contribution” was erroneous. Any contribution due to pain or physical limitations arising from his physical injury have been excluded by the Panel in determining impairment ratings.
However as Professor Glozier noted:
“With regards to Social and Recreational Activities, many of those that he focused on previously, e.g. gardening and high-level competitive boxing, are limited by his physical injuries. As a result he also has further withdrawal because of this. Conversely he has taken on coaching roles with his children’s sport, engaging in these on a weekly basis and made some new acquaintances through this although at times can struggle and require prompting: a mild impairment on the basis of his psychiatric symptoms.”
Given the extent of Mr Scott’s physical injuries it was inevitable that some physical activities may be restricted. But it is clear from the history taken by Professor Glozier that Mr Scott has adapted to his physical restrictions and manages to participate in various activities on a less physically demanding basis.
The descriptor for a Class 2 reads: “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).”
This is consistent with the evidence and the history taken by both the MA and Professor Glozier.
As regards social functioning, the MA assessed a Class 2 adding:
“Marked reduction in contacts with friends. Avoids talking to people including family functions and does not actively participate. Has increased conflict in relationship including period of separation. (3 1 for pain contribution).”
Again, we agree that the reference to “pain contribution” is erroneous in the context of the MA’s task.
Having said that, the history taken by the MA and particularly Professor Glozier is consistent with a Class 2 rating, that is, a mild impairment.
We make the same comments as regards the category of concentration, persistence and pace (cpp).
Both the MA and Professor Glozier assessed a Class 2, a mild impairment, which in our view is consistent with all the evidence and the histories obtained. Of significance is the additional history obtained by Professor Glozier as regards Mr Scott’s education and his chronic neurodevelopmental attention deficit disorder.
Finally with respect to the category of employability, Professor Glozier said:
“I would also agree with the MA that currently Mr Scott is unemployable on the open job market, describing no consistent activities of a remunerable nature, attributable to his low mood, avoidance, lack of motivation solely, even disregarding any of the pain symptoms which appear to have ameliorated somewhat since he saw the MA.”
The MA assessed a Class 3 rating adding:
“The degree of symptoms and impairments reported would likely render Mr Scott unable to sustain any substantive employment. (5 2 for pain contribution).”
We repeat our earlier comments as regards the apparent deduction for “pain contribution.”
Clearly on the history obtained by Professor Glozier Mr Scott is indeed “unemployable” and on that basis, he should be given a Class 5 rating.
In summary, Professor Glozier agreed with the MA’s assessments in all categories except for employability.
Having found a Class 5, that takes Mr Scott’s overall WPI to 8%.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 May 2022 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
Matter Number: | W918/22 |
Applicant: | Gary Scott |
Respondent: | Ivy Contractors Pty Ltd |
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 Peter Young and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric | 09/01/2019 | Chapter 11 | Chapter 14 | 8% | 0 | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||