TAFE NSW v Patricia Pires
[2022] NSWPICMP 38
•8 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | TAFE NSW v Patricia Pires [2022] NSWPICMP 38 |
| APPELLANT: | TAFE NSW |
| RESPONDENT: | Patricia Pires |
| APPEAL PANEL: | Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 8 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim in respect of primary psychological injury caused by work events in the period 1 September 2016 and 28 September 2017; Held- Medical Assessor (MA) acted beyond the scope of his powers in that he did not limit his assessment of impairment to work events between 1 September 2016 and 28 September 2017; further error in the Medical Assessment Certificate (MAC) as the MA failed to consider whether Ms Pires had sustained a pre-existing psychiatric injury and if so, whether any impairment resulted from that pre-existing injury; further ground of appeal relating to assessment in the Psychiatric Impairment Rating Scale categories of social and recreational activities and travel; worker re-examined and MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 November 2021 TAFE NSW (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Ash Takyar, Medical Assessor (the MA) and issued on 5 October 2021.
The respondent to the appeal is Patricia Pires (Ms Pires).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· availability of additional relevant information pursuant to s 327(3)(b) of the 1998 Act;
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds 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 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Pires developed a primary psychological injury in the course of his employment with the appellant as a customer service officer.
On 18 August 2021, Ms Pires commenced proceedings in the Commission claiming 17% whole person impairment (WPI) pursuant to section 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 28 September 2017.
On 15 September 2021, a Certificate of Determination – Consent Orders was issued which Member Jacqueline Snell determined the following:
“1. The Application to Resolve a Dispute is amended at page 7 to delete pleading that the respondent was exposed to particularised behaviours during the course of her employment with the respondent between 1996 and 28 September 2017 and to plead instead that the respondent was exposed to those behaviours during the course of her employment with the respondent between 1 September 2016 and 28
September 2017.
2. The respondent’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from primary psychological injury, with deemed date of injury of 28 September 2017, as agreed, is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment.
3. …”
The matter was referred to the MA, on 17 September 2021 for assessment of WPI of
Ms Pires’ psychological injury deemed to have occurred on 28 September 2017. The Referral for Assessment of Permanent Impairment to Medical Assessor noted:“By and with the consent of the parties, the Commission determines:
The Application to Resolve a Dispute is amended at page 7 to delete pleading
that the applicant was exposed to particularised behaviours during the course of
her employment with the respondent between 1996 and 28 September 2017 and
to plead instead that the applicant was exposed to those behaviours during the
course of her employment with the respondent between 1 September 2016 and
28 September 2017.”
The MA examined Ms Pires on 22 September 2021 and assessed 19% WPI in respect of a psychological disorder. No deduction was made pursuant to s 323 of the 1998 Act. Therefore, the total WPI was assessed as 19% WPI as a result of the injury deemed to have occurred on 28 September 2017.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested that Ms Pires be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Ms Pires to undergo a further medical examination because there was insufficient evidence on which to make a determination.
EVIDENCE
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) desktop surveillance Report by Procare dated 11 October 2021.
Ms Pires seeks to admit the following evidence:
(a) further statement of Ms Pires dated 11 November 2021.
The appellant submitted that the following should be taken into account:
(a) Ms Pires’ claim for lump sum compensation was made on 12 February 2021;
(b) after receiving the report of Dr Jeff Bertucen dated 12 April 2021, the appellant determined the claim for lump sum compensation on 5 May 2021 by issuing a section 78 notice declining liability for section 66 benefits;
(c) on 18 June 2021, Ms Pires travelled to Cairns and when doing so, was “tagged by Seastar Cruises Cairns on a boat and participating in snorkelling on 25 June 2021”;
(d) at the time the claim for lump sum compensation was made, and at the time the appellant was required to determine the claim for compensation, the evidence of Ms Pires engaging in snorkelling (which was contrary to her statement at page 23 of the Application to Resolve a Dispute (ARD) where she said that she simply sat there with her husband and left out the fact that she went snorkelling) was not available to the appellant and could not have reasonably been obtained by the appellant, as Ms Pires’ snorkelling activities occurred on a date after the appellant was required to determine the claim. The appellant conceded that it could have obtained the desktop surveillance report at some time during the short window of opportunity of 25 June 2021 (when Ms Pires went on her holiday to Cairns) and 22 September 2021 (when Ms Pires attended the examination with the MA). However, it is not fair, nor reasonable, to expect the insurer to constantly or regularly monitor an injured worker’s social media accounts to ensure the veracity of their allegations where it suspects that the worker has engaged in potentially deceptive reports of psychiatric symptomology;
(e) further, the desktop surveillance report is of significant probative value in that it goes to Ms Pires’ ability to socialise and engage in recreational activities, not to mention travel, issues which are subject to an appeal by the appellant;
(f) the desktop surveillance report also demonstrated that Ms Pires has been “less than frank with the MA” in respect to her reported impairment, and
(h) the desktop surveillance report is of such probative value, that it is reasonably clear that it would change the outcome of the case and errors in the MA’s assessment of impairment in the areas of Social and Recreational Activities and Travel, and so, it is in the interests of justice that the report be provided to the Appeal Panel.
Ms Pires submitted that the evidence could have reasonably been obtained by the appellant before the medical assessment. Ms Pires noted that the ARD was lodged on 17 August 2021 and served on that day. The matter was listed for a telephone conference before member Jacqueline Snell on 15 September 2021 and the assessment with MA occurred on 22 September 2021. It was only when the MAC was issued on 5 October 2021 that the appellant sought to obtain the further desktop investigation report. The desktop investigation report (which was dated 11 October 2021) was requested the same day that the MAC was issued, that was, on 5 October 2021.
Ms Pires submitted that in view of the chronology of events, and the time in which the desktop investigation report was requested, the report reasonably been obtained by the appellant before the medical assessment. Ms Pires argued that the fresh evidence should not be admitted as it could have reasonably been obtained by the appellant before the assessment with the MA.
Ms Pires submitted that it would be a denial of procedural fairness to allow the introduction of the desktop surveillance report, as Ms Pires had not had an opportunity to address the material. Ms Pires had prepared a written statement that addressed the material but argued that a review of the material together with the statement did not cure the practical injustice caused by the admission of the fresh evidence and a re-examination would be required to properly deal with the fresh evidence if it was admitted.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156. Hoeben J held that a statutory declaration addressing the way in which an AMS carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).’
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
Ms Pires argued that the appellant was attempting to cavil with the assessment of the MA on the basis of social media posts which only showed a snapshot of Ms Pires at a moment in time. Ms Pires noted that the appellant relied on the social media posts (including photographs) to make submissions as to credit. Ms Pires referred to the decision of Sandstorm v FSS Trustee Corporation & Anor [2020] NSWSC 200. At paragraph 316 Slattery J said:
“But judging Facebook entries as an indicator of objective reality risks error. The plaintiff herself said that she puts her “best face” on when posting entries on Facebook and that the entries are not the person she always is. At one point in her evidence she gave an insightful explanation of being ‘not brave enough’ to post on Facebook what she actually looks or feels like on days that she is unable to get out of the house, or even get out of her pyjamas during the day and where she feels that the great load of decision-making and planning for the day are all too much for her.”
Ms Pires also referred to the decision in Hellessey v Metlife Insurance Limited [2017] NSWSC 1284. Robb J at paragraph 1003 wrote:
“Care should be taken by persons who enjoy good psychological health concerning the significance that they attribute to Facebook posts made by psychologically injured persons. Logically, persons who enjoy relatively normal psychological health are unlikely to understand the true psychological circumstances of the injured person. Assumptions of cause and effect that are consistent with normal psychological health may not apply to persons with psychological injuries. Not only is there a heightened risk that false conclusions will be reached, but the person with normal psychological health has no objective means of judging when and to what degree that person has made an error when the person draws conclusions based upon the Facebook posts that assume that the maker of the posts is acting in the same way as a person of good psychological health.”
Ms Pires argued that there were dangers in relying on social media posts which are a mere snapshot of a person’s life and do not show the whole story. Further, the importance of the clinical judgement of the MA in his role in assessing permanent impairment cannot be underestimated.
The MA made the following findings in his physical examination of Ms Pires:
“Ms Pires’s mood was low, her affect restricted in range, moderately anxious in quality and well communicated, teary not irritable and she was outwardly open. Her speech was of a slightly increased rate but normal volume, and her thought form was circumstantial requiring redirection on and off during the review. There were overall moderate memory and concentration difficulties with more prominent memory disruption and this appeared consistent with her report of been able to focus on reading and a television for brief periods of time and needing to reread or rewind television shows.”
Ms Pires submitted that the MA had the benefit of a 52 minute examination and made his impairment assessment following that examination as well as a comprehensive review of the documentary material that was before him. In contrast, the social media posts show one moment in time that did not reflect the full picture of any permanent impairment that Ms Pires had sustained as a result of her work-related injury.
Ms Pires submitted that the appellant should not be permitted to introduce the desktop investigation report given the potential to significant prejudice Ms Pires whilst, at the same time, having little, if any, probative value in terms of the assessment made by the MA. Further, the attacks on Ms Pires’ credit were unfounded and without merit.
Ms Pires submitted that in the event the Appeal Panel accepted the further evidence from the appellant, then the further evidence in the form of her statement should be admitted into the proceedings as well. This further statement from Ms Pires could not have reasonably been obtained before medical assessment as it is a response to the further evidence that the appellant seeks to introduce into the proceedings.
The trip to Cairns which is the subject of the desktop surveillance report by Procare dated 11 October 2021 took place in June 2021. Ms Pires commenced proceedings in the Commission on 16 August 2021. In a statement dated 16 August 2021 attached to the ARD, Ms Pires disclosed that she had been to Cairns in June 2021. The MA carried out a medical examination on 22 September 2021. The MAC was issued on 5 October 2021. The appellant instructed Procare to conduct a desktop surveillance report on 5 October 2021, that is, on the day when the MAC was issued by the Commission. The appellant lodged an Application to Appeal Against Decision of Medical Assessor on 1 November 2021 and sought to have the desktop surveillance report by Procare dated 11 October 2021 admitted as late evidence in the appeal.
The Appeal Panel was satisfied that the evidence contained in the desktop surveillance report by Procare dated 11 October 2021 could have been discovered with reasonable diligence before the examination by the MA. Procare completed the report within six days of the request by the appellant for the report and the appellant would have been aware of
Ms Pires’ June 2021 trip to Cairns when the ARD was served in August 2021. Reasonable diligence on the part of the appellant would have ensured that any desktop investigation report could have been obtained before the examination on 22 September 2021.The Appeal Panel also considered that the evidence in the desktop surveillance report by Procare dated 11 October has little, if any, probative value. The Appeal Panel considered that such limited Facebook entries are not necessarily indicators of objective reality and to admit such a report risks error. Further, the Appeal Panel concluded that the desktop surveillance report by Procare was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determined that the following evidence should not be received on the appeal:
(a) desktop surveillance report by Procare dated 11 October 2021, and
(b) further statement of Ms Pires dated 11 November 2021.
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.
Further medical examination
Professor Glozier of the Appeal Panel conducted an examination of the worker on 2 March 2022 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) the MAC is ultra vires. The parties agreed and the Commission found that
Ms Pires sustained an injury in the course of her employment with the appellant due to workplace events occurring between 1 September 2016 and 28 September 2017 with the deemed date of injury being 28 September 2017;(b) no finding was made by the Commission in respect to Ms Pires’ allegations of exposure to workplace events for the period 1996 to 31 August 2016. Those allegations were deleted from the pleadings in the ARD and therefore withdrawn from the proceedings;
(c) the appellant had placed in dispute a previous workers compensation claim resulting from a workplace psychiatric injury with a date of injury as 21 August 2012 on the basis that the injury was wholly or predominantly caused by the reasonable actions of the employer in respect of performance appraisal, discipline and/or transfer under s 11A of the 1987 Act;
(d) section 11A is a disentitling provision to which a Member of the Commission must make findings in respect to before an assessment of permanent impairment can be undertaken in respect to the injury;
(e) the appellant maintained the defence pursuant to section 11A in respect to the allegation of injury occurring on 21 August 2012 as set out in the section 74 notice. Therefore, the only ‘injury’ which the MA had power to assess permanent impairment resulting from, was the injury caused by workplace events in
Ms Pires’ employment, or the perception of workplace events during the period 1 September 2016 to 28 September 2017, consistent with the COD;(f) despite the MA only having jurisdiction to assess impairment resulting from an injury caused by work events between 1 September 2016 and 28 September 2017, he took a history relating to injury which included workplace events in 2011 and 2012. The MA also obtained a history that Ms Pires attended a psychologist, Carol Manns, for 20 sessions in the period September 2012 to 2014. This was consistent with the clinical notes of Ms Manns in which she diagnosed Ms Pires as having anxiety and depression in March 2013;
(g) under the ‘summary of injuries and diagnosis’, the MA found that Ms Pires described a deterioration in her mental state in the context work related factors from around 2012;
(h) there can be no question that Ms Pires sustained a psychiatric injury, or at the very least sustained psychological symptoms requiring extensive treatment pre-dating 1 September 2016. Any psychiatric injury, condition, abnormality or symptoms pre-dating 1 September 2016 are ‘pre-existing’;
(i) the MA’s assessment of WPI constituted an assessment of WPI which resulted from workplace events occurring from 2011 to 28 September 2017;
(j) the MA acted beyond his power in assessing impairment resulting from an injury which was not referred to him for assessment and therefore it is not binding on the parties. A fresh assessment undertaken according to law is required;
(k) the MAC contained demonstrable error. In acting beyond the scope of his powers, the MA made a further error by failing to find that Ms Pires had sustained a pre-existing injury and by incorporating the impairment resulting from a pre-existing injury into the impairment resulting from the injury referred for assessment;
(l) with only the workplace events occurring in the period 1 September 2016 to 28 September 2017 being referred to the MA for assessment of permanent impairment, the MA was bound to find that Mrs Pires had sustained a pre-existing injury and/or condition which necessitated that she seek psychological treatment by Ms Manns in approximately 2012;
(m) the pre-existing psychiatric condition did contribute to Ms Pires’ presenting impairment, and a deduction pursuant to s 323 of the 1998 Act ought to have been applied, or at the very least considered by the MA;
(n) considering that the majority of the history of injury obtained by the MA involved events pre-dating 1 September 2016 (in fact there was no history of any workplace events causing psychiatric injury obtained by the MA for the period 1 September 2016 to 28 September 2017), and if the MA had properly turned his mind to the scope of his referral, a significant deduction for pre-existing impairment would have been made. A 100% deduction for pre-existing impairment should have been applied, or at the very least, a deduction of 50% should have been applied in this case, given the severity of the pre-existing condition;
(o) in respect of the assessment of social and recreational activities, the MA rated Ms Pires as a Class 3. Before the MA was a statement from Ms Pires dated 16 August 2021 in which she reported that she went on a trip to Cairns between 18 June 2021 to 25 June 2021 with her husband and another couple. Ms Pires further stated that:
“I did not feel motivated to do anything or go anywhere. I just wanted to stay in the hotel all day’.…During the trip, all we really did was walk around and eat. We did try to go on tours, but I was not really engaging in the tour. I simply just sat there with my husband.”
(p) Ms Pires’ description of her participation in recreational activities on the Cairns trip in her statement was less than accurate and she in fact did engage in snorkelling activities;
(q) Ms Pires was less than truthful in her statement which was before the MA as to her recreational activities on the Cairns trip and this raises serious issues of credibility of Ms Pires’ reports of psychiatric impairment;
(r) her behaviour on the trip to Cairns was not the behaviour of a person who was moderately impaired in the area of social and recreational activities. If any impairment is identified in respect to this area of functioning, the appropriate rating would have been a class 2 (mild impairment rating), consistent with the findings of Dr Jeff Bertucen who obtained an accurate history including that the respondent was able to garden, exercise and engage socially;
(s) this goes beyond merely a difference in medical opinion as it gives rise to a situation whereby Ms Pires has misled the MA as to the degree of her impairment in the area of social and recreational activities, or at least significantly downplayed her ability to engage with social and recreational activities including her ability to go snorkelling/swimming;
(t) the MA failed to take a history of, consider or question Ms Pires in respect of the recent Cairns holiday. A proper enquiry by the MA and honest reporting from
Ms Pires as to her snorkelling activities and ability to go holidaying with another couple, could not have reasonably led to an assessment of Category 3;(u) accordingly, the MA has committed a demonstrable error and based the assessment on the incorrect criteria in respect to the assessment of social and recreational activities;
(v) in respect of the assessment of travel, the MA assessed a Class 2 impairment but this was based on an inaccurate history. The MA wrote: “Ms Pires is capable of travelling to her GP, to the local shops for grocery shopping and psychologist by herself but not to new places because of her symptoms”;
(w) both Ms Pires’ statement and the desktop surveillance report indicated that
Ms Pires was quite capable of travelling to new places, including interstate for the purposes of a holiday, not merely to her GP, the local shops or psychologist;(x) the MA failed to consider, or at least adequately consider Ms Pires’ documented ability to travel outside of her locality, including to northern Queensland as recently as June 2021. The accurate history taking could lead to no other conclusion than the finding that Ms Pires has no deficit in ability to travel or at least a minor deficit attributable to the normal variation in the general population given her capacity to travel to new environments far from her home;
(y) in circumstances where Ms Pires has been less than frank in respect to her participation in activities whilst on holiday, her credit must come into play and weighs against the allegation that she is mildly impaired in the area of travel;
(z) in light of the above, the MA made a demonstrable error in assessing Class 2 and/or the assessment was made upon the basis of incorrect criteria, and
(aa) the MAC should be revoked and a new MAC issued amending the ratings for social and recreational activities and travel as well as applying a 100% deduction for pre-existing injury/condition. In the alternative, the MAC should be revoked and a further medical examination undertaken by a member of the Appeal Panel, who could obtain a proper history in respect of the Cairns holiday and associated recreational activities and properly distinguish impairment resulting from pre-existing injuries / conditions and what result from the referred injury for the purposes of s 323.
Ms Pires’ submissions include the following:
(a) in respect of alleged jurisdictional error, notwithstanding the appellant’s challenge to the history taken by the MA, the MA conducted a clinical examination of
Ms Pires and obtained a history of her complaints and symptoms to form his opinion;(b) the MA was required to interview the worker and provide his assessment of WPI based upon his own findings as at the date of the examination. In Part 10 of the MAC, the MA detailed the matters that he took into account in providing his assessment. This included Ms Pires’ clinical history, mental state examination, history of Ms Pires’ functioning which was compared to her presentation and mental statement examination and history and review of the medical reports and documentation;
(c) following his examination and noting the matters listed above, the MA made the diagnosis of an adjustment disorder with mixed anxiety and depressed mood (chronic);
(d) the MA identified his path of reasoning in making his assessment of WPI and assessed Ms Pires’ WPI on the basis his clinical judgement and findings from his assessment of Ms Pires on 22 September 2021. The impairment assessment made by the MA should not be disturbed;
(e) in respect of the appellant’s submission that a significant deduction of 50-100% under s 323 of the 1998 Act should be made in this matter, the deduction proposed is excessive;
(f) the treatment that Ms Pires underwent for the management of her prior psychological condition was not indicative of the long-term severity of medical condition or the level of any permanent impairment at the time the treatment is obtained. The treatment led to a significant improvement in her condition to the point where she was about to return to full time work and had a pre-injury level of function which would be indicative of no impairment on the Psychiatric Impairment Rating Scale (PIRS);
(g) prior to the accepted injury, Ms Pires last obtained treatment from her GP for a psychological issue on 2 March 2015. There was no further treatment for
Ms Pires’ work-related psychological condition until 29 September 2017. Further, Ms Pires returned to full time work immediately prior to the accepted date of injury;(h) prior to the accepted date of injury, Ms Pires had a high level of functioning in the areas of function outlined in the PIRS. No deduction should be made on the basis that, prior to the accepted date of injury, her pre-injury level of functioning did not demonstrate any impairment;
(i) in the alternative, if the Appeal Panel is of the view that a deduction is appropriate, then the statutory s323(2) deduction of 10% should be made. This deduction is not at odds with the available evidence;
(j) in respect of the assessment of social and recreational activities, the MA took a history from Ms Pires, which was consistent with his clinical judgment and findings;
(k) Ms Pires only went to Cairns with a support person being her husband. She participated in the activities which the appellant has referred to with her husband. The circumstances surrounding the Cairns trip were consistent with a Class 3 as she “rarely goes out, only goes out when prompted by family or close friends and goes with a support person”;
(l) the MA took a history from Ms Pires that was consistent with her evidence of her disabilities and impairments. The MA’s permanent impairment assessment, when viewed fairly and as a whole to include his findings on clinical examination and his own clinical judgment, was open to the MA to make;
(m) in respect of the assessment of travel, the appellant asserted that the MA erred in assessing Ms Pires as a Class 2 impairment on the basis that she could travel to North Queensland;
(n) the descriptors under Class 2 of Table 11.3 are: “Mild impairment: can travel without support person, but only in familiar areas such as local shops, visiting a neighbour”. Even on the example given in the Guidelines, Ms Pires fits the descriptors outlined in Class 2 of Table 11.3. Table 11.3 of the guidelines specifically talked about ability to travel without a support person. The history of Ms Pires attending Cairns with her husband on a holiday was entirely consistent with a rating under Class 2 of Table 11.3. She only travelled to Queensland with her husband;
(o) the MAC issued by the MA should be confirmed including his assessment of impairment for Social and Recreational Activities and Travel, and
(p) in the alternative, any deduction that is applicable in this matter should be in the order of 10% pursuant to s 323(2) of the 1998 Act as the assumption was not at odds with the available evidence.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
On page 2 of the MAC under “history relating to the injury”, the MA wrote:
“Ms Pires spoke of the accepted injury occurring in the course of her employment with TAFE NSW. She stated that she began to be excluded and isolated in 2012 ‘that was happening nearly every day that I was at work’ and that she was ostracised by a staff member, Vinu, who joined in 2011 or 2012. She stated that there was no support from her supervisor, and she then approached her manager, who she felt was also of no help.
She noted later in the review that she took a period of leave to try and feel better but she did not disclose to her employer what the reason for this was. Ms Pires confirmed that she received a letter in July of that year for a meeting with her supervisor and manager. She stated that her manager had told her that her supervisor ‘had a list of complaints about me ... my performance at work wasn't good’. She felt this was not true. Ms Pires also reported that her colleague, Connie, whom she had been friends with until that point, stopped talking to her – ‘they told her that I was saying things about her’. She also reported that the supervisor had allegedly encouraged colleagues to make statements against her. She reported that later on Connie disclosed to her that the supervisor had indeed been doing so and she described a degree of repair in that relationship from that point.
Ms Pires recalled that she was not invited to birthday parties, and was excluded from participating in social activities. She stated that she ‘started to withdraw because people were not friendly, not treating me like everyone else - I could sense that something was happening but I didn't know what’.
She reported that when she moved to Bankstown things were improved for her, as it was ‘a better environment’ and she stated that she was adjusting to working there when she was told by her employer that there were no further duties - Ms Pires described feeling distraught on hearing that, reporting that she had wanted to return to work and she felt after being told there was no work for her she no longer felt able to viably work. Ms Pires described a worsening in her mental state after that point.
She reported that she noticed initial changes in her mental state around the time that meetings were organised – ‘the supervisor would accuse me of things and they would not let me talk and I found that very difficult- they would not let me talk, I could not give my side of the story ... 2012, 2011, I think it got really bad, I'm not sure [when]’.”
On page 4 of the MAC, under “summary of injuries and diagnoses” the MA wrote:
“Ms Patricia Pires is a 54-year-old female who was employed by TAFE NSW Miller and described a deterioration in her mental state in the context of work-related factors from around 2012. She described an occupational improvement for three months when she was moved to Bankstown TAFE at the end of 2017 but duties were withdrawn from her in early 2018 and she stated that until that point she had wanted to return to work and was hopeful that she could sustain it, but after her duties were withdrawn she described losing hope. She currently presents with symptoms that in my view reflect an adjustment disorder with mixed anxiety and depressed mood (chronic) per the DSM-5. This is consistent with the view of medicolegal psychiatrist, Dr Richa Rastogi (report of December 2020) and Dr Bertucen's original diagnosis, though in his most recent report of April 2021 he preferred a diagnosis of a major depressive disorder with anxiety”.
At 10(a) of the MAC under “Reasons for Assessment” the MA wrote:
“I have reviewed the various reports provided. The impairment I have determined at 19% is slightly more than Dr Rastogi and 10% more than Dr Bertucen in his reassessment in April 2021.
I agree with the Class 3 score in the domain of concentration, persistence and pace provided by both Dr Rastogi and Dr Bertucen in his most recent report and I agree with the Class 2 domain for travel which both psychiatrists have assessed in their reports.
…
I have determined a Class 3 score in the domain of social and recreational activities which is consistent with Dr Rastogi's view rather than the mild deficit Dr Bertucen determined at class 2 - the history reveals that Ms Pires is not able to travel to social functions by herself and she would need a support person present to attend and she would likely still be anxious and leave early. Her mental state examination and history are congruent in this regard.”
On page 7 of the MAC, the MA referred to Ms Pires’ statement of 16 August 2021. The Panel inferred that the MA was aware therefore of Ms Pires’ trip to Cairns with her husband in June 2021 even if he did not specifically refer to it in the MAC.
Discussion
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – jurisdictional error
In the Certificate of Determination – Consent Orders dated 22 February 2021 at paragraph 5 Member Jacqueline Snell ordered that the ARD be amended at page 7 to delete pleading that Ms Pires was exposed to particularised behaviours during the course of her employment with the respondent between 1996 and 28 September 2017 and to plead instead that
Ms Pires was exposed to those behaviours during the course of her employment with the respondent between 1 September 2016 and 28 September 2017.The appellant submitted that the MA’s assessment of WPI constituted an assessment of WPI which resulted from workplace events occurring from 2011 to 28 September 2017. The appellant argued that the MA acted beyond his power in assessing impairment resulting from an injury which was not referred to him for assessment and therefore the assessment was not binding on the parties. The appellant submitted that a fresh assessment undertaken according to law was required.
The Appeal Panel accepted that the referral for assessment of impairment was restricted to work events between 1 September 2016 and 28 September 2017. The MA made no reference to this particular period of Ms Pires’ employment in the MAC and included in the history relating to the injury events that took place in 2011 and 2012. The MA found that there was a deterioration in Ms Pires’ mental state in the context of work-related factors from around 2012.
The Appeal Panel agreed with the appellant that the MA had acted beyond the scope of his powers in that he did not limit his assessment of impairment to work events between 1 September 2016 and 28 September 2017. Therefore, the MAC contained a demonstrable error. The Appeal Panel also considered that there was a further error in the MAC as the MA failed to consider whether Ms Pires had sustained a pre-existing psychiatric injury and if so, whether any impairment resulted from that pre-existing injury.
Ground 2 – PIRS categories
The second ground of appeal related to the assessment made by the MA in the PIRS categories of social and recreational activities and travel.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
The MA assessed Ms Pires as Class 3 for social and recreation activities and as Class 2 for travel.
Social and recreational activities
In relation to social and recreational activities, the appellant submitted that Ms Pires had been on a trip to Cairns between 18 June 2021 and 25 June 2021 with her husband and another couple and participated in recreational activities on that trip.
The appellant submitted that Ms Pires’ behaviour on the trip to Cairns was not the behaviour of a person who was moderately impaired in the area of social and recreational activities and if any impairment was identified in respect to this area of functioning, the appropriate rating would have been a Class 2 (mild impairment rating), consistent with the findings of
Dr Jeff Bertucen.The examples in the Guidelines under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: Occasionally goes out to such events without needing a support person, but does not become actively involved (eg. dancing, cheering favourite team).
Class 3: Rarely goes 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”.
In the PIRS Rating Form, the MA wrote:
“Social and Recreational Activities - Class 3
Pre-injury, Ms Pires typically saw friends once or twice a week. She was not sure how often she sees friends outside of lockdown but explained that she used to go dancing until around three years ago and when she stopped dancing her friends in that group stopped contacting her as she withdrew away. She stated that she lost those friends and later developed new friends when she started going to a council walking group at 9:30 in the morning and was going to yoga/exercise classes run by Liverpool Council from 2019 but the personal trainer left or was no longer available and she continued only with the walks until the lockdown put an end to that. She continues with hobbies alone like gardening up to twice a week for up to several hours. She does not attend parties by herself and would need her husband present to cope - this appeared consistent with her anxiety symptoms and description and
mental state examination”.
Under “Reasons for Assessment” the MA wrote:
“I have determined a Class 3 score in the domain of social and recreational activities which is consistent with Dr Rastogi's view rather than the mild deficit Dr Bertucen determined at Class 2 - the history reveals that Ms Pires is not able to travel to social functions by herself and she would need a support person present to attend and she would likely still be anxious and leave early. Her mental state examination and history are congruent in this regard”.
The MA also referred to the statement of Ms Pires dated 16 August 2021. The Appeal Panel noted that in this statement Ms Pires disclosed that she had been to Cairns in June 2021. Although the MA did not specifically refer to the trip to Cairns in the MAC, the Appeal Panel was satisfied that he would have been aware of it.
In her statement dated 16 August 2021, Ms Pires wrote:
“108. Before the injury, I loved dancing. I went to Latin clubs to do this. I would go
at least once a week. My husband and I would go with other couples to these
dancing events.
109. Now, I don’t do any of this anymore.
110. Since the injury, I have not seen or heard from these other couples. They did
invite my husband and I to these dancing events. But I kept declining
because I simply did not want to go out anymore. Eventually, they stopped
asking us to go with them.
111. I no longer spend any time with my friends that I use to go dancing with.
112. I prefer to stay at home. I feel that it was too much effort to shower, get
changed and get ready to go out and participate in these events.
113. However, my husband will try and push me to go out and have dessert or
spend time with our other friends. I try to say no most of the time. However,
there are occasions where I do agree to go out with my husband.
114. However, my husband is only doing this because my psychologist has given
the both of us advice that I should try and do what I use to do before what
happened to me at TAFE…
128. Because of all of the stresses of my psychological condition, my husband took me on a trip to Cairns.
129. I was in Cairns between 18 June 2021 to 25 June 2021.
130. He organized for another couple to go with us as well.
131. I did not want to go. but my husband was pushing me to go. He pointed out
that he had spent a lot of time preparing it. He also pointed out to me that It
was for our wedding anniversary and that my psychologist constantly
encourages us to do things like this. I reluctantly agreed to go.
132. Before the injury, whenever my husband and I travelled, I would organise our
itinerary. 1 was very happy to do this. I liked to keep us busy.
133. However, when we went up to Cairns, he would ask me what I wanted to do
or go. I said, words to the effect, 'it's up to you, whatever you want to do'. I
did not feel motivated to do anything or go anywhere. I just wanted to stay in
the hotel all day.
134. After a couple of days, he pushed us to participate in activities. He only did
this because my psychologist was telling us that it would be helpful for my
health to do this.
135. During the trip, all we really did was walk around and eat. We did try to go on
tours, but I was not really engaging in the tour. I simply just sat there with my
husband. I didn't ask about where we were or what we were doing.
136. My husband also hired a car and drove us around. However, I didn't enjoy
that. He made an effort for us to experience Cairns. But I simply was not
enjoying the trip.
137. Any time we went anywhere, I would always go with my husband. I never
went anywhere by myself.”
Dr Rastogi, in a report dated 21 December 2020, noted that Ms Pires was reclusive and limited in interaction and lost friendships. She reported that Ms Pires struggled with interpersonal connectedness and had residual anxiety and social avoidance with poor self-esteem. Dr Rastogi rated Ms Pires as Class 3 for social and recreational activities noting:
“Moderate impairment with social isolation and does not get too involved in social activities. Does not like attending social events due to loss of interest in activities and social reclusiveness, withdrawn and stays home, inability to handle interpersonal intolerance or conflict.”
Dr Bertucen, in a report dated 19 June 2019, rated Ms Pires as Class 1 for social and recreational activities noting: “Ms Pires did not complain of any substantial disruption to her family or recreational patterns at the time of examination”.
In a report dated 5 March 2020, Dr Bertucen noted that Ms Pires had taken steps to improve her fitness and performed yoga, boxing and other activities at a local venue in Casula.
Dr Bertucen considered that Ms Pires was largely asymptomatic and functioning well in most domains.In a report dated 12 April 2021, Dr Bertucen noted that Ms Pires stated that occasionally she made excuses not to attend social events but was regularly encouraged by her psychologist. Dr Bertucen rated Ms Pires as Class 2 for social and recreational activities noting:
“Ms Pires has (until her recent chest cold) maintained a regular involvement with exercising and some social engagement with some of the group members (breakfasts, coffees, etc.). She is generally able to shop independently and is not reclusive, although occasionally triggered by encountering former colleagues. She does not initiate home entertaining such as barbeques although is happy enough to go along with them if her husband organises them. She has some involvement in gardening but at other times is quite demotivated and spends long hours watching television.”
Dr Harry Pope, general practitioner, in a report dated 8 April 2020 noted that current symptoms were blunting Ms Pires’ reactivity. He said that Ms Pires normally had a bright effervescent personality and was now cautious and submissive. He considered that there had been a significant personality change.
Dr Ian Smith, Injury Management Consultant, in a report dated 16 September 2020 noted that Ms Pires had joined a community group, when she was no longer able to see her psychologist in 2019, which involved doing yoga and exercise. He noted that due to COVID it had turned into a walking group and Ms Pires now did a one hour walk every day and otherwise spent a lot of time in the garden. He reported that Ms Pires found it hard to socialise and her husband tried to motivate her to go out.
The Appeal Panel considered whether the MA had erred in making a Class 3 rating for social and recreational activities. Dr Bertucen rated Ms Pires as Class 2 for social and recreational activities while Dr Rastogi rated Ms Pires as Class 3 for social and recreational activities. The MA acknowledged that Dr Bertucen had provided a different rating and expressed the view that the history revealed that Ms Pires was not able to travel to social functions by herself and she would need a support person present to attend and she would likely still be anxious and leave early. The MA considered that the mental state examination and history were congruent in this regard.
The MA has provided a detailed assessment which was consistent with the history obtained by Dr Rastogi and reasonably consistent with the appellant’s statement dated 16 August 2021.
Ms Pires only went on the trip to Cairns with a support person, namely, her husband. She participated in any activities with her husband. The Appeal Panel considered that the circumstances surrounding the trip to Cairns were consistent with a Class 3 rating in social and recreational activities as she only went out when prompted by her husband and then went out with him, that is, with a support person.
The MA noted that Ms Pires used to go dancing until around three years ago and when she stopped dancing, her friends in that group stopped contacting her as she withdrew away. She stated that she lost those friends and later developed new friends when she started going to a council walking group and to yoga/exercise classes run by Liverpool Council from 2019 which stopped when the trainer left. He noted that she continued only with the walks until the lockdown put an end to that and continued with hobbies alone like gardening up to twice a week for up to several hours. The MA reported that Ms Pires did not attend parties by herself and would need her husband present to cope and this was consistent with her anxiety symptoms and mental state examination. On balance, the Appeal Panel considered that the history was consistent with Class 3.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open for the MA on the evidence to make an assessment of Class 3 for social and recreational activities.
Travel
In relation to travel, the appellant submitted that the assessment of a Class 2 impairment for travel was based on an inaccurate history. The appellant argued that Ms Pires was quite capable of travelling to new places, including interstate for the purposes of a holiday, and not merely to her GP, the local shops or psychologist.
The MA assessed a Class 2 for travel noting: “Ms Pires is capable of travelling to her GP, to the local shops for grocery shopping and psychologist by herself but not to new places because of her symptoms”. The MA in commenting on the assessment by Dr Rastogi and
Dr Bertucen wrote: “… and I agree with the Class 2 domain for travel which both psychiatrists have assessed in their reports”.The appellant submitted hat the MA failed to consider, or at least adequately consider
Ms Pires’ ability to travel outside of her locality including to Cairns in June 2021.Dr Rastogi rated Ms Pires as Class 2 for travel noting “mild impairment as will go short distances and to familiar places without support, anxiety and amotivation and disinterested in going out”.
Dr Bertucen in a report dated 19 June 2019 rated Ms Pires as Class 2 for travel noting:
“Ms Pires is able to operate a motor vehicle independently, although experiences anxiety and avoidance driving near the vicinity of her former employment at Miller”.In his report dated 12 April 2021 Dr Bertucen rated Ms Pires as Class 2 for travel noting:
“Ms Pires is able to operate a motor vehicle independently, although states she is more prone to disorientation and anxiety than previously and regards herself as a less confident driver”.The examples under Table 11.3 for “travel” in the Guidelines are:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population. Can travel to new environments without supervision.
Class 2: mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
As noted above the MA referred to the statement of Ms Pires dated 16 August 2021 in which she disclosed that she had been to Cairns in June 2021. Although the MA did not specifically refer to the trip to Cairns in the MAC, the Appeal Panel was satisfied that he would have been aware of it.
The Appeal Panel was satisfied that Ms Pires can travel without a support person in a familiar area such as to the local shops and her GP. However, the Appeal Panel accepted that Ms Pires only travelled out of her local area and to Cairns in the presence of a support person, namely, her husband, and that he accompanied her on all the activities on that trip.
The history taken by the AMS was consistent with a Class 2 rating for travel. Ms Pires can travel without a support person in familiar areas but requires a support person such as her husband when travelling outside her locality.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel agreed with the assessment by the MA the MA of Class 2 for travel.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social and recreational activities and travel. The Appeal Panel was satisfied that the assessments in the PIRS categories of social and recreational activities and travel were not made on the basis of incorrect criteria.
The Appeal Panel concluded that it was necessary for Ms Pires to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Professor Glozier re-examined Ms Pires on 2 March 2022. Professor Glozier provided the following report:
“At the Panel’s initial teleconference, it was decided that the fresh evidence filed by the parties would not be received on the appeal and that there was no demonstrable error in the MAC in the PIRS categories of social and recreational activities and travel. As such, this examination focused on the respondent’s state in the period prior to the onset of the index injury i.e. from approximately late 2015 through to late 2016/2017 following her return to work after her first significant period of illness.
1. The workers medical history, where it differs from previous records
The MA did not cover this period of time in any depth, although there are medical records available. These indicate that in March 2015 Ms Pires was given a further Mental Health Care Plan by her general practitioner. She reported today that she had not made a complete recovery from her first illness. She still remained quite vulnerable and was easily triggered into panic attacks, anxiety, arousal and would take periods of time off work using her sick leave rather than workers compensation. The MHCP identified above was triggered by the letter she received from human resources of a complaint against her on what I believe to be Charles’ last day. She said he continued to have an effect on her life e.g. talking to other staff members about her. At that time she was working at Liverpool Hospital fulltime having completed her return to work processes working fulltime in her pre-existing job dealing with enquiries. She said that following this episode she broke down and for a period of time had reduced sleep, was upset, highly sensitive, aroused, and anxious, stopped cooking, found it hard to function, and her sleep was disturbed. She described a period of time where she was avoidant of work or had anticipatory anxiety and took some sick leave.
She was further distressed when she was told that she had to prove that she “could work with others” before being allowed to work at Miller TAFE and again reported that at times this would cause her symptoms to increase and she would take intermittent days off sick. As a result she was asked to undertake a data remediation project at Bankstown with a number of staff from across TAFE NSW. She enjoyed working on this project, meeting other staff and for a period of time, reported enjoying being away from stressors that she found intolerable in other settings, and would at times cause her to take time off. She was able to drive to and from Bankstown and said she enjoyed the challenge of learning how to manage data issues in the organisation.
When she left there she returned to Miller TAFE, and said she worked with a new boss, Fen, whom she admired, respected and formed a close and supportive relationship with. She was identified for further training and later when Fen went on holiday she was asked to step into her role. She noted that there were some episodes where again people would tell her about rumours or what people had said, each of which tested her resilience leading her to have anxiety and/or panic attacks and take some time off.
She reported workplace issues occurring over 2017 much as in her statement where she again felt that people were harassing her, undermining her and that she was being micromanaged. Today, she said that she felt that people were against her because she was so good at her job, went out of her way to help people and the others could not allow this. She said they may have been insecure and worked through contract or temporary staff to undermine her. She initiated her compensation claim in 2017 although was able to work for periods of time afterwards the last time being on 14 February 2019 following resurgence of her condition and ongoing difficulties at work over 2018.
2. Additional history since the original Medical Assessment Certificate was performed
Over the period prior to the new and accepted injury commencing on 1 September 2016, following her return to work from her first prolonged period of illness, Ms Pires lived at home with her husband and two children. She said that she had returned to her normal level of self-care including being very house proud and “cleaning the house from top to bottom” on Saturdays. She described no difficulties in her own care and did most of the cooking for the family. She reported that she was driving as and where she needed, rarely had to use public transport but that this was not due to any anxiety or other issues, and did not fly around that time. When she had her flare ups of anxiety she would be anxious in the car but continued to be able to drive where she needed. Socially she said she had never returned back to her social life from prior to 2010. She had lost a number of friends over the first period of illness due to her withdrawal, and her social life was much more limited. She had started to return to dancing but would not do so with the frequency, enjoyment and engagement as she did previously. She would garden and walk her dog. She described her husband and children as very supportive, as they are still, and with no difficulties in their relationships. As noted above, she reported taking significant amount of sick leave when triggered with her anxiety, arousal, avoidance etc leading her to be unable to perform her duties for short periods of time over this period. She apparently functioned well in between with the ability to make new colleagues at work and work on other projects. I note she was unable to work at specific places or with specific people who she was unable to tolerate due to their influence on her anxiety and triggering her.
3. Findings on clinical examination
Ms Pires was well-kempt although said that her husband had prompted her to have a shower this morning as she would not have been interested. She completed the RAT test without difficulty. Her husband did come with her but due to the ongoing restrictions within healthcare settings was asked to leave the waiting room whilst she was assessed. This did not unduly upset her in any way and we were able to proceed without difficulty. She was a very high context, detailed historian, often providing significant information around the point of the question, reflecting a cultural communication style. She was fragile, at times anxious, fearful and tearful but was polite and well-engaged. She reported generally being okay but with a low level of confidence and resilience such that she is easily triggered into tears, anxiety and even panic attacks. The last of these was only three days ago when the receptionist at her GPs said that when asked about her position in the queue, was just doing her job. Any confrontation or someone being assertive with her in a public environment leads her to a full blown panic attack where in this case she withdrew to the toilets and, even with the presence of her husband, decompensated. Her sleep can be of quite normal timing and duration except when placed under any stress. In the build-up to this assessment she had redeveloped a middle insomnia. With going to bed around midnight and waking at 6, this has now led to a reduced sleep duration yet does not appear to have led to any daytime functional impairment. She does nap. She still feels that people can be against her, cannot tolerate any assertive or confronting behaviour due to how this triggers the way she feels she’s been treated over many years at work leading to decompensation. She has easily triggered negative and anxious ruminations about her environment herself and finds herself worrying excessively in a number of situations, not just socially. There are no psychotic phenomena. Her anxiety led her at times to make some slight concentration and focus errors in the assessment.
Current medication: escitalopram 40mg daily, clonidine 100ug nocte although she is only intermittently compliant with this.
She has not seen her psychologist, Mr Herrera since before Christmas but was seeing him regularly routinely prior to this. This is because the insurer stopped paying and she says she is very happy now that there has been approval for a further course of treatment.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil
Summary: It would appear that even though Ms Pires had returned to work over 2015 and 2016, her condition that had arisen in the earlier part of that decade had never completely resolved. It left her with a lack of resilience leading to easily and fairly frequently triggered symptoms of anxiety, and panic, associated with periods of time off and had also left her with some residual impairment in social domains.
I was unable to identify any impairment in the domains of self-care, travel or concentration, persistence and pace over this period of time. She appeared to have no performance issues from the evidence provided and reported that she was able to function on a different project and do this well. She was also asked to act up when her manager went on holiday in late 2016, again indicating no cognitive difficulties.
However she reported that her social life had not returned back to its level prior to the first injury; that she would not go dancing in the same way, engage as well and would do so less frequently. She also reported that she had not completely got back to a favourite pastime of listening to music or other solo activities, indicative of a mild impairment. She had lost a number of friends during her first episode of illness, and had a smaller social circle although was well supported by her husband, again indicative of a mild impairment. It was apparent that she was unable to work in certain parts of TAFE NSW, work with certain people and would be readily triggered to occupationally impairing anxiety panics and avoidance at times when confronted or hearing what people allegedly had said about her, again indicative of a mild impairment.
As such, the calculable impairment from the condition (Generalised anxiety disorder/ major depressive disorder in partial remission) is 1,2,1,2,1,2. Total 9. Median 2. WPI 4%.
This given the Panel had not seen any error in the MA’s ratings, and had not admitted the new evidence, the current whole person impairment of 19% has been accepted.
This leads to a whole person impairment from the index injury of the deemed date of 28 September 2017 of 15%.”
The Appeal Panel has adopted the report and findings of Professor Glozier.
The Guidelines at Guideline 11.10 under “Pre-existing impairment” provide:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The Appeal Panel concluded that Ms Pires’ impairment from a pre-existing condition, namely, generalised anxiety disorder/major depressive disorder in partial remission, was 4% WPI. The Appeal Panel found no error in the MA’s assessment in the PIRS categories of travel and social and recreational activities and agreed with the assessment of the MA of the current level of impairment, that is, 19% WPI. Applying the provisions of Guideline 11.10 of the Guidelines, 4% WPI is deducted from 19% WPI resulting in a total assessment of 15% WPI as a result of the injury deemed to have occurred on 28 September 2017.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 July 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Ash Takyar and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Primary Psychological injury | 28 September 2017 (deemed) | Chapter 11 | Not applicable | 19% | 4% | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% WPI | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Carolyn Rimmer
Member
Professor Nicholas Glozier
Medical Assessor
Patrick Morris
Medical Assessor
8 March 2022
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