Shaheen v Maxitrans Services Pty Ltd; Maxitrans Services Pty Ltd v Shaheen
[2024] NSWPICMP 546
•7 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Shaheen v Maxitrans Services Pty Ltd; Maxitrans Services Pty Ltd v Shaheen [2024] NSWPICMP 546 |
| APPELLANT: | Lourda Shaheen |
| RESPONDENT: | Maxitrans Services Pty Ltd |
| APPELLANT: | Maxitrans Services Pty Ltd |
| RESPONDENT: | Lourda Shaheen |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 7 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological Injury; worker appealed and respondent employer cross-appealed; worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale (PIRS) categories namely, concentration, persistence and pace as well as failure to allow for effects of treatment; employer cross-appealed alleging error in the PIRS categories of self- care and personal hygiene and social and recreational activities; Held – no error found; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 February 2024 Lourda Shaheen (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor in proceedings M1-W7816/23. The medical dispute was assessed by Douglas Andrews, a Medical Assessor, who issued an amended Medical Assessment Certificate (MAC) on 15 January 2024.
On 14 March 2024 Maxitrans Services Pty Ltd (the respondent) lodged, after directions were made by the delegate in view of the matters raised in their notice of opposition filed in
M1-W7816/23, an Application to Appeal Against the Decision of a Medical Assessor in proceedings M2-W7816/23.The appellant and the respondent rely on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 delegate has dealt with any applications for extensions of time. The delegate has directed that the appeal in M1-W7816/23 and M2-W7816/23 be determined concurrently.
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 in both M1 & M2 -W7816/23. For convenience the worker (the appellant in M1-W7816/23) will be referred to as the appellant throughout and the employer (the appellant in M2-W7816/23) will be referred to as the respondent throughout.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the appeal panel could not find error and absent a finding of error the appeal panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions in each of M1-W7816/23 and M2-W7816/23. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred by the Commission to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·the degree of permanent impairment of the worker as a result of an injury (s319(c))
·whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
·whether impairment is permanent (s319(f))
·whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
·Date of injury: 5 February 2018
·Body parts/systems referred: Psychiatric/psychological
·Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric | 5 February 2018 | Chap 11, p 54-60 | n/a | 15% | 1/10 | 14% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
The assessment of impairment was based on his assessment under the PIRS as follows:
Table 11.8: PIRS Rating Form
| Name | Lourda Shaheen | Claim reference number | W7816/23 |
| DOB | XXXX | Age at time of injury | 42 |
| Date of Injury | 5 February 2018 | Occupation at time of injury | Area sales manager |
| Date of Assessment | 10 January 2024 | Marital Status before injury | Divorced |
| Psychiatric diagnoses | Persistent depressive disorder with an ongoing major depressive episode and anxious distress | ||
| Psychiatric treatment | Medication | Psychotherapy | |
| Is impairment permanent? | Yes | ||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Ms Shaheen lives independently without support. She maintains a high level of hygiene, if somewhat obsessively. Although she sometimes misses meals, she eats an adequate diet to maintain a healthy weight. She takes regular exercise. She contributes to housework and does her shopping. Her anxious, obsessive showering has led to health problems such as chronic vulvovaginal thrush. | |||||||||
| Social and recreational activities | 3 | She has a girlfriend with whom she may go for coffee once every couple of months. She goes monthly with her current boss and his children to a club where she sings for the audience. She relies on his support and encouragement. She has no other social and recreational outings. | |||||||||
| Travel | 2 | Although comfortable driving, she is anxious and prone to road rage. She independently drives locally and to familiar places, such as her place of employment at Mount Druitt. She does not travel further afield. | |||||||||
| Social functioning | 3 | She has maintained good relationships with her sons and one close friend. She is friendly with her current boss. She is guarded in her relationships, not wanting to discuss her circumstances. Since the work injury, she has had no contact with her sisters or mother. She has lost trust in other people and would not contemplate an intimate relationship. | |||||||||
| Concentration, persistence and pace | 2 | She has subjective challenges with concentration and memory but acknowledged that she could read on her phone “for a long time.” She has no projects or hobbies. She can maintain her focus while working eight-hour days twice a week. Although anxious during the interview, she showed no signs of attention or memory deficits. | |||||||||
| Employability | 3 | She works 16 hours weekly as an administrative officer, mostly from home. This job has lost responsibility, reduced intellectual demands and less stress than her previous job. She would struggle to increase her hours significantly because of the severity of her symptoms and her avoidant behaviours. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 3 | = 3 | |||||
| Aggregate Score Impairment 15 | Total | 15% | |||||||||
From the total impairment assessed of 15% WPI the Medical Assessor deducted one-tenth under s 323. There is no complaint by either party about the deduction made under s 323.
The Medical Assessor did not make any allowance for the effects of treatment and this is the subject of a complaint on appeal by the appellant.
In summary, the appellant submitted on appeal that the Medical Assessor made assessments on the basis of incorrect criteria and made demonstrable errors as follows:
(a) In his assessment of concentration, persistence and pace.
(b) By failing to allow for the effects of treatment and in so doing failing to properly consider clause 1.32 of the Guides.
In summary, the respondent submitted on appeal that the Medical Assessor made demonstrable errors as follows:
(a) In his assessment of self care and personal hygiene as a mild impairment or Class 2 when he should have assessed Class 1 (no deficit)
(b) In his assessment of social and recreational activities as a moderate impairment at Class 3 when he should have assessed Class 1 (no deficit).
The respondent submitted that there was no error in failing to allow for the effects of treatment and the criteria in the guidelines were correctly applied in the assessment of concentration, persistence md pace.
The appellant submitted that there was no error in the assessment of Class 2 for self-care and personal hygiene and Class 3 for social and recreational activities and the criteria in the guidelines were correctly applied.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor recorded a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Shaheen started work with Maxitrans on 30 January 2018 as an area sales manager on six months’ probation. From the onset, she was subject to verbal abuse, bullying and sexual harassment from a superior who was assigned to mentor her.
She suffered rapid deterioration in her mental health and left her employment on 26 March 2018. She sought support from her general practitioner and was referred to a psychologist and psychiatrist.
·Present treatment:
Treating clinicians:
ogeneral practitioner Dr Benjamin Dixon
opsychologist – nil current
opsychiatrist Dr Richa Rastogi
Psychiatric medication:
ofluoxetine 60 mg mane
Ms Shaheen had several sessions with a psychologist but found them unhelpful and has not persisted. She has a close professional relationship with Dr Rastogi.
She has not been hospitalised for her mental health condition or attended any structured mental health programs.
·Present symptoms:
Ms Shaheen described her condition as “up-and-down” with a trend toward deterioration.
She has a pervasively low mood, without diurnal variation, and is reactive to circumstances. She is often teary and has a reduced capacity to experience positive emotions. She has low self-esteem, is self-critical and often feels ashamed.
She has a high level of anxiety and finds it difficult to trust others, especially males. She described her mind as “hyperactive”.
She has significant interpersonal sensitivity with irritability and angry outbursts. She has yelled at her current boss and co-workers.
She has subjective challenges with concentration, attention and memory, saying, “Things have to be simplified [or she struggles to do them].”
She has had frequent thoughts of suicide and, on occasion, contemplated means. Her concern for her adult sons is a strong protective factor.
Sleep hygiene is poor. She goes to bed at about 10:30 PM but may lie awake until 2 AM with her mind active. When she falls asleep, her sleep is fitful, and she is bothered by nightmares. She has tried sleep aids, such as promethazine, melatonin and magnesium, without benefit.
Her appetite has been reduced, but her weight is stable at 56 kg. At 158 cm, her BMI is 22.4, in the healthy range.
She has no libido and finds the thought of intimate sexual contact repugnant.
·Details of any previous or subsequent accidents, injuries or conditions:
Ms Shaheen had a prejudicial upbringing and experienced sexual abuse within the Catholic Church as a young child. Her mother was emotionally distant.
She experienced postnatal depression following the birth of her second son, for which she had counselling and medication.
In 2012, she experienced “a bit of a breakdown” at a time of significant interpersonal stress. Her marriage had broken down, and she was caring for a high-needs son with autism.
She said, “I have always had a bit of anxiety” and recalled that she had seen psychiatrists in the past.
She described long-standing interpersonal sensitivity and difficulty trusting others. She described herself as a “people pleaser” prone to “going above and beyond” when assigned tasks.
·General health:
Ms Shaheen has several conditions made worse by anxiety: irritable bowel syndrome, bruxism, psoriasis, fibromyalgia, joint pains and adult acne.
She has chronic vulvovaginal thrush attributed to obsessive washing.
She does not smoke or drink alcohol.
·Work history, including previous work history if relevant:
Ms Shaheen was born and raised in Sydney in a catholic Lebanese family with four older sisters. She described a “hard life with no money” led by her father, a farm labourer. She believes that her mother had been abused but never spoke about it and “doesn’t know how to love.”
She completed her HSC and earned a certificate in catering at TAFE. She earned a diploma in business management at the Australian Institute of Management.
She married at 22 and divorced after 12 years of marriage. Her ex-husband had a severe gambling problem.
She had a second relationship lasting six years, marred by domestic violence. It ended with her partner threatening to kill her, and she had an apprehended domestic violence order granted.
Although Ms Shaheen lacks confidence, she takes pride in her past work achievements.
Social activities/ADL:
Ms Shaheen lives at Cronulla in an apartment with two flatmates. They interact civilly but are not friends. Ms Shaheen said she thinks she may be a “charity case” for them.
She rises at 6 AM but often returns to bed until 9:30 or 10 AM.
She dresses in clean clothes and showers 3 to 4 times daily because she feels “dirty.”
She obsessively cleans at home, trying to give herself “something to do.”
She usually doesn’t cook and eats pre-prepared salads. She shops for herself as necessary.
Before her workplace injury, she enjoyed seeing friends for coffee or dinner and occasionally went to shows. She interacted with her sisters “off and on.” She didn’t travel because she couldn’t afford to do so.
She has retained one friend, whom she talks to regularly but sees only every couple of months when they meet for an hour. Her friend lives about three hours away and has heavy family demands because she has three autistic children. She goes to a club with her boss and his children about once a month, where she may sing one or two songs. She has been a semi-professional singer but isn’t paid on these occasions.
Ms Shaheen is comfortable driving, saying, “It’s not an issue.” She travels independently locally. Her current work is at Mount Druitt, one hour and 10 minutes, but she usually works from home.
Ms Shaheen gets along well with her sons and one friend. She is estranged from her sisters and mother. Her father is deceased. She is ashamed of her circumstances and has only told her one friend the extent of her predicament.
She reads articles on her phone and listened to audiobooks until she couldn’t afford the subscription. She can read for several hours at a time. She has little interest in television and has no other projects or hobbies.
She works 16 hours over two days a week for a Mount Druitt-based company, where she does administrative work. Her work is less demanding and has less responsibility than her employment with Maxitrans.”
The Medical Assessor recorded his findings on mental state examination as follows:
“I assessed Ms Shaheen in her home using a video link; the connection quality was adequate to do a comprehensive assessment for 70 minutes.
She presented as a casually attired woman, wearing a green tank top with neat, cropped hair.
She was anxious during the interview and frequently lost composure. She tended to be intense and somewhat pressured in her style, with a tendency to be overinclusive.
Her affect was restricted, consistent with a depressed mood and congruent with the interview content.
There was no evidence of any disorder of thought-form or perception.
She gave a detailed history without evidence of memory lapses.
When asked at the end of the interview if she had anything else to add, she described her hopelessness and loss. She noted her anger that the manager who had sexually harassed her was still working for the company, even though he had acknowledged his behaviour.”
The Medical Assessor summarised the injury and his diagnosis as follows:
“summary of injuries and diagnoses:
My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
oPersistent depressive disorder with an ongoing major depressive episode and anxious distress
Ms Shaheen has had recurrent mood and anxiety problems for many years, predating her workplace injury. She had a prejudicial upbringing, was abused as a child and experienced domestic violence as an adult. Her personality style suggests interpersonal sensitivity, consistent with cluster B personality traits. Despite these mental health challenges, she was high-functioning before joining Maxitrans. Given her experiences as a child and her domestic violence relationship as an adult, she would be exquisitely sensitive to bullying and sexually inappropriate behaviour or demands from a man in a senior position in the workplace.
·consistency of presentation
I found no inconsistencies in Ms Shaheen’s presentation.”
The Medical Assessor considered that Maximum medical improvement had been reached, noting her treatment had been appropriate but her condition has not improved and is entrenched, as follows:
“Yes. Ms Shaheen has had appropriate and reasonable treatment with her psychiatrist and, earlier, her psychologist. Her condition has not improved and is entrenched and stable. The condition and associated impairment will not change substantially over the next 12 months, with or without further medical treatment.”
The Medical Assessor considered that the appellant suffered a pre-existing condition as follows:
“Yes. Ms Shaheen had a persistent depressive disorder with recurrent major depressive episodes and anxious distress.”
He went onto deduct one-tenth from the overall impairment assessed and there was no complaint from either party about the deduction made.
The Medical Assessor explained his calculation if impairment including why he did not adjust for the effects of treatment as follows:
“I have determined a 15% WPI before deducting one-tenth for the pre-existing condition, arriving at a final 14% WPI.
don’t adjust for the effect of treatment because there has not been a substantial or complete elimination of impairment with treatment.”
The failure to adjust for the effects of treatment is the subject of complaint on appeal by the appellant.
The Medical Assessor addressed the differences in opinion between his assessments and the opinions of the other experts whose reports were in evidence before him as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
Treating psychiatrist Dr Richa Rastogi, 24 September 2019, had diagnosed post-traumatic stress disorder (PTSD). On 15 June 2018, Dr Rastogi noted, “episodic depression with stressors especially tumultuous relationship breakup in conflict, previous childhood abuse and associated PTSD.” On this occasion, Dr Rastogi diagnosed a “Relapse of depressive disorder on a background of pre-existing trauma and reactive depression.”
IME psychiatrist A/Prof Michael Robertson, 27 March 2023, noted:
“This psychological injury occurs against the background of a long-standing psychological disturbance, most likely a persistent depressive disorder occurring against the background of a traumatic childhood, long-standing maladjustment in interpersonal relationships. There is evidence of problematic so-called “Cluster B” traits personality disorder. As such, this presents as a work-related exacerbation of a previous depressive illness and this is consistent with the opinion of Dr Rastogi, her treating psychiatrist.”
A/Prof Robertson diagnosed a “complex PTSD (C-PTSD)” and determined a 22% WPI (classes 3, 3, 2, 3, 3, and 4) before deducting one-tenth for the impairment associated with a pre-existing condition and adding 2% WPI for the “treatment effect”, arriving at a final 22% WPI. A/Prof Robertson had assessed a 17% WPI on 12 June 2019 and deducted one-tenth for the pre-existing condition.
Given that Ms Shaheen apparently deteriorated in function between A/Prof Roberton’s 12 June 2019 and 27 March 2023 assessments, a 2% adjustment for treatment effect is unwarranted. There has been no “apparent substantial or total elimination of the claimant’s impairment.”
IME psychiatrist Dr Ben Teoh, on 12 February 2019, diagnosed a “Chronic Adjustment Disorder with Anxious Mood.” On 5 September 2023, he recorded that “She needs assistance to deal with her son who has severe autism” and “She has been employed with The Redmond Company, in administration, a rehabilitation company. She has been struggling with her employment.” He now considered her presentation “consistent with a diagnosis of Chronic Post Traumatic Stress Disorder.” At his 8 August 2023 assessment, Dr Teoh assessed a 15% WPI (classes 2, 3, 1, 3, 3, and 3) before deducting one-tenth for the pre-existing conditions and arriving at a final 14% WPI.
Although Ms Shaheen had a prejudicial upbringing and later experienced domestic violence, there is nothing in her history that suggests that she had PTSD before her employment with Maxitrans. The events in the workplace do not meet the mandatory Criterion A for PTSD, that of “exposure to actual or threatened death, serious injury, or sexual violence….” Her symptoms can be explained by the diagnosis that has been offered without diagnosing late-onset PTSD.
A/Prof Robertson diagnosed a moderate impairment in self-care and personal hygiene, whereas Dr Teoh and I thought it mild. Dr Robertson argued:
“She states that she showers regularly (sometimes obsessively) as well as excessive cleaning. She frequently neglects her diet and is “unable to each [sic:eat] much”, often having to force herself to eat. She has experienced some nutritional deficiencies.”
Ms Shaheen lives independently without support. She has maintained a healthy weight despite skipping some meals, and there is no evidence of any nutritional deficiencies. She showers and cleans somewhat obsessively and sometimes exercises to excess. She presents herself as well-groomed at the interview. These behaviours form part of a mild impairment.
Dr Teoh found no impairment in travel, whereas A/Prof Robertson and I thought it mild. Dr Teoh stated, “She has been able to drive, but she has been feeling anxious.”
Ms Shaheen restricts her driving to routes with which she is familiar, mainly in the immediate locality. She is relatively comfortable driving but experiences anxiety. She described an episode of road rage and suggested that she feared she could become violent.
Dr Teoh and A/Prof Robertson found a moderate impairment in concentration, persistence and pace, whereas I considered her impairment mild. Dr Teoh wrote:
“She reported significant anxiety symptoms with avoidant behaviour. She has insomnia and nightmares. She said that she has lost confidence and has been worrying about her safety. She has been feeling that “everything is getting worse”, and she has been preoccupied with negative thoughts. She has obsessive fights and compulsive checking. She has been hypervigilant and easily startled. She has intrusive memories of past traumatic events.”
And A/Prof Robertson:
“She reports having ongoing difficulties with forgetfulness and inattention. She fatigues easily. She makes frequent errors at work attracting unfavourable attention from her employer.”
Dr Teoh’s statement merely reiterates her symptoms and does not speak directly to impairment in this domain. While Ms Shaheen has subjective symptoms of impaired concentration, attention and memory, she acknowledged that she could read for several hours. She also works eight-hour days, two days a week and can persist at assigned tasks and achieve the required objectives. Although she was very anxious about her interview with me, she gave a detailed history without apparent concentration, memory or cognitive difficulties.
A/Prof Robertson found a severe impairment in employability, whereas Dr Teoh and I thought it moderate. A/Prof Robertson noted:
“While she is certified fit for working 16 hours a day, she estimates that she is productive around 8 to 10 hours a day. She has difficulty increasing her work capacity due to fatigability, and a highly reactive nature of her mental state, her profoundly diminished interpersonal resilience and impaired cognitive function.”
While I presume that A/Prof Robertson meant that she was fit to work 16 hours a week (not daily), he acknowledges that she is productive for around 8 to 10 hours on the days she works. She has been unable to increase her workload beyond 16 hours a week. There is no evidence that her attendance is erratic. Although her tasks are less demanding than when she worked for Maxitrans, there is no evidence that her pace reduced. This assessment is consistent with the Guidelines, which state that for a moderate impairment, the worker:
“…cannot work at all in the same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (e.g. less stressful).”
The Appeal Panel will deal firstly with the complaints on appeal by both parties about the assessments under PIRS and will deal with them in the order they fall in Table 11.8 of the Guidelines, namely self-care and personal hygiene, social and recreational activities and concentration, persistence and pace.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4
Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5
Totally impaired: Needs assistance with basic functions, such as feeding and toileting.
The Medical Assessor rated a mild impairment at Class 2 with the following reasoning:
“Ms Shaheen lives independently without support. She maintains a high level of hygiene, if somewhat obsessively. Although she sometimes misses meals, she eats an adequate diet to maintain a healthy weight. She takes regular exercise. She contributes to housework and does her shopping. Her anxious, obsessive showering has led to health problems such as chronic vulvovaginal thrush.”
The respondent complained on appeal that a Class 1 or no deficit should have been assessed. The appellant submitted that the assessment of Class 2 was correct.
The Medical Assessor has to make an independent assessment. A/Prof Robertson assessed a Class 3 or moderate impairment and Dr Teoh had also assessed a mild impairment at Class 2. The Medical Assessor had clear regard to the opinions of the other experts and made the following comments as to why he differed in respect of the assessments for self-care and personal hygiene from A/Prof Robertson as follows:
“A/Prof Robertson diagnosed a moderate impairment in self-care and personal hygiene, whereas Dr Teoh and I thought it mild. Dr Robertson argued:
She states that she showers regularly (sometimes obsessively) as well as excessive cleaning. She frequently neglects her diet and is ‘unable to each [sic:eat] much’, often having to force herself to eat. She has experienced some nutritional deficiencies.’
Ms Shaheen lives independently without support. She has maintained a healthy weight despite skipping some meals, and there is no evidence of any nutritional deficiencies. She showers and cleans somewhat obsessively and sometimes exercises to excess. She presents herself as well-groomed at the interview. These behaviours form part of a mild impairment.”
The appellant is clearly on the history given on the day of assessment able to look after herself adequately and despite skipping some meals maintains a healthy weight. She is able to live independently and does not obtain or require regular support to do so. The panel can discern no error in the Class 2 or mild impairment rating.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5
Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Medical Assessor assessed a moderate impairment at Class 3 with the following reasoning:
“She has a girlfriend with whom she may go for coffee once every couple of months. She goes monthly with her current boss and his children to a club where she sings for the audience. She relies on his support and encouragement. She has no other social and recreational outings.”
The respondent complained on appeal that a Class 1 or no deficit should have been assessed. The appellant submitted that the assessment of Class 3 was correct.
The Appeal Panel notes that the submission by the respondent that a Class 1 should have been made is proffered despite the fact that the IME qualified to provide an opinion on behalf of the respondent Dr Teoh had also assessed a moderate impairment or Class 2. A/Prof Robertson the IME qualified to provide an opinion on behalf of the appellant had initially assessed 2 in 2019 and on further assessment, 27 March 2023, he assessed a moderate impairment or Class 3. The assessment of Class 2 has been made independently by the Medical Assessor and in the exercise of his own clinical judgment and is in accordance the correct criteria in the guidelines.
The Appeal Panel can discern no error in the rating of a mild impairment. Class 2 is the accurate rating and the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| Class 2 | Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
The Medical Assessor assessed Class 2 or mild impairment with the following reasoning:
“She has subjective challenges with concentration and memory but acknowledged that she could read on her phone “for a long time.” She has no projects or hobbies. She can maintain her focus while working eight-hour days twice a week. Although anxious during the interview, she showed no signs of attention or memory deficits.”
The appellant complained on appeal that a moderate impairment or Class 3 should have been assessed. The respondent submitted that the mild impairment assessment should be confirmed.
A/Prof Robertson and Dr Teoh had both assessed a moderate impairment. The Medical Assessor very clearly explained why his opinion differed as follows:
“Dr Teoh and A/Prof Robertson found a moderate impairment in concentration, persistence and pace, whereas I considered her impairment mild.”
Dr Teoh wrote:
“She reported significant anxiety symptoms with avoidant behaviour. She has insomnia and nightmares. She said that she has lost confidence and has been worrying about her safety. She has been feeling that “everything is getting worse”, and she has been preoccupied with negative thoughts. She has obsessive fights and compulsive checking. She has been hypervigilant and easily startled. She has intrusive memories of past traumatic events.”
And A/Prof Robertson:
“She reports having ongoing difficulties with forgetfulness and inattention. She fatigues easily. She makes frequent errors at work attracting unfavourable attention from her employer.”
Dr Teoh’s statement merely reiterates her symptoms and does not speak directly to impairment in this domain. While Ms Shaheen has subjective symptoms of impaired concentration, attention and memory, she acknowledged that she could read for several hours. She also works eight-hour days, two days a week and can persist at assigned tasks and achieve the required objectives. Although she was very anxious about her interview with me, she gave a detailed history without apparent concentration, memory or cognitive difficulties.
Assessment cannot be based on self-report alone. The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise. The Medical Assessor has done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 2 which appropriately reflects Class 2 descriptors.
This means that the classes contested by both parties have been confirmed by the Appeal and which gives a total impairment of 15% before the deduction (which is not the subject of appeal) and before an allowance for the effects of treatment.
The appellant complains on appeal that the Medical Assessor did not properly consider or apply clause 1.32 of the Guidelines and so erred in failing to make an allowance for the effects of treatment.
Clause 1.32 of the guidelines provides as follows:
“Where the effective long term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combine Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
The MAC must be read as a whole. The Medical Assessor had noted the entrenched nature of the condition despite having appropriate treatment when he was dealing with the MMI issued:
“Ms Shaheen has had appropriate and reasonable treatment with her psychiatrist and, earlier, her psychologist. Her condition has not improved and is entrenched and stable.”
When addressing the allowance for effects of treatment the Medical Assessor explains as follows:
“I have determined a 15% WPI before deducting one-tenth for the pre-existing condition, arriving at a final 14% WPI.
I don’t adjust for the effect of treatment because there has not been a substantial or complete elimination of impairment with treatment.”
When addressing the difference in expert opinion from that of A/Prof Robertson who had allowed 2% for the effects of treatment, the Medical Assessor explains as follows:
A/Prof Robertson diagnosed a “complex PTSD (C-PTSD)” and determined a 22% WPI (classes 3, 3, 2, 3, 3, and 4) before deducting one-tenth for the impairment associated with a pre-existing condition and adding 2% WPI for the “treatment effect”, arriving at a final 22% WPI. A/Prof Robertson had assessed a 17% WPI on 12 June 2019 and deducted one-tenth for the pre-existing condition.
Given that Ms Shaheen apparently deteriorated in function between A/Prof Roberton’s 12 June 2019 and 27 March 2023 assessments, a 2% adjustment for treatment effect is unwarranted. There has been no “apparent substantial or total elimination of the claimant’s impairment.”
The Appeal Panel can discern no error in the failure by the Medical Assessor to make an allowance for the effects of treatment and his approach to the matter is adequately reasoned and is in accordance and in consideration of the correct criteria in the Guidelines.
The Panel noted firstly, the claimant has had treatment appropriate for her psychiatric diagnosis, she has had long-term treatment for several years, including psychotropic medications and consultations with her psychiatrist, and these are effective treatment as supported by research evidence for her psychiatric diagnosis.
The Panel noted, there is no evidence her psychiatric impairment has been substantially or totally eliminated, comparing before and after her treatment. The evidence is she has declined over time with treatment. Therefore, the Panel has not found error in the Medical Assessor assessing there is no treatment uplift applicable.
Whilst it is not necessary to consider whether her impairment would return to a previous greater level, for completeness’ sake, the Panel noted the Medical Assessor concluded her psychological injury is entrenched and MMI has been reached, in other words, her psychological injury impairment would not change even if treatment is withdrawn as it is entrenched.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 January 2024 should be confirmed.
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