Shore v LiveBetter Disability Services Ltd
[2024] NSWPICMP 517
•30 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Shore v LiveBetter Disability Services Ltd [2024] NSWPICMP 517 |
| APPELLANT: | Robert Stephen Shore |
| RESPONDENT: | LiveBetter Disability Services Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 30 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the ratings of the Medical Assessor (MA) in respect of the psychiatric impairment rating scale (PIRS) in social and recreational activities and employability were wrong based on the evidence; Medical Appeal Panel considered the history obtained by the MA; Held – the Medical Appeal Panel found that the MA’s ratings involved error; appellant re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 February 2024 Robert Shore, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
24 January 2024.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):
· 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 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury due to several stressors to which he was subject in his employment with LiveBetter Disability Services Ltd. His injury is deemed to have happened on 26 October 2020.
The appellant claimed he had a permanent impairment from that injury and sought compensation from the respondent for that permanent impairment pursuant to s 66 of the Workers CompensationAct 1987 (the 1987 Act). He relied on a report of psychiatrist
Dr Andrew Frukacz dated 8 May 2023, who assessed the degree of his permanent impairment from his injury was of the order of 16% whole person impairment (WPI).The respondent denied it was liable to pay compensation to the appellant for that permanent impairment. It considered the degree of his permanent impairment did not exceed the threshold of at least 15% stipulated by s 65A(3) of the 1987 Act for a worker to be entitled to compensation for permanent impairment. The respondent relied on a report dated
18 August 2023 that psychiatrist Dr Yajueendra Bisht prepared for the respondent’s solicitors, wherein he advised he assessed the degree of the appellant’s permanent impairment from his injury was 6% WPI.On 28 September 2023 the appellant’s solicitors lodged with the Personal Injury Commission (Commission) on behalf of the appellant an Application to Resolve a Dispute seeking determination by the Commission of the appellant’s claim for compensation for permanent impairment. On 27 October 2023 a delegate of the President of the Commission issued a referral to the Medical Assessor to assess the medical dispute between the parties relating to the degree of the appellant’s permanent impairment from his injury.
The Medical Assessor examined the appellant on 23 November 2023 by video so as to assess the medical dispute referred to her. It is apparent from the MAC that, in accordance with the instructions contained in paragraphs 11.11 and 11.12 of the Guidelines, she assessed the degree of the appellant’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS). She rated the appellant’s impairment in self-care and personal hygiene as Class 2, in social and recreational activities as Class 2, in travel as Class 2, in social functioning as Class 2, in concentration, persistence and pace as Class 3 and in employability as Class 3. She noted that the median of her class scores is 2 and that the aggregate of her scores is 14, which, in accordance with Table 11.7 of the Guidelines, converts to 7% WPI.
She identified that the appellant had pre-existing illnesses of post-traumatic stress disorder, major depressive disorder and alcohol use disorder which she considered directly contribute to the appellant’s current symptomology. She made a deduction on account of that under s 323(1) of 10%, which she had assumed to be the deductible portion in accordance with s 323(2). Consequently, she assessed, and certified, that the degree of the appellant’s permanent impairment from his injury was 6% WPI.
In his appeal against the medical assessment the appellant has challenged the Medical Assessor’s rating of his impairment in social and recreational activities and in employability. The reasons the Medical Assessor provided within the PIRS rating form for rating the appellant’s impairment in social and recreational activities as Class 2 are:
“He reported that he used to enjoy old vintage cars but he has not touched them and has not worked on them. He has stopped playing touch football and tennis. He earlier used to go out frequently with his mates. His wife now actively organises the get-togethers and that is where he meets his friends and mates and is able to attend social gatherings with them. He is able to leave his house to see his Psychologist, GP and Psychiatrist.”
Within the body of the MAC the Medical Assessor also noted that the appellant had reported that he has poor motivation to engage in the recreational activities in which he previously participated. The Medical Assessor also noted that the appellant has stopped engaging in a lot of activities with his children.
Further, the Medical Assessor noted that Dr Frukacz had assessed the appellant’s impairment in social and recreational activities as moderate, that is Class 3. With respect to that she commented that the appellant reported to her that he is able to socialise with his friends when his wife organises get-togethers and has been able to enjoy the company of his friends at home. She further noted that the appellant has occasionally been able to go out to events but does not now play touch football.
The Medical Assessor also noted that Dr Bisht had rated the appellant’s impairment in social and recreational activities as moderate and with respect to that she again commented that the appellant was able to socialise with friends when his wife organises get-togethers. She noted that based on that she considered the appellant had a mild impairment.
The Medical Assessor provided the following reasons in the PIRS rating form for assessing the appellant’s impairment in employability as Class 3:
“Based on the functioning in various PIRS categories and current symptomatology, Mr Shore cannot work at all in the same position. He can perform less than 20 hours per week with a different employer which requires less skill and is less stressful to him.”
The Medical Assessor again compared her rating of the appellant’s impairment in employability with the rating Dr Frukacz made, which was severe, that is Class 4. She said that “based on the functioning and other previous categories including the current symptomology and Mr Shore’s plan, I believe that Mr Shore has only moderate impairment and he can work less than 20 hours in a different position”.
The plan to which the Medical Assessor referred was the appellant’s plan to work three hours a day and three days a week in a different industry.
The symptoms the appellant experiences that the Medical Assessor recorded in the MAC included the appellant generally having a low mood that often fluctuates with his becoming irritable easily. They also included that the appellant has low energy levels and that he feels he has trust issues working with others.
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 the appellant should undergo a further medical examination. This is because the Appeal Panel found that the MAC contained demonstrable errors. The Appeal Panel’s reasons for its finding are explained below. Because the Appeal Panel found errors, it consequently needed to correct the errors. The Appeal Panel considered that to obtain the necessary clinical data to be able to do this it was necessary for it to re-examine the appellant.
The Appeal Panel appointed Medical Assessor Nicholas Glozier, one of its members, to conduct that examination. He did so on 24 July 2024 and has provided his report on his examination to the Appeal Panel, which is set out below.
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.
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 Medical Assessor erred by rating his impairment in social and recreational activities as Class 2. The appellant submitted that the correct rating is Class 3. The appellant submitted that he has a “demotivation” to engage in social and recreational activities and only engages when prompted and when accompanied. The appellant submitted there was no history of his having “independent functioning as indicated by a Class 2 classification”.
The appellant submitted that the Medical Assessor erred by rating his impairment in employability as Class 3. The appellant submitted that it ought to be rated as Class 4. The appellant submitted that his having a plan to work three hours a day three days a week “in the abstract” is not evidence of a capacity to work less than 20 hours a week. The appellant submitted that a Class 4 rating in employability “fits much more comfortably with the history the MA recorded”. The appellant also referred to a statement dated 28 September 2023 that his partner signed in which she noted that the appellant had not been working notwithstanding her suggestions to him regarding employment opportunities.
In reply, the respondent submitted that the Medical Assessor’s rating of the appellant’s impairment in social and recreational activities was open to her and that the Appeal Panel should not disturb her finding. The respondent referred to various parts of the evidence, including the history the Medical Assessor recorded relating to the appellant making an effort to take his dogs out for a walk. The respondent also referred to entries in the medical records of his treating psychiatrist from 2022 indicating that the appellant is able to travel independently, that he was focused on his children and his duties with them, that he was doing some work at his parent’s place, and that he was engaging in some “greater social functions”.
The respondent submitted that “the majority of medical opinions support the appellant is able to work 20 hours per week with a different employer”, and that this correlates with a Class 3 rating. The respondent referred to a report of the appellant’s treating psychiatrist dated
13 May 2022 which indicated that the appellant had completed a basic safety course. The respondent highlighted that Dr Bisht rated his impairment in employability as Class 3.
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.
The examples provided in Table 11.2 of the Guidelines for a Class 2 and Class 3 impairment in social and recreational activities are:
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.
The history the Medical Assessor recorded indicates that the only social or recreational activities in which the appellant currently participates are those organised by his wife. The implication is that his wife attends those events with him. That is, she acts as a support person for the appellant. That indicates a severity of impairment in social activities, in the Appeal Panel’s view, that is more than mild. It suggests an impairment more in line with the descriptors provided for a Class 3 impairment.
Given that, the Appeal Panel considers that the Medical Assessor erred by rating the appellant’s impairment in social and recreational activities as Class 2.
The Appeal Panel agrees with the appellant’s submission that his having a plan to work three hours a day three days a week in a different industry to that in which he was engaged when working for the respondent, does not of itself substantiate that he can do that.
The evidence of the appellant’s partner is that as at 28 September 2023 the appellant was not then in employment.
The Appeal Panel also observes that the most recent report of his treating psychiatrist that is in evidence is dated 5 July 2022 and within that his psychiatrist said that he would be reluctant from a clinical perspective to certify that the appellant had a capacity to work six hours a day for three days a week. He said that “I have re-issued a Certificate of Capacity today for a further 3-month period, this remains at 3 hours each day, 3 days/week”.
The Medical Assessor reasoned that because of the appellant’s functioning in the other PIRS categories because of his current symptomology, the appellant “can perform less than 20 hours per week with a different employer which requires less skill and is less stressful to him”.
Regarding the Medical Assessor’s ratings of the appellant’s functioning in the other PIRS categories, the Appeal Panel discerns that there is little of relevance to the appellant’s capacity in employability. The fact that the appellant changes into clean clothes every day to second day and can travel to familiar areas, has some relevance, but the weight to be placed on that, in terms of assessing what capacity the appellant has in employability is slight. The Appeal Panel considers that there is little from the appellant’s function in the other PIRS categories to support his being to work 20 hours a week. Indeed, the fact that the appellant needs the support of his wife to attend social and recreational activities and the fact that his attention in concentration is terrible supports a conclusion that his current capacity remains no better than that which his treating psychiatrist in July 2022 considered it to be, that is nine hours a week.
Given that the Appeal Panel considers that the Medical Assessor erred by rating the appellant’s impairment in employability as Class 3 because, based on the evidence, his ability to work is likely to be less than 20 hours a fortnight.
Because the Medical Assessor made errors the Appeal Panel needs to correct those errors. The Appeal Panel considered it would benefit from obtaining further clinical data regarding the appellant’s function is social and recreational activities and in employability to correct those errors and, as noted earlier, the Appeal Panel determined that it would re-examine the appellant so as to obtain that clinical data. The Appeal Panel appointed Medical Assessor Glozier to conduct that examination which he did on 24 July 2024. Immediately below is his report to the Appeal Panel on his examination of the appellant:
“Matter Number: | M1-W7320/23 |
Appellant: | Robert Stephen Shore |
Respondent: | LiveBetter Disability Services Limited |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 24 July 2024 |
1.The worker’s medical history, where it differs from previous records
Mr Shore confirmed he continues to consult his psychiatrist, Dr Duncan, on a monthly basis. He takes Duloxetine 120mg mane, Melatonin 2mg nocte, and Quetiapine 25mg nocte. He also sees his psychologist monthly to ‘blow off steam.’ There appears to be little therapeutic input in this from Mr Shore’s point of view apart from venting about his experiences which makes him feel better. He described Dr Duncan as predominantly pushing him and managing his function. He noted a number of times in the assessment how these clinicians have tried to support him to slowly improve his functioning which he has been struggling to do. He reported using no complementary medicines or vitamins, and not seeing any other specialists. In terms of his wellbeing, he says his wife manages their food but he has cut down on the chocolate milk that he was drinking a lot of, , although continues to only eat one meal a day at dinner. He has however continued his slow alcohol reduction; he now drinks four times a week – approximately a six-pack of mid-strength beer. He smokes a 50 gram bag of tobacco a week, does not use illicit or prescribed cannabinoids, microdose, use novel psychotropics or any other illicit drugs. There have been no physical health conditions.
2.Additional history since the original Medical Assessment Certificate was performed
Mr Shore lives with his wife and their three children, daughters aged 17 and 15 and a 12-year-old son still in primary school. His wife resigned some months ago and now works three days a week for the Legacy office. As such they have reduced income. He still receives some military pension. For some months now he has been working on a somewhat irregular basis through Uniting Care, doing gardening chores. He has one client for whom he does three hours a fortnight, another two hours a fortnight, and a third client for one hour a fortnight. He says this is predominantly weeding and basic maintenance as Uniting like to encourage their clients to mow their lawns. He says his wife does all of the admin and he finds that difficult. He is able to do this because he really does not have to interact with people and his Uniting Care coordinator does this. He gave me one example of where he agreed to put in a hand rail for a client as an additional job but the feedback he got from this, despite meeting the specifications, was negative which led him to be really irritable and reaffirmed his dislike and intolerance of any client-face interaction. He noted that he has been pushed to do more but said that even if he took on something like a Jim’s franchise, he would have to do quoting and other client interactions which he avoids and can be irritable with them, causing problems. He travels locally around Orange to do this work.
He goes to bed around 11pm, usually taking an hour or two to fall asleep with his medications. He then sleeps through, waking with an alarm at 7am. They get up, the kids get ready, and get themselves off to school. On the one or two days a week he will work for a couple of hours, comes home, showers, gets rid of all the mud. He then spends the rest of the day somewhat isolated and disengaged, in his shed with his dogs. He does a few basic chores around the home but little else, spending much of the time out the back in his shed on his own. He will eat dinner with the family.
He used to be really into music but does not do this anymore and gave his stereo kit away. He does not watch any TV shows, game, read, and just hangs with the dogs. He may occasionally take the kids to their sports activities but is not involved with this. For instance his wife does some of the canteen at the AFL but he has no interaction with training, coaching or any form of coordination or management. The family have not been on a holiday for over a year. He says he makes excuses not to go and his wife, who has been his ‘rock’, supports him, although notes he is difficult to live with. His wife does all the household budgeting now and manages their finances.
He described only some limited family support. Over the past 6-9 months his brother has taken him to two casual touch-footy games. He said he ‘hated’ these but went because his brother insisted and physically took him there and it was a chance for him to catch up with his brother. In June his wife organised for him to go to a trivia night. He said he went because she went with him and insisted. He found this very difficult because there were people from his old work there. The MC, who was his old boss, ignored him. Despite having simmering resentment he said he just kept quiet and managed to last until the last question, when he left immediately and waited until his wife had finished socialising before going home. He says he has not been to the pub for many years because he avoids people there; the same is also true of other local venues of a recreational nature.
He does not go to shops because of his intolerance of people. He can go to service stations however. He is not involved in any veterans’ organisations and has no ex-veteran colleagues. He says all of his work colleagues do not speak to him because he made a workers' compensation claim, and then also gave evidence in the Royal Commission into Disability about price-fixing. He only has one support outside of the family, which is of the husband of one of his wife’s friends and will tolerate this person if they come around. He will see his in-laws’ family every 2-3 weeks. He says his wife looks after her parents because her mother has Parkinson’s and he may see his family but just for a brief catch-up rather than for any particular recreational or social event. He will also chat to his elder brother occasionally, who is still in the Army. When I asked him what he enjoyed, he replied that this was being with dogs, being on his own, and in the shed, with little enjoyment of being with his family although he did acknowledge the significant support from his wife.
3.Findings on clinical examination
Mr Shore was casually-dressed and slightly unkempt. He had a somewhat nervous, apprehensive and ‘hangdog’ affect. He was, however, engaged and polite. At times his answers were somewhat faltering. He has a dysphoric, cranky, irritable mood. He described very little enjoyment in things or interest in people. He reports onset insomnia but sleeping through with a normal range duration. He is somewhat aroused and avoidant of social interactions which will increase his irritability and anger. He has not had any panics for a long time. He frequently finds himself ruminating about what happened at work and how this has led to his current mental state and financial situation. He finds this difficult to let go and acknowledged that he really just uses his therapy now for venting. I could elicit no paranoid or other untoward ideation and no abnormalities of perception.
4.Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Mr Shore continues to meet the criteria for a chronic Major Depressive Disorder. He also has some symptoms of a Post-Traumatic Stress Disorder in partial remission. He no longer has an Alcohol Use Disorder.
The categories appealed by the worker.
Mr Shore reports only very occasionally attending any recreational activity and only when prompted by either his wife or his brother, and physically taken there. These include, in the past six months, two touch-football games and one trivia night. He said he remains somewhat isolated, withdrawn, and dysphoric during them, with little engagement and in the latter left as soon as he could. He is not engaged with his children’s sports, sees no friends, has relinquished music or any other hobbies or recreational activities such as his cars. He reports undertaking no social and recreational activities on his own or under his own volition.
In terms of employability, he says he has a medical capacity to do 6-9 hours a week but has never managed this capacity throughout this year. He says as he approaches this he finds that he has to do more of the interpersonal interactions, logistics or quoting, which destabilise him. This leads to problems with other people because of his irritability, anger and low frustration tolerance. He says cannot tolerate doing any more hours or being more regular.
As such in relation to the two categories appealed by the worker, the conduct in those would appear to match that appealed by his lawyer, of a moderate impairment in social and recreational activities and a severe impairment in employability, which the Panel need to discuss.
The Appeal Panel considers that Medical Assessor Glozier’s examination of the appellant was thorough and the Appeal Panel adopts the history that Medical Assessor Glozier has detailed in his report to the Appeal Panel and his findings from his examination of the appellant.
The Appeal Panel also agrees with Medical Assessor Glozier that the appellant’s impairment in social and recreational activities is moderate, that is Class 3. The appellant’s participation in social and recreational activities is very limited, in that over the previous six months he attended three events only and then at the prompting of his wife or his brother who have taken him to these events. In other words, he has relied upon the support of his wife or brother to participate in very limited social and recreational activities. He obtains little enjoyment from his participation in the limited activities he attends. He has relinquished essentially all his pre-injury pastimes. That squarely accords with a severity of impairment described by the descriptors for a Class 3 impairment. In other words, the appellant only rarely engages in social and recreational activities and then only when prompted by family and attends with family, that is his wife or brother. His participation in the activities is particularly limited.
The Appeal Panel also agrees with Medical Assessor Glozier that the appellant’s impairment in employability is severe, that is Class 4. The appellant, as a consequence of his symptoms from his injury, being irritability, anger and low frustration tolerance, has little ability to work with others. The Appeal Panel considers that the appellant’s capacity with respect to employability, as a consequence of his psychological injury, is limited to what he presently does for the Uniting Church which is six hours a fortnight. That squarely accords with a severity of impairment described by the descriptors for a Class 4 impairment.
Consequently, upon the Appeal Panel correcting the errors in the MAC, which it does by rating the appellant’s impairment in social and recreational activities as Class 3 and his impairment in employability as Class 4, the median scores of his ratings in all PIRS becomes 3 and the aggregate becomes 16. That correlates with 17% WPI in accordance with Table 11.7 of the Guidelines.
The Appeal Panel notes that no issue was raised in the appeal against the medical assessment regarding the Medical Assessor’s finding that a proportion of the appellant’s permanent impairment is due to a pre-existing condition and the Medical Assessor assuming, in accordance with s 323(2) of the 1998 Act, that that proportion is 10% and because no issue was raised regarding this, the Appeal Panel also makes that deduction, meaning therefore that the Appeal Panel assessed the degree of the appellant’s permanent impairment from his injury as 15% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 January 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7320/23 |
Applicant: | Robert Stephen Shore |
Respondent: | LiveBetter Disability Services Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma 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) |
| Psychiatric and psychological disorders | 26/10/2020 | Chapter 11 | - | 17% | 1/10 | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
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