Secretary, Department of Communities & Justice v Wallace
[2021] NSWPICMP 183
•29 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Communities & Justice v Wallace [2021] NSWPICMP 183 |
| APPELLANT: | Secretary, Department of Communities & Justice |
| RESPONDENT: | Stephen Wallace |
| APPEAL PANEL: | Member Jane Peacock Professor Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 29 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; appellant sought to admit additional relevant evidence; the appellant submitted that the additional information is relevant because it discloses evidence that is inconsistent with the psychiatric impairment rating scale (PIRS) rating given by the Medical Assessor (MA) and would likely change the outcome; Held - the Appeal Panel considered that the additional evidence was relevant, probative and likely to change the outcome and it was readily apparent from an examination of the Medical Assessment Certificate (MAC) and the additional information that the MAC contains a demonstrable error; appellant re-examined by a MA member of the Panel; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 February 2021 the Secretary, Department of Communities & Justice lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 January 2021 with an amended MAC issued on 27 January 2021 correcting the page numbering in the original MAC.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· 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 that the worker be re-examined by a MA member of the Appeal Panel. As a result of their preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel was satisfied that the MA had made an error in his assessment under the PIRS scale noting the availability of additional relevant information as referred to below. The Appeal Panel considered that it was readily apparent from an examination of the MAC and the additional information that the MAC contains a demonstrable error. It was considered necessary by the Appeal Panel that the respondent worker be re-examined by a MA member of the Appeal Panel so that, in fairness to the respondent worker, this additional information could be put to the respondent.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) emails to and from the worker dated 6 November 2020, and 17 December 2020, and
(b) Application for Relief dated 18 December 2020 in relation to unfair dismissal attaching a Certificate of Capacity of Associate Professor A Iannuzzi.
The appellant submits that the evidence is relevant to address the incorrect/omitted history taken by the MA. The appellant submits that the evidence was not available and could not reasonably have been obtained because the issues the appellant seeks to clarify only came into existence following the MAC. The appellant submits that the additional relevant information is relevant because it discloses evidence that is inconsistent with the PIRS rating given by the MA and would likely change the outcome.
The respondent worker objected to the additional evidence submitting that it could have been obtained before the assessment and is not likely to change the outcome.
The Appeal Panel considered that the additional evidence was relevant, probative and likely to change the outcome and it was readily apparent from an examination of the MAC and the additional information that the MAC contains a demonstrable error.
The Appeal Panel determined that the following evidence should be received on the appeal:
(a) emails to and from the worker dated 6 November 2020, and 17 December 2020, and
(b) Application for Relief dated 18 December 2020 in relation to unfair dismissal attaching a Certifcate of Capacity of Associate Professor A Iannuzzi.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and the additional relevant evidence admitted above 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 14 July 2021 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was remitted for assessment under section 319 of the 1998 Act as a result of psychological injury deemed to have occurred on “19 June 2019 for nature and conditions”.
The MA issued a MAC certifying a 22% whole person impairment (WPI) as a result of the referred injury.
An assessment was made by the MA under the PIRS rating scale. All categories of assessment are complained about on appeal. The respondent submitted that the MA did not err and an assessment was not made on the basis of incorrect criteria and sought that the MAC be confirmed.
The Appeal Panel admitted the additional evidence filed by the appellant.
The Appeal Panel considered that it was readily apparent from an examination of the MAC and the additional information that the MAC contains a demonstrable error. It was considered necessary by the Appeal Panel that the respondent worker be re-examined by a MA member of the Appeal Panel so that, in fairness to the respondent worker, this additional information could be put to the respondent.
Accordingly a re-examination was conducted by a MA member of the Appeal Panel, Professor Nicholas Glozier and he reported to the Appeal Panel as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-5641/20 |
| Appellant: | Secretary, Department Communities & Justice |
| Respondent: | Stephen Wallace |
| Date of Determination: | 20 July 2021 |
| Examination Conducted By: | Professor Nicholas Glozier |
| Date of Examination: | 14 July 2021 |
1. The workers medical history, where it differs from previous records
I have reviewed the Medical Assessment Certificate by Dr Baker dated 9 January 2020 (I assume this is a typo, as with all pages being numbered 13, and must be 2021), and all the documentation in the Medical Appeal Panel Brief including the GP notes, statement, medicolegal reports by Dr Oldtree-Clark dated 5 March 2020 and Dr Martin dated 9 September 2019 and 4 June 2020.
The original documentation also recorded the occurrence of a significant motorbike accident in 2018 with a loss of consciousness, not noted in the MAC. We explored this and he reported that his bike flipped when he hit a kangaroo and he was in hospital for two or three hours. He described no posttraumatic concussion or ongoing cognitive sequelae to this that would be germane to this assessment. He has stopped riding his bike but only did so in early 2021 because he felt he was not concentrating as well and on long distance rides would be distractible, ruminating about the events at work.
Today Mr Wallace reported that his only medication is a very occasional 2mg long-acting melatonin (Circadin) ifhe is having impairing sleep problems, although suggested he had not taken any for the past few weeks. He noted that he is not favourably disposed to psychotropic medication, and would rather manage his condition through keeping himself active. He stated the last time he had a bad period was around Easter when he took a counselling break. He said that his mood dipped with lethargy, increased irritability, and he got himself out of this by going for walks on the farm, (describing one particular cow to whom he is quite attached), using his ‘Christian self-talk,’ increasing his activities and returned to see his counsellor, David, with whom he has a very good relationship and has been seeing him fortnightly. His symptoms have ameliorated somewhat since that time.
I am cognisant of the other medical history supplied within the appeal, including his general practitioner, A/Prof Iannuzzi, providing work capacity certificates stating that he had the capacity for some type of work for eight hours a day, four days a week, until 6 January 2021.
The appeal provides information attesting to Mr Wallace’s view of his work capacity in late 2020 and into 2021, which I confirmed today. He reported that at that time he continued to function as the union delegate for western NSW as he had done for many years. Whilst discussing this role he provided me with detailed stories about how he had helped colleagues over the years in their dealings with the department. He described the issues around the governance documentation for the Orana group noted in the email he sent in December 2020, explaining the details of this and its implications. Subsequently in early 2021 he received ‘a nasty email’ from the department that, because he had been medical retired, he was no longer able to undertake the delegate role although he felt he was capable of continuing to do so at that time and even now. He said he is still a member of the union. He also pointed out that his application to have his medical retirement reviewed as unfair dismissal has still never been replied to and he continues to believe that he would be capable of functioning in some role, although not as a frontline JIRT officer, e.g. in administration or other roles. This confirms the function he described he was capable of in his email of Friday 6 November 2020 when he offered to undertake administrative work across the state, allowing case workers to continue with their difficult frontline work. Again he thinks he would still be able to operate in such a role although not fulltime. He believes the DCJ’s negative attitude towards him because of his union activities over the years has now affected his wife. His wife continued fulltime work up until a week ago when she has effectively retired. He stated there were issues over renovations to the building she worked in resulting in pest contaminant exposure, which he believes culminated in her contracting a chest infection and that the department’s treatment of her reflects ongoing animosity towards him.
2. Additional history since the original Medical Assessment Certificate was performed
Current Symptoms
Mr Wallace describes himself as somewhat angry, at times irritable anddistractible, and can be tearful if he thinks about problems with the DCJ. He finds the irritability and tension with his family difficult as he has never been like this before. He tries to keep himself distracted with activities, as otherwise he finds himself ruminating about the events at work, perpetuated by the recent effects on his wife. His mood is however reactive and he is able to enjoy social situations and describes a number of activities and interests. He also particularly appreciates the support through the community and church. He goes to bed around 10pm or 11pm although said he is often not tired. There is no onset insomnia but he describes staying asleep is difficult. He has approximately one or two nightmares every 3-4 weeks, i.e. a significant reduction compared to many months ago. Last week was the first time he ever woke up with a cold sweat. He wakes during the standard microarousals between sleep cycles. When woken he can lay awake for quite some time before getting another sleep cycle and going through sleep cycles with periods of awakening in between getting up around 7am or 8am. He also noted that he lies down frequently and may nap during the day. As such, given his age he probably achieves an overall normal sleep duration but with a poor sleep efficiency, undermining his sleep pressure through daytime naps. He describes difficulties with his energy, such that he can only does demanding tasks for an hour or so before finding that he has to rest, finding such demands more tiring than previously. Even so, his sleep disturbance is not enough to warrant more than very occasional Circadin.Current Functioning
Up until last week his wife has been working and he has functioned for most of the day on his own. His daughter had just moved back to the house from her university in Wollongong with a friend because of the COVID lockdown. They continue to live out on a farm near Coonabarabran, which is relatively unaffected by COVID restrictions. When he gets up he says he makes himself coffee, breakfast and is a regular follower of ABC News. He does not avoid any particular news stories but will avoid movies or drama shows if he thinks there will he child protection issues. He then spends the day undertaking tasks which in some part are a distraction to keep him busy. He has a dog, Elliott, whom he will walk regularly although he now shares this with his wife. He says he is working on his Unimog, trying to renovate this, although describes this as working on it for an hour and then taking an hour in between as he feels fatigued and somewhat worn out. He said this is the reason why he has virtually relinquished his Rural Fire Service duties, having gone to only one or two training sessions over the past couple of years because they ‘knock me around.’ He has not done any active duty for much longer. He goes to town once or twice a week where he will pick up basic groceries if needed and visits his mum at her nursing home s. He says that he struggles to do larger shopping trips because he needs to take a list and otherwise will forget items, which can enhance his anxiety. His wife continues to do most of the shopping, cooking and cleaning although he will make dinner sometimes. This has caused some tension when she was working fulltime and he was not. He is responsible for most of his self-care, although at times requires prompting for some aspects of this. He described an initial loss of weight in the early parts of his difficulties followed by weight gain and he is now actively managing his weight with diet and increased activity.In terms of his recreational activities, he continues to attend church weekly. He particularly enjoys the monthly ‘male fellowship breakfast ‘which he says can help ‘pull me out of a mood’. He describes two very good friends, one who lives on the Central Coast, one in Castle Hill whom he has known for many years, and gave me a detailed history of how he met them. He would always stay with one in Castle Hill whenever he went to Sydney. He described the social support through the church as ‘excellent’ and the minister also supporting his wife with her recent work problems. He says he can generally drive as and where he needs to, but found that on long distance drives in their rural area he could be distractible and lose concentration. In February this year he drove to Yamba with his wife for a three-week holiday that he has planned with his Sydney friend, meeting up with them for one of the weeks. He described feeling somewhat better there. He owns a tinny but there is no option to do so locally but enjoyed the ‘drift fishing’ when there. His Thursday night football is a regular event and he has been a long-term Eels supporter. He still cares for his reptiles but with less enthusiasm than previously, describing to me the routine which is quite easy during the winter months as they are particularly low maintenance although he would have to feed them on a hot day, even in the winter.
On the farm he is responsible for checking the swimming pool and enjoys getting on a quad bike or walking, and going to see cattle. He is not responsible for any maintenance or other activities but rather calls tradesmen and supervises these if necessary for the owners. He was however involved in baiting mice during the recent mice plague.
3. Findings on clinical examination
Mental State Examination
This was characterised as being quite different to the mental state recorded by the AMS and closer to the mental states recorded by Dr Martin and Dr Oldtree-Clark in 2020.He was reasonably kempt, wearing outdoor work gear and explained how a friend’s son had been able to provide him with these hi-vis vests recently which enabled him to feel safer when on the quad bike. He was engaged, affable, and friendly, and a discursive and detailed historian, if not raconteur, often providing interesting and detailed stories to back up his experiences. He showed a full range of affect and was very briefly tearful when describing what has been happening to his wife recently. There was no formal thought disorder. He has sleep of a borderline/normal sleep duration although of a disturbed broken nature with no onset insomnia and poor efficiency associated with daytime fatigue. He continues to motivate himself but has negative and, at times, angry cognitions about what has happened to him but does not appear hopeless, helpless or have significant negative cognitions about his own function. There are some intrusive thoughts and infrequent nightmares, particularly compared to the frequency of some time ago. There is minimal avoidance but he can be angry and irritable with family and others which he finds egodystonic. There are no psychotic phenomena.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
Summary
Mr Wallace would appear to have had a Major Depressive Episode for some time which has ameliorated with treatment and removal from some of the stressors such that he presents with a condition of only borderline clinical significance. There are some ongoing posttraumatic-type symptoms although these do not meet the criteria for a full-blown PTSD. I was struck by the difference in mental state from that described by the AMS to that presented today, and cannot explain whether this reflects either an improvement over time or some degree of variability in his condition.Psychiatric Impairment Rating Scale categories
Self-Care and Personal Hygiene
For most of this year Mr Wallace’s daughter has been living away at Wollongong, thus unable to provide the support identified by the AMS. His wife also worked full-time. Although he described prompting, he also described being able to do some chores, get his own groceries, undertake some cleaning, activities around the home, looking after aspects of the property, and is actively addressing his weight none of which are compatible with an inability to look after himself and are indicative of a mild impairment. Class 2.Social and Recreational Activities
He maintains weekly church-going and regular attendance at his monthly men’s fellowship breakfast that he enjoys. He describes some of his activities around the farm, e.g. renovating the Unimog, as recreational and continues to follow the Eels and Thursday night football regularly. He remains in contact with two close friends and whilst holidaying earlier this year, enjoyed fishing, although at times did this on his own. Again, this contradicts the report that he ‘no longer plans holidays’ as he and his wife took a holiday in February, only a month after the original MAC, and he described the plans required for that with quite frequent contact with the friends he was meeting there, building up to that holiday: a mild impairment. Class 2.Travel
He described some aspects of travel that he has relinquished due to some difficulties focusing and concentrating on long distances but has been able to drive to Yamba with his wife and describes being able to drive locally without difficulty: a mild impairment. Class 2.Social Functioning
There is, at most, a mild impairment in social functioning, describing ongoing social support locally, within his church, maintenance of close friendships but some irritability and tension within the family. Class 2.Concentration, Persistence and Pace
Cognitively he is able to focus for up to an hour on various tasks, e.g. renovating his Unimog and tasks around the home, as well as watch football games, but then feels fatigued. He was a highly-detailed, discursive and entertaining historian, not indicating any overt objective cognitive impairment: a mild impairment. Class 2.Employability
He outlined quite clearly how he thought he would be employable for at least some hours a week in administrative and other roles with the DCJ even now, and had been offering to do so at the time of the Medical Assessment Certificate, supported by a quite generous work capacity by his GP. From the report of his functioning today, he would at most be able to work part-time and with the intermittent requirements because of the fatigue he feels after an hour or so of demanding activities, may not actually be able to work at the level he believes and with some variability in his condition, may not be totally reliable, indicative of a severe impairment. Class 4.Classes in ascending order: 2,2,2,2,2,4
Aggregate: 14
Median: 2Whole Person Impairment: 7%
Given he was substantially more impaired some time ago and he reported deterioration when he stopped his counselling this year a 1% treatment effect is applied for a “substantial elimination” of his impairment
Final Whole Person Impairment: 8%”
Professor Glozier provided a comprehensive assessment. The Appeal Panel adopts the findings and report of Professor Glozier.
This results in an assessment of 8% WPI as a result of the referred injury and accordingly the Appeal Panel will revoke the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 January 2021 and amended on 27 January 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr John Baker 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.Pyscholical/Psychiatric | 19 June 2019 for nature and conditions | Chapter 11, pages 60-68 | Chapter 14 | 8% | Nil | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
Jane Peacock
Member
Professor Nicholas Glozier
Medical Assessor
Dr Michael Hong
Medical Assessor
29 September 2021
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