Secretary, Department of Planning, Industry and Environment v Connor
[2022] NSWPICMP 461
•16 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Planning, Industry and Environment v Connor [2022] NSWPICMP 461 |
| APPELLANT: | Secretary, Department of Planning, Industry & Environment |
| RESPONDENT: | Rebecca May O’Connor |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 16 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appellant relied on grounds for appeal listed in sections 327(3)(b),(c),(d) of the Workplace Injury Management and Workers Compensation Act 1998; additional relevant information related to psychometric testing of respondent; appellant submitted this information substantiated respondent exaggerated her symptoms; appellant submitted history Medical Assessor (MA) obtained was inconsistent with the evidence and was inconsistent with respondent exaggerating her symptoms; discussion of reliability of psychometric testing; additional information did not lead Panel to different conclusion from that reached by MA; Held – Panel found that MA’s assessment of respondent’s impairment was open to him and appropriate and adequately explained; Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 September 2022 the Secretary of the Department of Planning, Industry & Environment (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 August 2022.
The medical dispute that a delegate of the President of the Personal Injury Commission (Commission) referred to the Medical Assessor to assess related to the degree of permanent impairment Rebecca May O’Connor (the respondent) had from a psychiatric injury she suffered due to events that occurred in her employment with the NSW Government within the Department of Panning, Industry & Environment. The Appeal Panel understands that, in accordance with s 26 and Schedule 1 of the Government Sector Employment Act 2013, the appellant is the respondent’s employer.
The medical dispute referred to the Medical Assessor was described by the delegate in the referral in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM 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: 14/05/17 (deemed)
Body part/s referred: Psychiatric/psychological disorder
Method of assessment: Whole Person Impairment”
Medical Assessor Baker issued a Medical Assessment Certificate (MAC) in response to that referral on 12 August 2022. In that, he certified he assessed the respondent had 17% whole person impairment (WPI) from her injury.
The appellant relies on the following grounds for 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.
Another delegate of the President was satisfied that, on the face of the application, at least one ground for 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).
RELEVANT FACTUAL BACKGROUND
The respondent worked for the appellant as a manager of title operations. Due to events that occurred during the course of her employment until 14 May 2017 she suffered a psychiatric injury.
The respondent’s solicitors organised for consultant forensic psychiatrist Dr Thomas Oldtree Clarke to examine the respondent on 10 March 2021 and to report to them on various matters relating to the respondent’s injury, including her WPI from her injury. In a report dated 26 March 2021 Dr Clarke advised the respondent’s solicitors that he had diagnosed the respondent’s injury to be Major Depressive Disorder. In an impairment assessment report of the same date he advised he assessed the respondent’s WPI to be 18% from her injury.
In a letter the respondent’s solicitors wrote to the appellant’s insurer on 25 May 2021 they advised the insurer that the respondent claimed compensation from it in the amount of $43,630 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 18% WPI from her injury. They specified the date of the respondent’s as 14 May 2017.
The appellant’s solicitor then arranged for the respondent to be examined by consultant psychiatrist Dr Peter Young on 12 October 2021. In a report of 18 October 2021 addressed to the appellant’s solicitor Dr Young advised that the symptoms the respondent was then reporting met the diagnostic criteria for Persistent Depressive Disorder. He noted that he had previously examined the respondent, at which time he diagnosed her to have Adjustment Disorder with mixed anxious and depressed mood. He said that had now progressed to a more pervasive depressed state. In an impairment assessment report also dated 18 October 2021 Dr Young advised he had assessed the respondent to have 22% WPI from her Persistent Depressive Disorder. Dr Young advised that events that occurred in the respondent’s workplace had contributed to the onset and development of her condition.
The appellant’s solicitors subsequently asked Dr Young to review “desktop investigation” reports that Procare Group had prepared, one dated 17 January 2019 and the other 24 September 2021. These reports are in evidence before the Appeal Panel. Briefly, these reports provide a summary of information about the respondent that is available on line through various social media sites, news archives, and data bases containing information collected by Government authorities such as the NSW Land and Property Information Service, Court Data Australia and Personal Property Securities Register.
In response to the appellant’s solicitor’s request, Dr Young in a report dated 2 November 2021 said that “given the activity and positive effect observed in my opinion it is more likely than not the diagnosis has not progressed beyond adjustment disorder and major depression is not present”. Dr Young said that “social media evidence shows the claimant engaging in social recreational activities and in social relationships to a greater extent than that she reported”. Dr Young said “while such evidence should be viewed with some caution where there are clear factual anomalies such as in this case activities associated with her yacht that she has explicitly denied, it is reasonable to infer that there is overstatement of both symptoms and impairments”. Dr Young suggested that “further objective assessment with appropriate psychometric testing is recommended to test self-report validity”. Dr Young revised his assessment of the respondent’s impairment based on the desktop investigation reports such that he assessed the respondent to have 7% WPI.
On 12 November 2021 the appellant’s insurer wrote to the respondent, care of her solicitors, notifying her under s 78 of the 1998 Act that it disputed that she was entitled to “permanent impairment lump sum compensation”. It advised her that “her accepted primary psychological injury has not resulted in at least 15% permanent impairment as required by s 65A(3) of the Workers Compensation Act 1987”. It noted that Dr Young had assessed she had 22% WPI, but “it appeared however that the doctor had not fully considered the evidence provided to him in the form of desktop investigations prepared by Procare Investigations dated 17 January 2019 and 24 September 2021”. It advised her that Dr Young was asked “to consider that evidence” and that he subsequently “provided a supplementary report dated 2 November 2021 in which he amended his assessment to 7% WPI”. It advised her for that reason it did not agree that she was entitled to lump sum compensation under s 66.
Thereupon the respondent initiated proceedings in the Commission seeking determination of her claim for compensation under s 66 of the 1987 Act.
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.
Additional evidence
The appellant sought that the Appeal Panel receive into evidence a report of forensic psychologist and clinical neuropsychologist Dr Peter Ashkar dated 25 August 2022 and a further report of Dr Peter Young dated 5 September 2022. The appellant sought to rely upon that additional evidence in support of its appeal based on s 327(3)(b) of the 1998 Act. Dr Ashkar’s report related to an assessment he conducted of the respondent on 30 March 2022 and to psychometric testing he conducted of the respondent using “clinical symptoms, personal characteristics and response style (MMPI-2-RF)” and “adaptive behaviours
(ABAS-3)”. Dr Young’s report related to both his review of Dr Ashkar’s report and his review of the MAC.Within his report Dr Ashkar provided a summary of the documents he had reviewed, being the report of Dr Clarke dated 26 March 2021, the report of Dr Young dated 18 October 2021, a report of psychiatrist Dr Peter Whetton dated 14 February 2019 and a report of psychologist Lauren Bloemer dated 1 February 2019. Dr Ashkar also detailed in his report the respondent’s current concern and how she participates in each of the Psychiatric Impairment Rating Scale (PIRS) categories. Dr Ashkar set out the respondent’s developmental and psychiatric history and her reported use of alcohol. He set out briefly her medical history. He recorded making the following observations of the respondent:
“Ms Connor presented as a woman of her documented age. Her grooming was appropriate for the situation and appeared adequate. Her behaviour was calm and controlled. Her mood was reactive but impressed as somewhat flat and restricted. Her affect (expression of emotion) was sad and teary, with occasional expressions of anger (when speaking about her experiences in the workplace). There was no evidence of clinical anxiety, rapid or pressured speech, flight of ideas, psychosis, or intoxication. She was cooperative and without protest or challenge or complaint during the assessment and there were no signs of personality disturbance. Cognitively, she impressed as bright and intelligent, her memory for facts and personally experienced events appeared to be intact, and there was nothing in her behaviour to raise concerns about her cognition.”
Dr Ashkar summarised the results of psychometric tests that he had the respondent complete. Dr Ashkar said that the “clinical symptoms, personality characteristics and response style” test indicated “over reporting of symptoms”. Dr Ashkar said that the “level of over reporting is uncommon even in individuals with severe medical and psychological difficulties and provides compelling evidence of symptom exaggeration and, in the context of her claim possible malingering”. Dr Ashkar said that the respondent’s “over reporting of symptoms was so extreme that it was not possible to interpret her profile”.
Dr Ashkar also said “adaptive behaviours” test “provides a measure of adaptive behaviour functioning”. Dr Ashkar said that the respondent’s “responses placed her overall level of functioning ... in the ‘extremely low’ range (second percentile)”.
Dr Ashkar reported that his findings from his assessment of the respondent, “based on objective psychometric testing provide compelling evidence that [the respondent] is exaggerating her symptoms”. Dr Ashkar said that the respondent’s “symptoms may (or may not) have been genuine at the time of her reported injury but they are not genuine as she expresses them today”. He said that “her symptom exaggeration makes it impossible to know where her genuine symptoms begin and end and to make a reliable diagnosis at this time”. He said that “it is not clear why she is exaggerating her symptoms but it is difficult to ignore the possibility that she is doing so to support an undisclosed agenda (NB: the base rate of symptom exaggeration in compensation settings is in the order of 40%)”.
Dr Young in his report of 5 September 2022 said that the psychometric testing, as reported by Dr Ashkar, “shows evidence of systematic over reporting of symptoms which are in my opinion of [sic] sufficient to establish [sic] to invalidate the history as provided to me and to other medical examiners”. He said that “the diagnoses and other conclusions drawn from reliance on the history are unreliable and cannot be reliably determined”. Dr Young said that “the findings of Dr Ashkar confirm my opinion that the self-report of functioning is not reliable and that the true degree of impairment is significantly less than that reported”.
Dr Young commented that the Medical Assessor Baker’s opinion with respect to diagnosis and permanent impairment “is based on face value acceptance of [the respondents] self-report”. Dr Young said that the Medical Assessor’s calculation of WPI was based on the “history as described to him”. Dr Young said that in his opinion the Medical Assessor had “not properly considered the inconsistencies in history and presentation”. He said that the Medical Assessor noted that the respondent’s symptoms have “waxed and waned” but Dr Young said that the Medical Assessor had not considered variability in symptom reporting. Dr Young said that in his opinion the Medical Assessor had not properly considered inconsistencies in reported functioning and actual demonstrated behaviour/activity. Dr Young said that the clearest example of that was the respondent’s participation in the Sydney to Hobart Yacht Race in 2019 which he said was well known to be an arduous event and could not be described as “travelling from Sydney to Hobart in company”.
The reports of Dr Ashkar and Dr Young came into existence after the MAC. They were not therefore available to the appellant before the medical assessment and could not have been reasonably obtained by the appellant before the assessment. The information relates to the psychiatric symptoms of the respondent and consequently is of a medical nature and germane to the medical dispute that the Medical Assessor assessed.
Given that, the Appeal Panel has decided to receive that material into evidence.
Further medical examination
The Appeal Panel also determined during its preliminary review that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment.
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. Additionally, the Appeal Panel took into account the report of Dr Ashkar dated 25 August 2022 and the report of Dr Young dated 5 September 2022.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor examined the respondent by video conference on 26 July 2022. He detailed in the MAC the history he obtained with respect to the occurrence of the respondent’s injury, the symptoms she has experienced thereafter and the treatment she has received.
The Medical Assessor noted that the effect of the respondent’s psychological injury “had waxed and waned in its intensity and severity since onset of 14 May 2017”. The Medical Assessor noted that the respondent had not fully recovered from her injury and had never been symptom free since suffering her injury and remained symptomatic from her injury at the time he assessed her permanent impairment.
The history the Medical Assessor obtained included the respondent’s engagement in social activities and her capacity with respect to activities of daily living, including her participation in the Sydney Hobart Yacht Race in 2019. With respect to that, the Medical Assessor recorded the following in the MAC:
“Mrs Connor reported that her husband was a retired NSW Police officer. She had three sons to this union who were dependent on her. She reported that she had one prior relationship. She reported her husband had one prior relationship. They had six children within this blended family.
Mrs Connor reported that her interests were reading, sailing, studying and developing new skills. He (sic) reported she had found sailing was her self-sustaining hobby. She also maintained an interest in her children. Mrs Connor took leave in 2017. She was hopeful matters she had raised at work would quickly progress. The family purchased a yacht as a means of distraction from the anxieties and worries in her workplace.
Mrs Connor had not been able to live independently since the onset of this workplace
injury. She was reliant on her husband for purchasing of all the family’s food. Her husband also cooked the family meals. She relied on her husband to clean the family home. She relied on her husband to prompt her to shower and maintain her self-care and personal hygiene. She did not assist with garden maintenance. Her husband monitors and prompts her medication regime.
Mrs Connor reported she had maintained her primary interest and hobby of sailing since the onset of this workplace injury. She had been supervised by her family friend, Mr Hancock whilst sailing in the 2019 Sydney to Hobart race. She had also continued to attend her son’s powerboat racing events that were also organised by Mr Hancock. She did not socialise at any of these events. She would attend her yacht about twice weekly and sit on board in the vessels berth. Mrs Connor had sailed about three times in 2022 with the support of Mr Hancock. She had stopped swimming at the gym due to anxiety and the need to avoid people she knew in the centre. Her husband organised Christmas 2021 at the yacht in the berth with their children.
Mrs Connor reported she was able to leave the family home to drive to familiar locations such as her yacht and to her children’s sport. She reported she would go as an organised family group. She was able to attend her medical appointments face to face when required. She never travelled to unfamiliar places alone. She was with her husband whilst travelling and sailing in 2017 and in 2019.
Mrs Connor reported that that the relationship with her husband was strained as she had angry outbursts towards him. She reported that her relationship with her children were also strained. She stated that she had not endured any domestic violence or separation. She was not expecting divorce or estrangement from her husband or children.
Mrs Connor stated that since the onset of this work-related injury she was less able to concentrate and persist with complex tasks. She reported not being able to complete a Yacht masters and Day skipper’s course as she would become frustrated, agitated and make recurrent errors. She abandoned this course. She was not able to maintain her concentration to persist with her clients’ needs and her business closed. She had not been able to cook from a recipe and she had abandoned cooking for her family. She would abandon reading after a few lines of text.
Mrs Connor was unable to successfully return to work fulltime in a different environment. She was unfit to return to work in her primary substantive role. She had not been successfully rehabilitated to a lesser role by her employer, prior to being terminated. She was erratic and had not been able to maintain a small private business. She was not working in any role at the time of this assessment. She could not work more than 1 day prior to becoming symptomatic from this primary psychological injury.”
The Medical Assessor recorded the following findings from his mental state examination of the respondent:
“Mrs Connor presented as an anxious and agitated woman. She was not dishevelled or unkempt. She reported intrusive thoughts of being unfairly treated by her employer. She continued to experience distressing nightmares involving the bullying, harassment and unfair dismissal she endured. At the time of recalling these distressing memories, Mrs Connor became tearful, agitated and had an angry outburst. Her speech was normal in rate. Her volume of speech was at times increased when she became agitated.
Mrs Connor’s concentration, persistence and pace were reduced. She had not been able to complete the necessary complex tasks to work in her primary substantive role. She failed her yacht maters and day skipper’s role. She had also been unsuccessful in the setting up of a new business due to her inability to contract and complete the complex work, and subsequently the business failed.
Mrs Connor was frightened and agitated by her intrusive anxious ruminations. She avoided contact with her swimming community. Mrs Connor had lost her self-esteem and that she was unable to socialise in public. She reported intrusive feelings of shame and guilt. Mrs Connor did not describe any delusional ideas or psychotic symptoms. She lacked self-confidence and avoided places where she would be in public. She was insightful into her condition. Her judgment was normal.”
The Medical Assessor said that he based his assessment of the respondent’s WPI on the history he obtained, the documentation that the Commission provided him and his mental state examination of the respondent. The Medical Assessor specifically noted that he exercised caution in his interpretation of the social media within the evidence, which evidence the Appeal Panel observes was contained in the desktop investigation reports Procare Group prepared on 17 September 2019 and 24 September 2021. The Medical Assessor said that the content of photographs appearing within that material “cannot confirm normality of self-care and personal hygiene, concentration, persistence and pace and employability”. The Medical Assessor said that “the absence or presence of a group’s capacity to function cannot rely solely on an informed or posed image at a moment in time”.
The Medical Assessor also noted that although the respondent participated in the Sydney to Hobart Yacht Race in 2019 her capacity to maintain frequent or demanding sailing events had reduced by 2022 to about three occasions only.
The Medical Assessor extracted within the MAC key parts of the documentary evidence that the Commission provided him and made comment upon some of that.
The Medical Assessor said that at the time he assessed the respondent her primary psychological injury was an adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder in early remission. In the PIRS rating form appended to the MAC, the Medical Assessor set out his classifications of the respondent’s impairment for each of the several PIRS categories and his reasons for his classifications which were as follows:
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
3
Mrs Connor had not been able to live independently since the onset of this workplace injury. She was reliant on her husband for purchasing of all the family’s food. Her husband also cooked the family meals. She relied on her husband to clean the family home. She relied on her husband to prompt her to shower and maintain her self-care and personal hygiene. She did not assist with garden maintenance. Her husband monitors and prompts her medication regime.
Social and recreational activities
2
Mrs Connor reported she had maintained her primary interest and hobby of sailing since the onset of this workplace injury. She had been supervised by her family friend, Mr Hancock whilst sailing in the 2019 Sydney to Hobart race. She had also continued to attend her son’s powerboat racing events that were also organised by Mr Hancock. She did not socialise at any of these events. She would attend her yacht about twice weekly and sit on board in the vessel’s berth. Mrs Connor had sailed about three times in 2022 with the support of Mr Hancock. She had stopped swimming at the gym due to anxiety and the need to avoid people she knew in the centre. Her husband organised Christmas 2021 at the yacht in the berth with their children.
Travel
2
Mrs Connor reported she was able to leave the family home to drive to familiar locations such as her yacht and to her children’s sport. She reported she would go in an organised family group. She was able to attend her medical appointments face to face when required. She never travelled to unfamiliar places alone. She was with her husband whilst travelling and sailing in 2017 and in 2019.
Social functioning
2
Mrs Connor reported that her relationship with her husband was strained, as she had angry outbursts towards him. She reported that her relationship with her children were also strained. She stated that she had not endured any domestic violence or separation. She was not expecting divorce or estrangement from her husband or children.
Concentration, persistence and pace
3
Mrs Connor stated that since the onset of this workrelated injury she was less able to concentrate and persist with complex tasks. She reported not being able to complete a Yacht master and Day skipper course, as she would become frustrated, agitated and make recurrent errors. She abandoned this course. She was not able to maintain her concentration to persist with her clients’ needs and her business closed. She had not been able to cook from a recipe and she had abandoned cooking for her family. She would abandon reading after a few lines of text.
Employability
4
Mrs Connor was unable to successfully return to work fulltime in a different environment. She was unfit to return to work in per primary substantive role. She had not been successfully rehabilitated to a lesser role by her employer, prior to being terminated. She was erratic and had not been able to maintain a small private business. She was not working in any role at the time of this assessment. She could not work more than 1 day prior to becoming symptomatic from this primary psychological injury.
The Medical Assessor noted that the median class was 3 and that the aggregate of the classes was 16 which correlated with a WPI of 17%, and hence his certification that that was the respondent’s permanent impairment from her injury.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the evidence, that now includes the report of Dr Ashkar dated 25 August 2022 and the report of Dr Young dated 5 September 2022, is at odds with the respondent’s assertions as to her symptoms and the extent of her impaired function. The appellant submitted that Dr Ashkar’s report “demonstrates” that the respondent engaged in significant over reporting of her symptoms. The appellant submitted that there is no “compelling” evidence of symptom exaggeration and malingering. The appellant submitted that Dr Young found, as reported in his report of 5 September 2022, that the respondent’s self-report of functioning was not reliable and that the true degree of her impairment was significantly less than reported.
The appellant submitted that both Dr Ashkar and Dr Young found that the psychometric testing that Dr Ashkar had administered revealed inconsistencies between the respondent’s reported symptoms and functioning and the objective evidence, such that the worker’s symptoms are not genuine.
The appellant submitted that the Medical Assessor’s assessment that the respondent had 17% WPI is inconsistent with the medical and factual evidence that was before the Medical Assessor, which the appellant submitted demonstrated that the respondent “was exaggerating in reporting her symptoms”.
The appellant submitted that the Medical Assessor had accepted the respondent’s self-report of symptoms and impairments without considering the extent of inconsistencies in the respondent’s history and presentation. The appellant submitted that, based on Dr Young’s opinion relating to the respondent’s participation in the Sydney to Hobart Yacht Race, the Medical Assessor erred in assessing the respondent’s impairment as Class 2 in the PIRS categories of travel, social functioning and social and recreational activities and as Class 3 in concentration, persistence and pace.
The appellant submitted that the Medical Assessor, with respect to his explanation for his assessment of the respondent’s impairment in the PIRS category of employment, “indicated that worker was unable to work for more than one to two days in any role in the Australian employment market before becoming symptomatic from the psychological injury”. The appellant submitted that the Medical Assessor did not provide specific reasons why the respondent could not return to work with any employer in the entirety of the market. The appellant submitted that the Medical Assessor also did not “account for the inconsistencies in the worker’s symptoms and presentation when making his assessment”.
The appellant submitted that based on Dr Ashkar’s assessment and report there was nothing in the respondent’s behaviour to raise concerns about her cognition.
With respect to self-care and personal hygiene, the appellant noted that Dr Ashkar observed the respondent to be groomed appropriately when he examined her and that her nails were polished. The appellant noted that the respondent attended a hairdresser once every eight weeks. The appellant submitted that “in the context of evidence of her over reporting, these actions indicate that the worker may have exaggerated the extent of her reliance on her husband and lack of self-care”.
The appellant submitted that the Medical Assessor based his assessment on incorrect criteria because he did not have regard to “the variation of the worker’s symptoms and relied on the worker’s self-report, without having adequate regard to the inconsistency in her symptoms and presentation”.
Although the appellant did not explicitly say so in its written submission, it seems to the Panel that when considered as a whole it is implicit from its written submissions that the appellant is submitting with respect to its appeal based on s 327(3)(b) that the additional evidence in the form of Dr Ashkar’s and Dr Young’s respective reports, which was not available at the time of the assessment, would lead the Appeal Panel to a different conclusion than that reached by the Medical Assessor. That is, that the additional evidence makes a material change to the circumstances as considered by the Medical Assessor.
In reply, the respondent submitted that the additional evidence in the form of Dr Young’s report of 5 September 2022 and Dr Ashkar’s report of 25 August 2022 does not substantiate the ground for appeal listed in s 327(3)(b) of the 1998 Act for two reasons. Firstly the evidence would not have made a difference to the Medical Assessor’s assessment. Secondly, it was not the Medical Assessor’s role to adjudicate between competing medical opinions, but rather to form his own opinion based on his own examination of how the respondent presented on the day of assessment. The respondent submitted the Medical Assessor did that.
The respondent submitted that the Medical Assessor considered the primary evidence and that the appellant is taking issue with how the Medical Assessor has interpreted that. The respondent submitted that as a consequence of that the further evidence that the appellant presented relates to the process by which the Medical Assessor made his assessment and consequently does not satisfy additional information as required by s 327(3)(b).
With respect to the submission the appellant made that the Medical Assessor did not provide specific reasons for why the respondent could not return to work with any employer in the entirety of the labour market the respondent submitted that the Medical Assessor was only required to set out in the MAC the actual path of his reasoning for why he made the assessment he did.
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.
With respect to the appellant’s appeal based on the ground for appeal provided in s 327(3)(b) of the 1998 Act, the question the Appeal Panel must ask itself is whether the additional information would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.[1] The answer is no.
[1] Lancaster v Foxtel Management Pty Ltd [2022] NSWC 929 at [13]
Psychometric testing administered to ascertain whether a worker is exaggerating symptoms or malingering needs to be interpreted with caution. Malingering or symptom exaggeration is not a psychiatric diagnosis. It is a behaviour of consciously exaggerating symptoms or impairment for gain.
Generally, psychometric tests for the detection of malingering are validated in simulation trials using subjects, often college students, that have been coached to pretend that they have the disorder of interest. In other words, psychometric tests used to determine whether a person is a malingerer or exaggerating symptoms have been validated using subjects, most likely college students, who have been coached to pretend that they are malingerers or symptom exaggerators. Those subjects do not and cannot represent genuine workers with a workplace injury.
Test results can vary depending on factors such as cultural background, gender, symptom severity and subject engagement during testing. Assuming a test has been validated in one group (and the Appeal Panel does not accept that simulation trials reach that standard), then it must also have been validated in the particular subject group, in this case an injured female worker of aboriginal heritage.
Further, it is necessary to know the extent to which both the volunteer simulation subjects and the genuine subject of a particular test have engaged in terms of their respective efforts in performing the test and also to know the symptom severity of the patient. Oftentimes, a patient who is the subject of a test will be highly anxious, which is unlikely to be the case with volunteer simulation subjects.
When determining the utility of a psychometric test it is necessary to know the positive predictive value (PPV) in a genuine test environment; that is, what percentage of injured workers testing positive to the condition of interest, in this case, malingering or symptom exaggeration actually are malingering. Put another way, what is the false positive rate? To determine a PPV it is necessary to know the prevalence in the subject population. We can only guess at the prevalence of malingering in injured workers seeking compensation because we lack a gold standard short of confession.
Further, psychometric tests ask questions in a structured manner but rely on a subjective responses from the subject. They allow for precision and statistical analysis but are not objective in the way that a medical test such as a blood test is.
Dr Ashkar did not provide his test scores for the respondent and did not discuss the limitations of his testing. The Appeal Panel does not have any data on how genuine malingerers or symptom exaggerators or subjects from diverse cultural backgrounds respond. Other potential confounding factors that are not known from Dr Ashkar’s report are the extent to which the respondent engaged in the testing, her effort and her symptom severity on the day of testing.
In the Appeal Panel’s view, the correct interpretation of the respondent’s responses to the tests is that, being outside of a statistical norm, they are invalid and cannot be interpreted further. They do not, in the Appeal Panel’s view, establish that the respondent was exaggerating her symptoms or malingering.
The Appeal Panel considers that the Medical Assessor obtained a correct history with respect to the occurrence of respondent’s injury and the respondent’s symptomatic response to her injury in the years thereafter until the date of assessment. The Medical Assessor noted that the respondent’s symptoms “waxed and waned” over the time subsequent to her injury. The Medical Assessor had regard to all the documentation that had been provided to him and obtained the history from the respondent against the background of having studied that material. In accordance with [1.6] of the Guidelines the Medical Assessor made his assessment of the respondent’s impairment as she presented on the day, having regard to the history he obtained and all the relevant medical information that had been provided to him. As indicated, the results of the psychometric testing that Dr Ashkar performed were invalid and hence, in the Appeal Panel’s view, the results of those tests as well as Dr Ashkar’s opinion based on them would not have resulted in the Medical Assessor forming a different opinion about the respondent’s permanent impairment. In any event, the result of the psychometric test and Dr Ashkar’s opinion based on it does not lead the Appeal Panel to a different conclusion than that reached from the Medical Assessor.
The same is the case with respect to Dr Young’s opinion expressed in his report of 5 September 2022.
The Appeal Panel, which is an expert panel in that it is constituted by two psychiatrists and a member of the Commission, does not consider, as Dr Young concluded, that the respondent’s results from the psychometric testing conclusively show evidence of over reporting of symptoms. Consequently, the Appeal Panel does not agree with Dr Young’s opinion that those results invalidate the history provided to medical examiners. The Appeal Panel disagrees with Dr Young’s opinion that the respondent has exaggerated or feigned her symptoms.
The Appeal Panel also does not agree with Dr Young’s opinion that the Medical Assessor did not properly consider any potential inconsistencies in the respondent’s history and presentation. As mentioned, it is apparent to the Appeal Panel from the MAC that the Medical Assessor examined the material that had been provided to him. He said so in the MAC. He extracted key parts of the evidence in the MAC. He noted that the respondent’s symptoms waxed and waned over the course of time. He explicitly said in the MAC that the respondent’s presentation was consistent with her diagnosed condition.
The example of the respondent’s participation in the Sydney to Hobart Yacht Race that Dr Young used as an example to support his opinion that the Medical Assessor had not properly considered the inconsistencies in the respondent’s history and presentation does not in the Appeal Panel’s view demonstrate that that is the case. The respondent’s participation in that event was approximately two and a half years prior to the Medical Assessor’s assessment. The Medical Assessor had regard to the respondent’s participation in that activity, and specifically explored her current sailing activities. Her participation in that activity years ago would not, in the Appeal Panel’s view, be inconsistent with the manner in which she presented to the Medical Assessor at the time of her examination. The Medical Assessor has, as said, had regard to her participation in that event.
The respondent’s participation in the event does not, in the Appeal Panel’s view, demonstrate that the Medical Assessor erred in the exercise of his clinical judgment when assessing the respondent’s permanent impairment.
The Appeal Panel also considers that the ground provided in s 327(3)(d) of the 1998 Act is not established. The appellant’s submissions with respect to this ground are in substance that the Medical Assessor did not have proper regard to the evidence. According to the appellant, the history the Medical Assessor obtained and the respondent’s presentation at the time of assessment was inconsistent with this evidence. According to the appellant this evidence established the respondent was over exaggerating her symptoms.
In the Appeal Panel’s view it is apparent from the MAC that the Medical Assessor did have regard to all the evidence that was before him and obtained a history that was accurate and consistent with that evidence.
The Appeal Panel considers that the Medical Assessor’s assessment of the respondent’s impairment in the six PIRS categories was adequately explained by him and based upon the reasons he provided within the table appended to the MAC his assessment was appropriate.
With respect to his rating that the respondent had a Class 3 impairment in the category of self-care and personal hygiene, the Appeal Panel observes that at the time the respondent presented for examination by the Medical Assessor, the Medical Assessor noted she was not dishevelled or unkempt. That is consistent with her having polished nails and attending a hairdresser every so often. The Medical Assessor’s assessment was based on the respondent not being able to live independently and being reliant on her husband to undertake certain household tasks and having to be prompted by her husband with respect to her self-care and personal hygiene. His assessment was appropriate. There was no error with it.
With respect to the Medical Assessor’s rating of the respondent’s impairment as being Class 2 in the categories of social and recreational activities and social functioning, again the Appeal Panel considers that those assessments were open to the Medical Assessor and appropriate for the reasons he set out in the table. As the Medical Assessor noted within the MAC, caution has to be exercised when interpreting photos that the respondent posted in social media, which depict her at a particular point in time. The Medical Assessor had regard to the social media photos. In the Appeal Panel’s view the fact that the photos show the respondent participating in social life and recreational activities does not result in the Medical Assessor having made an error with respect to his classification of the respondent’s impairment in the categories of social and recreational activities and social functioning.
The Appeal Panel also considers that the Medical Assessor’s rating of the respondent’s impairment in travel as Class 2 was also open to the Medical Assessor based on the material before him and for the reasons he provided. The Medical Assessor was aware of the travel that the respondent had previously done. The Medical Assessor noted that the respondent would not travel to unfamiliar places alone but would travel to familiar places, such as to her children’s sport and medical appointments alone. As said, the Appeal Panel considers that a rating of Class 2 is appropriate.
The Appeal Panel also considers that the Medical Assessor’s rating of the respondent’s impairment in concentration, persistence and pace at Class 3 was open to him and for the reasons he explained. The Appeal Panel observes that although the respondent commenced a course to qualify as a yacht master and day skipper she did not complete those courses. The Appeal Panel notes that the Medical Assessor found from his mental state examination of the respondent that her concentration and persistence and pace were reduced.
The Appeal Panel also considers that the Medical Assessor’s rating of the respondent’s impairment in employability as being Class 4 was open to him based on the material before him, including the history he obtained. His reasons for rating the respondent’s impairment in this category as being Class 4 was that she has been unable successfully to return to work in a fulltime and different environment; that she is unfit to work in her primary substantive role; that she had not been successfully rehabilitated to a lesser role by the appellant; that she was unable to maintain a small private business; and that she was not working at the time the Medical Assessor assessed her. The Medical Assessor said within the body of the MAC that the respondent’s psychiatric symptoms from her injury would become prominent after one to two days of work in any role. That conclusion in the Appeal Panel’s view was open to him based upon the history the Medical Assessor obtained and his findings from his mental state examination of the respondent, and in the Appeal Panel’s view accords with the rating he made of the respondent’s impairment in this category. The Appeal Panel considers that the Medical Assessor has adequately exposed his reasoning for assessing the respondent’s impairment in this category as being Class 3.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 August 2022 should be confirmed.
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