Slingsby v Allity Management Services Pty Ltd
[2023] NSWPICMP 239
•5 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Slingsby v Allity Management Services Pty Ltd [2023] NSWPICMP 239 |
| APPELLANT: | Deborah Lee Slingsby |
| RESPONDENT: | Allity Management Services Pty Ltd |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 5 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against whole person impairment (WPI) of 9% for psychological injury; whether Medical Assessor had erred by referring to an element of the appellant’s separation; whether error made in referring to a physical difficulty experienced by the appellant; whether section 323 deduction made on incorrect grounds; Held – appeal dismissed; appellant’s submissions misconceived if not mischievous: claim that no section 323 deduction possible if pre-existing condition asymptomatic patent nonsense; submissions as to Psychiatric Impairment Rating Scale (PIRS) categories opaque, difficult to follow and irrelevant. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 November 2022 Deborah Lee Slingsby, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 November 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 21 June 2022 the matter was referred to the MA following a Certificate of Determination dated 29 April 2022. The referral sought a WPI assessment caused by a psychiatric/psychological disorder deemed to have occurred on 11 December 2019.
Ms Slingsby was employed as a general service office in the laundry kitchen at Calare Nursing Home. Her duties including washing up, preparing morning tea, unloading deliveries and doing laundry service.
She was subjected to repeated harassment, intimidation and bullying by co-workers and management and unreasonable disciplinary action.
The MA assessed 9% WPI from which he took 1/10th on account of a pre-existing condition.
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.
Ms Slingsby requested a re-examination by a Panel member. The request is denied as no error was established.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which 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 appeal challenged the s 323 assessment, and the classification of two of the Permanent Impairment Rating Scale (PIRS) categories.
The MAC
The MA took a comprehensive history, and said at [7]:
“I have been requested to assess Ms Slingsby's WPI. I noted her pre-existing psychological health, and similar to the Arbitrator Member, I concluded she experienced an aggravation of a pre-existing psychological condition, and this aggravation has not ceased over time. I have conceptualized her psychological condition as a Panic disorder with depressive symptoms and agoraphobia.
I have discussed Ms Slingsby's WPI rating in relation to other reports, under 10c. I noted her physical injuries. Her physical injuries and pain are not assessable in the PIRS.”
The Member was Member Jill Toohey, who had also considered the evidence in determining liability. With regard to the MA’s explanation for his assessment of the s 323 deduction, the following is relevant.
The MA recorded Ms Slingsby’s past history as follows:
“Particular triggering event recalled at the time. She felt anxious in crowds and became avoidant. She had an EEG because there was a problem that she could not speak properly, but they never found a medical cause for her speech problem. She stated that she grew up in the Navy household, everything had to be perfect and she does not know whether this is a contributor to her anxiety when she was younger.
I asked about treatment and she said she has not had any treatment over time. Later on, she stated she had relationship problems and she did see a counsellor for a while. She also confirmed she took an antidepressant, but could not be sure when was the last time she took a psychiatric medication.
Ms Slingsby reported that she was in relationship between 2010 and 2018. She recalled that he did not like her working all the time, especially working very long hours, and subsequently he had an affair and so she left him. She stated that after they separated, they remained on good terms and even now they are still good friends. He was helping Ms Slingsby with transportation, taking her to appointments. He lives in Orange and she moved to Newcastle in August 2021. She stated since she moved, he came to pick her up a few times, even though it is a six-hour drive.”
At the templated question 8e the following appeared:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a
previous injury, pre-existing condition or abnormality?
Yes, there was a pre-existing condition, which contributes to a proportion of Ms Slingsby's loss and impairment. She has a long history of panic attacks and agoraphobia, with previous depressive symptoms. Her pre-existing psychological condition was asymptomatic, and was aggravated as a result of her employment and, with bullying and harassment. A significant portion of her current psychological symptoms and impairment is comparable to her previous symptoms and impairment, and her impairment is greater because of her past psychiatric history.”
(As written).
At 10[c] the MA noted the findings of Member Toohey, and discussed the opinions of Dr Vickery and Associate Professor (A/P) Robertson.
At [11] the MA said:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)There was a pre-existing asymptomatic condition.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Ms Slingsby's pre-existing condition contributed to her current impairment, by increasing her vulnerability to increasing her overall current impairment.
c. The extent of the deduction is difficult and/or costly to determine, so in applying the provisions of s.323(2), I assess the deductible proportion as one-tenth. This is not at odds with the available evidence.”
SUBMISSIONS
The appellant grounded her appeal on submissions that the MAC contained a demonstrable error and was infected by the application of incorrect criteria regarding the PIRS scale. We note that the “incorrect criteria” box was not ticked in the appeal application but nothing turns on that omission.
Section 323
The appellant submitted that the MA had made a demonstrable error in his application of the provisions of s 323 of the 1998 Act, as he had applied a deduction when he found that Ms Slingsby’s pre-existing psychological condition had been asymptomatic. Ms Slingsby reproduced only part of [11] of the MAC, namely [11(b)(i)], submitting that the MA’s reasoning was “simply unintelligible.” It was submitted that the MA provided “no diagnosis of the pre-existing asymptomatic condition”. Ms Slingsby argued that if the condition was asymptomatic then, “self evidently it was not productive of any impairment.”
Consideration
It is convenient to deal with this submission at once.
It can be seen that the basis of the appellant’s submission was a selectively chosen segment of [11] of the MAC. The appellant did not address any of the evidence we have reproduced above – particularly from [8e] of the MAC – which set out in the plainest terms the MA’s explanation for his assessment. Moreover, the submission that an asymptomatic pre-existing condition cannot contribute to a found impairment is patently nonsense.[1] The submissions are misguided, if not mischievous. This ground is rejected.
[1] See e.g. Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43].
The PIRS issue
The appellant compared the social functioning and concentration, persistence and pace categories of the PIRS found by the MA to that found by A/P Robertson, the medico-legal expert retained by the appellant.
Ms Slingsby submitted that the assessments of a class 2 ratings in both categories constituted a demonstrable error.
We were referred to the well-known authorities regarding the assessment of WPI in this field of medicine, and we were referred to the relevant statutory provisions and guidelines.
Social functioning
Ms Slingsby submitted that the MA had made a factual error, when he referred to Ms Slingsby’s domestic arrangements. It was submitted that his use of the expression that the appellant “left” her partner caused his rating to be “infected with demonstrable error.” The appellant relied on her statement in explaining the submission. Ms Slingsby said:[2]
“As to the comments regarding my relationship, I was having problems with my partner in 2017. Despite these problems, I attended work and do not believe my work was affected.
I separated from my partner in February 2018 as he was being unfaithful. We stayed separated for 6 months and I moved back in with him in August 2018 to see if we could make things work.
In February 2019, we decided our relationship could not work. He was not unfaithful again but by this time was getting frustrated with all the extra shifts I was working and believed he was coming second to my job. I know I was also difficult to live with during this time because of the problems I was having with Mr Davis; I found it hard to leave these issues at work. By this time, our fights were mainly over my job. I accepted our relationship breakdown. I remained living with him as a housemate in the spare room. In August 2019 I moved out into my own apartment. My ex-partner and I remain friends and he has supported me though my suspension and ongoing work difficulties. Any difficulties I was experiencing at this time with my mental health were related to my job and not the breakdown of my relationship”.
[2] Appeal papers page 17.
It was argued that the MA had “impermissibly interpolated the reason for Ms Slingsby’s separation as being the unfaithfulness of her partner, where the descriptor for class 3 only referred to ‘separation’.”
A class 3 assessment should have been made therefor.
Concentration, persistence and pace
The appellant again relied on a selectively chosen part of the MA’s reasons. She submitted that whilst the MA found she no longer read books due to reduced concentration and memory, he had made an “illogical overreach” by stating that Ms Slingsby had difficulty holding books or an iPad due to problems in her shoulders.
Ms Slingsby submitted that one could “quite easily read a book seated at a table or even in a chair, if one had the ability to concentrate.”
Accordingly the MA erred by failing to have any or proper regard to that evidence.
Respondent
We note the submissions made by the respondent and acknowledge the industry that it has shown. However, there is no need to further consider them as they are essentially incorporated in our determination.
Discussion
Ferguson v State of New South Wales[3] was one of the cases cited by the appellant for the proposition that a mere difference of opinion on a subject about which reasonable minds may differ was not a basis for appellate intervention. Something more was required, and in both challenges to the PIRS assessments the appellant was unable to point to any feature that had that quality.
[3][2017] NSWSC 887.
With regard to the appellant’s submissions that the MA erred in his assessment of the social functioning category, the logic on which they were based we find to be somewhat opaque.
In his PIRS table the MA said:[4]
“Ms Slingsby's relationship with her partner ended as he was not faithful, and they continued to have a good relationship as friends.
She is able to maintain a few long-term friendships, but they are not local and overall, she has had less contact with them.
The relationship with her general family is reasonable.”
[4] Appeal papers pages 40-41.
Table 11.4 of the Guides provide the following classifications:
“‘Mild’: existing relationship strained. Tensions arguments with partners ….”
Class 3 provides:
“Moderate: previously established relationships severely strained, evidence by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
It would seem that Ms Slingsby was suggesting that the reason for separation was relevant to this assessment. Ms Slingsby did not advance any explanation for the somewhat bold statement that by referring to the separation being caused by unfaithfulness, his assessment became “infected” with demonstrable error.
Bearing in mind that the descriptors are not criteria but are mere examples, we did not read the MAC as suggesting that Ms Slingsby had a severely strained relationship with her partner, notwithstanding the separation.
Ms Slingsby said herself that she remained friends and found her partner supportive. There was no element that would suggest that Ms Slingsby’s social functioning was such that she was threatened by domestic violence or, for that matter, that her previously established relationships were strained, let alone severely strained.
Whilst Ms Slingsby has suggested a factual inaccuracy, as the relationship rekindled itself after she first separated due to the unfaithfulness of her partner, the nature of their relationship was not such as to suggest that it was severely strained. There was no challenge to the history taken by the MA that after the appellant moved to Newcastle, her partner came to pick her up a few times from Orange, even though it was a six-hour drive. Nor was there any challenge to his reporting that her partner and she were “still good friends”.
Indeed, we found it difficult to comprehend the exact nature of the error as at [10c] of the MAC, in dealing with the other medical opinions before him, the MA said:[5]
“In terms of social functioning, Associate Professor Robertson rated 3 and noted previous relationship breakdown, and recent difficulty and lost friendships, and not being able to reconstitute social network since returning to Orange. In my assessment, I noted her partnership ended predominantly because her partner was not faithful, and after relationship ended they have remained on good terms and they are friends. She maintains contact with some long-term friends, but because they live in Queensland she generally has phone call contact. She has not really had friends while she was working at Allity or if she did, it was mostly in the context of relationship with her partner when they went to the clubs. She has reasonable relations with her family, and therefore I rated 2.”
[5] Appeal papers page 37.
The challenge to the assessment regarding social functioning is rejected therefore.
As to the challenge to the assessment regarding persistence, concentration and pace, we again had some difficulty in comprehending the appellant’s criticism.
The MA stated:[6]
“Ms Slingsby reported having reduced concentration. She is no longer reading books due to reduced concentration and memory, and her neck problem also makes it difficult to hold books.
She watches YouTube videos for hours, and plays scrabbles.”
[6] Appeal papers page 41.
Table 11.5 requires a class 2 Mild impairment as:
“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.”
Under table 11.5 class 3 Moderate employment includes:
“Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, title documents, follow a pattern for making clothes, tapestry or knitting.”
The appellant’s submission again relied only on a selective segment of the MA’s findings. Ms Slingsby acknowledged that the MA had found that she was no longer reading books due to reduced concentration and memory. Just how his observation that Ms Slingsby’s neck problem was relevant in the light of that finding was difficult to see.
The evidence as a whole has to be considered in assessing these classifications and the appellant has chosen to ignore the facts that she watched YouTube videos for hours and played scrabble, both of which activities would indicate a mild impairment, and neither of which was challenged.
We found no error in the MA’s assessment in this category.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 November 2022 should be confirmed.
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