Scottish Pacific Business Finance Pty Ltd v Hassdo (nee Damaschino)

DETERMINATION OF APPEAL PANEL
CITATION:	Scottish Pacific Business Finance Pty Ltd v Hassdo (nee Damaschino) [2024] NSWPICMP 155
APPELLANT:	Scottish Pacific Business Finance Pty Limited
RESPONDENT:	Geraldine Hassdo (nee Damaschino)
APPEAL PANEL
MEMBER:	R J Perrignon
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	19 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether Medical Assessor erred in assessing the psychiatric impairment rating scale category of travel; whether he erred in making a deduction of one-tenth for a pre-existing condition; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

The respondent employer appeals from the Medical Assessment Certificate of Medical Assessor Singh dated 3 August 2023. He examined Ms Hassdo on 19 July 2023 by video, and assessed a 24% whole person impairment (psychological) as a result of injury on
12 November 2020 (deemed date).
In doing so, he assessed a class 3 impairment in respect of the psychiatric impairment rating scale (PIRS) Travel.
From 24%, he deducted one tenth for pre-existing depression, anxiety and trichotillomania, to arrive at a final assessment of 22% whole person impairment.
The appellant employer submits that the assessment of Travel and the deduction of one-tenth each demonstrates error and the application of incorrect criteria, because:
(a) a class 3 impairment in respect of Travel was inconsistent with the evidence, which justified a class 2 impairment, and
(b) the evidence justified a one-third deduction for the pre-existing conditions, as assessed by the insurer’s independent medical expert, Dr Pothala, on
27 April 2023, rather than the deduction of one-tenth made by the Medical Assessor.
No error is alleged in respect of the finding that the worker suffered from pre-existing conditions of depression, anxiety and trichotillomania.
In respect of Travel, the appellant’s submissions at [50] and [52] appear to confuse a class 2 impairment with class 3 and vice versa, contending for a class 3 impairment. However, in the appellant’s favour, we interpret its submissions on Travel in the manner above.
At [7b] there is a bare allegation of error, without submissions in support, in respect of the assessment of three further PIRS: Social functioning, Social and recreational activities and Self-care and personal hygiene. The appellant’s submissions on PIRS assessment are entirely confined to Travel. We infer that the references to the three further scales at [7b] are in error. If not, in the absence of submissions to justify them, the allegations of error with respect to Social functioning, Social and Recreational Activities and Self-care and personal hygiene are dismissed.
The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.

Submissions

The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full.
The appellant employer’s submissions may be summarised briefly as follows:
(a) In respect of Travel, the Medical Assessor recorded a history at [10c] that the worker did not drive ‘other than local shops and goes to shop locally to pick up milk if it is urgent.’ This is consistent with a class 2 impairment.
(b) In respect of the deduction for pre-existing conditions:
i.the clinical notes of Zen Psychological, Allcare Medical Centre and Mindways Psychological Services were before the Medical Assessor. He made no reference to them. Among other things, they demonstrated that the worker was diagnosed by her doctor with major depression and anxiety in July 2016, complained to her general practitioner (GP) of bullying at work on 20 April 2018 and was prescribed an antidepressant, was pulling her hair out with anxiety in February 2019, that she suffered depression and anxiety for 23 years prior to 2015, anxiety attacks for five years up to 2019, and from childhood had pulled her hair and eyelashes out;
ii.on 29 March 2023, the independent medical expert qualified by the insurer, Dr Pothala, reported a history anxiety and trichotillomania prior to the injurious event at work on 12 November 2020. He was then provided with the clinical notes and above and provided a supplementary report dated
27 April 2023, in which he noted pre-existing major depressive disorder in addition, for which the worker had received and was receiving treatment. He made a deduction of 30%;
iii.the Medical Assessor recorded that the worker denied any past psychiatric history, and said that from age 6 to 7, she would pull her hair out, but thereafter was ‘fine’, reported no history of diagnosed anxiety and depression, and denied any treatment prior to the work injury. However, he noted the report of GP Dr Bokhari recording ten years of anxiety and depression, for which she was treated with antidepressant medication and sessions with a psychologist;
iv.the Medical Assessor found at [11c] that the deduction was difficult or costly to determine, and deducted one tenth, and
v.the evidence discloses that the pre-existing condition was significant, warranting a deduction of greater than one tenth. Thirty percent is appropriate.
The respondent worker submits in brief summary as follows:
(a) With respect to the assessment of Travel, the appellant ‘points to no error’.
(b) With respect to the s 323 deduction:
i.the Medical Assessor expressly took into account a pre-existing condition of trichotillomania and a pre-existing 10 year history of depression;
ii.in assessing the deduction of one tenth, the Medical Assessor was aware of that pre-existing history, and of the matters raised in Dr Pothala’s reports, including his review of the clinical notes;
iii.the Medical Assessor was not bound to accept the assessment of
Dr Pothala;
iv.the Medical Assessor applied the Guidelines at 11.12 [sic, 11.10] ‘which states that a pre-existing condition must be assessed under the PIRS rating system unless it is not practicable to do so then a 10% deduction must apply’. Dr Pothala did not, and
v.neither demonstrable error nor the application of incorrect criteria is demonstrated, ‘… given the uncertainty he found around the assessment of the s323 deduction’.

Travel

The criteria for rating class 2 and 3 impairment in Travel are as follows:

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.

In his PIRS form, the Medical Assessor gave the following reasons for assessing a class 3 impairment:
“Ms Hassdo told me that her husband will take her for appointments, does not go out on her own and is not driving other than local shops and goes to shop locally to pick up milk if it’s urgent. She avoids driving and gets road rage, cannot travel away from own residence without a support person as gets very anxious.
She can’t be left alone at home as well and needs to call someone to be with her. She gets agitated when her husband drives her as well, and something will tick her off.”
That reflected the history and reasons recorded by him at [10c.2].
The task of the Medical Assessor was to assess the behavioural consequences of injury in respect of Travel, by assessing into which class of impairment those consequences best fit, having regard to the descriptors and examples given in the PIRS for each class in Table 11.1 of the Guidelines.
The Medical Assessor took the view that those behavioural consequences best fit the descriptors and examples for a class 3 (moderate) impairment: ‘cannot travel away from own residence without support person’, etc.
However, the Medical Assessor took a history that the worker was able to drive to her local shops to pick up milk. Because of the way in which he expressed his reasons in the PIRS table, we are unable to ascertain whether she was accompanied by a support person on those occasions or not. If she was, the evidence would have supported a class 2 impairment as alleged by the appellant, and not a class 3 impairment as assessed. In the circumstances, the reasons are insufficient to enable us to discern whether the assessment of a class 3 impairment is affected by error. That amounts to insufficient reasons and demonstrable error, requiring that the Medical Assessment Certificate be set aside.

Deduction for pre-existing conditions

At [7] of his reasons, the Medical Assessor diagnosed major depressive disorder and trichotillomania as a result of injury.
Under the heading, ‘consistency of presentation’, he observed:
“Ms Hassdo denied any past psychiatric history prior to her work injury. Ms Hassdo told me that she used to pull out her hair as a little girl in school, at the age of 6-7 years; she doesn’t know why she did it, and even her parents don’t know, her hair grew back and she was fine. She reported no history of diagnosed anxiety and depression and had never had any treatment before the work injury.
As per the documents, however, on 5^thJuly 2016, her GP, Dr Bokhari documented that Ms Hassdo informed her 10 years history of anxiety and depression, a history of suicidal thoughts in the past and being on Lexapro (escitalopram) and that she has utilised two (2) sessions with a psychologist under mental health care plan. She was commenced on escitalopram 10 mg daily. Throughout 2016, medical notes indicated anxiety and depression and active treatment was offered, including medication and mental health care plan.”
In other words, he found that the worker’s denials with respect to pre-existing pathology and treatment were contrary to the facts reflected in the medical records.
He found at [11a] that there were pre-existing conditions of depression anxiety and trichotillomania.
He did not expressly refer to the clinical notes of Zen Psychological, Allcare Medical Centre and Mindways Psychological Services, but they were before him and were considered in
Dr Pothala’s supplementary report, which was also before him. There can be no doubt that the Medical Assessor considered that report, because he commented on the differences between his assessment and that of Dr Pothala in the report. We are comfortably satisfied that the Medical Assessor was aware of the contents of the clinical notes, and took them into account. He was not obliged to refer to them specifically.
He explained his calculation of the one-tenth deduction at [11b.4], page 6:
“I have deducted 1/10 from her WPI score for pre – existing impairment instead of 30% as in the report of Dr Vasantha Pothala’s. I couldn’t calculate the exact impairments in her functioning due to the pre-existing condition so have deducted 1/10 from her WPI.”
And at [11b.3] page 7:
“I have deducted 1/10 from her WPI score for pre–existing impairment. Dr Saboor did not identify any pre-existing illness or make any deductions. It appears Dr Saboor relied on the history provided by Ms Hassdo. There was clear evidence of pre-existing condition, and as such, I have made the appropriate deduction.”
He concluded at [11c]:
“The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one-tenth.”
Section 323(2) permits a deduction of one tenth where the deduction is difficult or costly to determine and such a deduction is not at odds with the available evidence. The central submission of the appellant is, in effect, that one-tenth was at odds with the evidence because the pre-existing condition was, or conditions were, so significant.
In our view, it was reasonably open to the assessor to find that the amount of the deduction was difficult to determine, as he did.
It was also reasonably open to him to find, as he did by necessary implication, that one-tenth was not at odds with the evidence, because prior to experiencing stressors at work, the respondent was nevertheless able to engage in her pre-injury duties. In addition, trichotillomania, though distressing, is not something that would necessarily cause significant impairment, particularly in circumstances where it did not impair the ability to work. We accept that that has changed post-injury.
We can identify neither demonstrable error nor the application of incorrect criteria in making a deduction of one-tenth.
Having identified error in the assessment of the scale, Travel, the Panel referred the worker for assessment to one of its members, Medical Assessor Glozier. His report follows:
“1. The worker’s medical history, where it differs from previous records
Ms Hassdo reported that she saw a psychiatrist a few months ago, Dr Kulic in Liverpool. She trialled a medication ‘beginning with C,’ she cannot remember, but it had no effect and so she ceased this. She said that her GP has transferred her back to her long-term medication of Escitalopram as the Sertraline was having no additional benefit. She continues to see her psychologist, Zena, on a six-monthly basis. She describes primarily supportive therapy now but said that they did try a more cognitive therapy in the past. She gets encouraged to do some meditation and says that she might watch YouTube meditation videos at night to try and help her sleep but really spends much of her time at night playing on her phone in a more distracted fashion. She is now trying to find a new psychiatrist who specialises in trichotillomania as she finds this debilitating, affecting her ability to focus and move forward. She sees an acupuncturist in Bella Vista and will very occasionally have a massage. She says that her husband takes her to all of these appointments, such that they will go at the weekend to the acupuncturist or when her son is in daycare. She currently takes Escitalopram 20mg.
She reported no physical health condition, accidents, injuries nor any treatment for this. She takes vitamins. She does not drink alcohol. She continues to smoke 10 cigarettes a day and has recently taken up vaping in an unsuccessful attempt to reduce her smoking. She uses no illicit drugs and has not been prescribed any medicinal cannabinoids.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Hassdo reports that nothing has really changed. She continues to feel miserable much of the time with only brief alleviation when she spends some time with her husband and son, maybe watching a movie. She is able to enjoy some family interactions but said that she can be easily irritated and is known for being grumpy and less tolerant. She goes to bed around 10pm or 11pm but then plays on her phone for 3-4 hours. However she then said she wakes around 1am or 2am, stressed, and very occasionally highly-aroused and panicky. She then said she remains awake for a couple of hours and only gets another 1-2 hours sleep but later said that she sleeps through until around 10am. As such the total sleep duration is difficult to pin down but there appears to be significant middle insomnia, and a delayed phase. When she wakes in the night she will again play on her phone, driving that broken sleep. She feels fatigued, anergic, demotivated much of the day. She feels that she needs to rest and does little.
She lives with her husband who has been working from home for some years now to support her. He is a subcontractor for RMS. She reports he will get up with their nearly one-year-old son TJ, do all of his care in the morning and look after him whilst he works. She will spend a bit of time with him in the day, playing, but does minimal childcare, e.g. occasionally opening sachets of food and does little in the way of looking after him. She says that her mother, mother-in-law and sister frequently come around, providing meals and other care. She said that her husband does most of the care for TJ in the evenings and weekends as well, e.g. taking him to his football commitments. She feels bad that she does not take TJ out to play for walks etc, which she attributes to her amotivation and anergia. They will occasionally “hang out” as a family and watch a bit of TV or very occasionally go out for a meal. She finds being out anxiety provoking and she often has to leave early because she is so anxious.
Much of her avoidance of going out is driven by her trichotillomania as she feels highly embarrassed about the way she looks, and that people will be looking at her and judging her for her appearance. She described classic trichotillomania symptoms with obsessive rumination about her hair, and compulsive urges to pull it out which this provides brief satisfying relief. She says she is distracted by thoughts about her hair and focuses much of the time on this. She will focus on specific hairs, and once out rub it against her lips. At times she plucks hairs from her legs. She finds this difficult to control and spends much of the day focusing on this.
She does not report any other OCD phenomena, e.g. checking, counting, washing, doubting. She continues to have a generalised anxiety, worrying about most aspects of her and her family’s life and future, and suggested that both she and others note her tendency to over-worry out of proportion to the situation. She is aroused and anxious when out and only partially calmed by being with her husband. She can be quite panicky if they are in shops together, dislikes crowds and may leave early.
She reported very limited focus, saying that she can only read one line before losing concentration and that she cannot watch any TV but then later suggested that she might watch a movie with her husband and son. She spends hours playing on her phone, watching YouTubes etc.
She continues to eat considerable amounts of junk food. She will generally eat breakfast, but skip lunch and they often have takeaways at night. Her husband may cook or they eat food prepared by their family. Otherwise she will only snack on chips. She does no other physical wellbeing activities, no exercise etc.
She said that in general her husband takes her almost everywhere, e.g. to the shops, supermarkets or her appointments. She does however drive very short distances, circa 5 minutes or so, e.g. to her mother-in-law’s, on her own and occasionally go down to the local shops if she has to. She dislikes doing this and does so infrequently. Otherwise for any other trips her husband will accompany her and she leaves the house infrequently. She has not used public transport since she has left work, nor flown for many years.
3. Findings on clinical examination
Ms Hassdo was only visible from the neck upwards. She was sitting on a sofa. She was engaged and showed a normal processing speed and seemed to focus well for the 45 minutes or so of the assessment. There were some inconsistencies as above, probably reflecting a negative reporting bias. She reports both cardinal features of Major Depressive Disorder and significant biological and cognitive features including feeling hopeless and worthless. She has occasional panic attacks and generalised anxiety out of proportion to the situation, associated with physiological arousal. She has debilitating trichotillomania that limits her in many ways due to her shame and embarrassment and also interferes with her thinking with frequent rumination/hair-pulling, leading only to limited relief. There were no other OCD or psychotic phenomena.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Ms Hassdo has clinically significant features that would meet the criteria for a range of diagnoses including Major Depressive Disorder, Generalised Anxiety Disorder, Panic Disorder, and Trichotillomania. These symptoms appear remarkably similar to those recorded by the other IMEs and the MA. From her report today the depressive phenomena, amotivation, anergia and the psychosocial sequelae of her trichotillomania appear to be the most disabling.
I did re-review the notes regarding the long-term impact of her pre-existing Generalised Anxiety Disorder and trichotillomania. Although she was presenting to her GP over 2016 with a long history of anxiety and trichotillomania, and received counselling and SSRIs treatment– particularly around the time of a termination of pregnancy – there was little associated impairment recorded. The minimal contemporaneous evidence indicates that she was ‘well-groomed’, showing no impairment of self-care, was able to travel e.g. to Bali and work, and focus and function well enough to work fulltime. There was a note of some social function difficulties although this was attributed to her husband’s behaviour, and there was mention of some mild social impact of her trichotillomania. None of this would be at odds with the 1/10^th deduction made by the MA.
The history above confirms the MA’s assessment of Social Functioning and Self-Care and Personal Hygiene. I note the Panel have already assessed there were no errors in the MA’s assessment of those classes.
With respect to travel, she can leave the house occasionally on her own, drive short distances to her mother-in-law’s or go to local shops for small items but otherwise requires accompaniment by her husband in large part due to the social impact, stigma and embarrassment of her pre-existing trichotillomania, aggravated by the injury, as well as the sequelae of her primary injury. This meets the criteria for a mild impairment.”

Assessment of PIRS Travel

Having regard to this specialist expertise and clinical experience, the Panel accepts the findings and observations on examination made by Medical Assessor Glozier. In particular, it accepts his finding that ‘she can leave the house occasionally on her own, drive short distances to her mother-in-law’s or go to local shops for small items but otherwise requires accompaniment by her husband …’.
This satisfies the criteria for a class 2 (mild) impairment in respect of Travel, because the respondent worker ‘can travel without support person, but only in a familiar area such as local shops, visiting [her mother-in-law]’. She does not satisfy the criteria for a class 3 impairment, because the evidence does not support an inability to ‘travel away from own residence without support person’.
For those reasons, the Panel assesses a class 2 impairment in respect of Travel.

Conclusion

For the reasons given, the Medical Assessment Certificate of Medical Assessor Singh is revoked and replaced with the attached Medical Assessment Certificate.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3266/23
Applicant:	Geraldine Hassdo (nee Damaschino)
Respondent:	Scottish Pacific Business Finance Pty Limited

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 Singh 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 pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

1. Psychological Injury

12/11/2020

Chapter 11

Guidelines

11.1-11.3

11.4-11.6

Guidelines

11.11,11.12

Table

:11.1,11.2,11.3,11.

5,11.5,11.6

22%

1/10

20%

Total % WPI (the Combined Table values of all sub-totals)

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Geraldine Hassdo	Claim reference number (if known)	W3266/23
DOB	Age at time of injury	28 years
Date of Injury	12 November 2020	Occupation at time of injury	Client relationship officer
Date of Assessment	19 July 2023	Marital Status before injury	Single

Psychiatric diagnoses	1.Major depressive disorder		2. Trichotillomania
Psychiatric treatment	GP and Psychiatrist consultations, antidepressant medications, and psychology sessions.
Is impairment permanent?	Yes
PIRS Category			Class		Reason for Decision
Self Care and personal hygiene			3		Ms Hassdo told me that she recently went 2 days without showering and 2 days without brushing, needs prompting to shower daily and change. Does not prepare own meals, her husband cooks or else they will order food, she used to cook every day, and may miss her meals. She is regularly getting help from her family at home. She was living with her mum and got married on 2^nd May 2021 and is living her husband now.
Social and recreational activities			3		Ms Hassdo told me that she may socialize over the phone, will go out with her husband or sister in law, half of the time she won’t go to the weddings, may leave early and feels very anxious and gets sweaty at social events. She will not go out without a support person, she is not actively involved, remains quiet and withdrawn in social settings.
Travel			2		Ms Hassdo can leave the house occasionally on her own, drive short distances to her mother-in-law’s or go to local shops for small items but otherwise requires accompaniment by her husband in large part due to the social impact, stigma and embarrassment of her pre-existing trichotillomania, aggravated by the injury, as well as the sequelae of her primary injury. She has not used public transport since she has left work, nor flown for many years.
Social functioning			2		Ms Hassdo told me that she doesn’t care about her friends, doesn’t answer her friend’s calls, and has lost few friends. Her husband is very patient and supportive, though her existing relationship is strained but there were no periods of separation or domestic violence, and she is able to look after her son with support from family.
Concentration, persistence and pace			3		Ms Hassdo told me that she couldn’t do a TAFE course in 2021, can read text messages but unable to read emails and asks her husband to help her , can’t read books which she used to do, can’t read more than a paragraph, and doesn’t have concentration and focus to read.
Employability			5		Ms Hassdo told me that she is not working and can’t work at all. There was a trial to send her back in 2020, was very anxious to go back, couldn’t get out of bed, and it failed.
Score										Median Class
2	2	3		3		3	5		=3
Aggregate Score Impairment								Total			%
+2 +2	+3	+3		+3		+5	18			22%

Pre-existing impairment- 1/10 = 2.2%

Final WPI = 20%

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.

[2024] NSWPICMP 155

19 March 2024