Tagg v Partelle Racing Pty Ltd
[2024] NSWPICMP 653
•13 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tagg v Partelle Racing Pty Ltd [2024] NSWPICMP 653 |
| APPELLANT: | Desiree Tagg |
| RESPONDENT: | Partelle Racing Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 13 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by concluding that the appellant’s injury that was the subject of the medical disputes referred to him to assess was a secondary psychological injury; whether MA erred by not assessing the degree of permanent impairment of the appellant from her injury; Held – Medical Appeal Panel found that it was not open to the MA to conclude that the referred injury was a secondary psychological injury; the MA erred by not assessing the degree of permanent impairment of the appellant from her psychological injury; appellant re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
Desiree Tagg, the appellant, has appealed against a medical assessment that Medical Assessor Douglas Andrews conducted of a medical dispute between the appellant and Partelle Pty Ltd, the respondent, relating to the degree of permanent impairment the appellant has from a psychological injury she suffered on 15 June 2018.
It is necessary to set out at some length the background to the appellant’s appeal so as to make clear the issues with which the Appeal Panel is dealing and, consequently, the Appeal Panel’s reasons for its decision on the appeal.
The respondent either employed or engaged the appellant to do riding work in connection with horse racing on a racecourse. On 15 June 2018 the appellant fell from a horse she was riding and suffered both a psychological injury and physical injuries.
On 22 December 2020 the appellant’s solicitors wrote to the respondent’s insurer, namely Racing NSW Insurance Fund, advising it that the appellant claimed compensation from it for permanent impairment from her physical injuries and the psychological injury she suffered in the incident on 15 June 2018. The appellant’s solicitors acknowledged in their correspondence that in accordance with s 65A(4) of the Workers Compensation Act 1987 (the 1987 Act) the appellant was not entitled to compensation for permanent impairment for both her physical injuries and her psychological injury, but was entitled to receive compensation for permanent impairment for whichever of those injuries yielded the highest amount of compensation.
The appellant’s solicitors further advised in their correspondence that, with respect to the appellant’s psychological injury, the appellant relied on an assessment Dr Ash Takyar had made of the permanent impairment of her psychiatric injury. Dr Takyar is a psychiatrist and he provided a report to the appellant’s solicitors dated 22 October 2022 in which he advised he assessed the degree of the appellant’s permanent impairment from her psychological injury is 22% whole person impairment (WPI).
With respect to her physical injuries, the appellant relied on reports of Dr James Bodel, an orthopaedic surgeon, and Dr Renata Abraszko, a neurosurgeon, in support of her claim.
Dr Bodel’s report is dated 26 June 2020 and in it he advised he assessed that due to her injury the appellant had 7% WPI relating to her cervical spine, 6% WPI relating to her left upper extremity and 1% WPI for scarring, which he noted combined to 14% WPI.
Dr Abraszko’s report is dated 11 December 2020 and in that she advised she had assessed the appellant had 20% WPI from a traumatic injury the appellant suffered on 15 June 2018. Dr Abraszko further advised that, in accordance with the Combined Values Charts detailed in the American Medical Association Guide to Evaluation of Permanent Impairment, 5th ed (AMA5), when her assessment is combined with the 14% WPI Dr Bodel assessed the appellant had from her other physical injuries, the result is 31% WPI.On 14 July 2021 the insurer wrote to the appellant’s solicitors notifying them under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that it disputed it was liable to pay the appellant compensation for permanent impairment. It advised the appellant’s solicitors this was because it considered the degree of the appellant’s permanent impairment from her injury was below the threshold of more than 10% permanent impairment required by s 66(1) of the 1987 Act for a worker to be entitled to compensation for permanent impairment. The Appeal Panel notes too that s 65A(3) of the 1987 Act requires the degree of permanent impairment of a worker from a primary psychological injury be at least 15% in order that the worker is an entitled to compensation for permanent impairment from such an injury.
The insurer advised that it relied on reports of Dr John Roberts dated 19 February 2021,
Dr Ron Granot dated 10 March 2021 and Dr Richard Powell dated 6 May 2021.Dr Granot is a neurologist who in his report advised that the appellant did not meet the criteria of paragraph 5.9 of the Guidelines to be assessed for permanent impairment from a traumatic brain injury. Dr Richard Powell is an orthopaedic surgeon and he advised in his report that he assessed the appellant had a 4% WPI from her injury.
Dr John Roberts is a psychiatrist. He advised in his report that he diagnosed the appellant’s psychological injury is a somatoform disorder and that no permanent impairment is assessable by reference to such a diagnosis.
The Appeal Panel notes that Dr Robert’s opinion, that no permanent impairment can be assessed for a somatoform disorder, is correct. That is the consequence of s 322(1) of the 1998 Act (which requires an assessment of a worker’s permanent impairment to be done in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines)), and paragraphs 11.1 and 11.4 of the Guidelines. Paragraph 11.1 of those Guidelines stipulates that psychiatric impairment is to be assessed in accordance with the criteria of Chapter 11 and paragraph 11.4, within Chapter 11, instructs that “impairment arising from any form of somatoform disorders (DSM IV TR, pp 485-511) are excluded from this chapter”.
On 1 November 2021 the appellant’s solicitors lodged with the Personal Injury Commission (Commission), on behalf of the appellant, an Application to Resolve a Dispute (ARD) seeking the Commission determine the appellant’s claim to be paid compensation by the respondent for permanent impairment from her injuries. A delegate of the President of the Commission, pursuant to s 321(2) of the 1998 Act, chose Medical Assessor Andrews, who is a psychiatrist, to assess the medical dispute relating to the appellant’s psychological injury suffered in the incident on 15 June 2018.
The delegate also chose Medical Assessor Peter Spittaler, a neurosurgeon, to assess the medical disputes relating to the appellant’s nervous system (that is her brain injury), and chose Medical Assessor Tim Anderson, an occupational physician, to assess the medical disputes relating to the appellant’s cervical spine, left upper extremity (shoulder) and scarring (TEMSKI) and also to consolidate his assessments with the assessment that Medical Assessor Spittaler made.
The delegate issued referrals to those Medical Assessors on 3 December 2021. The referral to Medical Assessor Andrews described the medical disputes referred to him in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 15 June 2018 - deemed
Body part/s referred: Psychiatric/psychological disorder
Method of assessment:Whole person impairment”
Medical Assessor Andrews issued a medical assessment certificate on 24 August 2022 (MAC) in which he certified that he did not assess the appellant’s permanent impairment from a psychological injury because he considered the appellant did not have a primary psychiatric disorder from the incident on 15 June 2018.
Medical Assessors Spittaler and Anderson also issued medical assessment certificates on 24 August 2024.
In the medical assessment certificate Medical Assessor Spittaler issued he said he was “unable to assess” the medical disputes referred to him.
In the medical assessment certificate Medical Assessor Anderson issued, he certified he assessed the degree of the appellant’s permanent impairment was 7% WPI relating to her cervical spine, 4% WPI relating to her left upper extremity (shoulder) and 1% WPI relating to scarring. Medical Assessor Anderson issued a “consolidated Medical Assessment Certificate” in which he combined those assessments to 12% WPI and noted that the medical disputes that were referred to Medical Assessor Spittaler with respect to the appellant’s nervous system was “not able to be assessed”.
On 20 September 2022 the appellant lodged an “Application to Appeal Against the Decision of a Medical Assessor” relating to both the assessments that Medical Assessor Andrews and Medical Assessor Spittaler made with respect to the medical disputes that had been respectively referred to them. A delegate of the President constituted a single Appeal Panel, pursuant to s 328(1) of the 1998 Act, to hear those appeals.
On 23 May 2023 that Appeal Panel revoked both the MAC Medical Assessor Andrews had issued and the medical assessment certificate Medical Assessor Spittaler had issued and issued new medical assessment certificates in which the Appeal Panel certified the degree of permanent impairment of the appellant relating to her nervous system from her injury on
15 June 2018 is 0% WPI and that the degree of her permanent impairment relating to the psychological injury she suffered on 15 June 2018 is 9% WPI.[1][1] Tagg v Partelle Racing Pty Ltd [2023] NSWPICMP 219 (the first Appeal Panel’s decision).
The appellant then instituted proceedings in the Supreme Court of New South Wales seeking judicial review of the first Appeal Panel’s decision, specifically seeking an order quashing that decision and an order requiring her appeal to be determined afresh by a differently constituted Appeal Panel according to law.
The matter was heard by her Honour Schmidt AJ who on 14 December 2023 made those orders.[2]
[2] Tagg v Racing New South Wales [2023] NSWSC 1547 (Tagg).
This Appeal Panel has been constituted by a delegate of the President under s 328(1) to deal with the appellant’s appeal against the medical assessment Medical Assessor Andrews conducted of the medical disputes that were referred to him. A separate Appeal Panel was constituted to deal with the appellant’s appeal against the medical assessment Medical Assessor Spittaler made in response to the medical disputes referred to him. That Appeal Panel revoked the medical assessment certificate Medical Assessor Spittaler issued and issued a new medical assessment certificate.[3]
THE MAC
[3] Tagg v Partelle Racing Pty Ltd [2024] NSWPICMP 561.
The Medical Assessor noted in the MAC that the “body parts/systems referred” to him to assess were “psychiatric/psychological”.
Medical Assessor Andrews detailed the history in the MAC relating to the occurrence of the appellant’s injury, the treatment she was currently receiving and her current symptoms, which he noted were “a complex mix”.
The Medical Assessor observed that the appellant had been diagnosed with a traumatic brain injury, post-concussion syndrome and functional neurological disorder.
Under the heading Summary in the MAC the Medical Assessor provided the following diagnoses, which he stated he made based on the criteria detailed in the Diagnostic and Statistical Manual – 5th Ed. (DSM-5) published by the American Psychiatric Association:
“Psychiatric diagnoses:
o Somatoform disorder (DSM IV TR) or somatic symptom disorder (DSM-5)
o Persistent depressive disorder with anxious distress
o ADHD a pre-existing diagnosis
Ms Tagg has total body pain, headaches, unexplained neuro-muscular problems, nonepileptic seizures and nausea.
Neurologists have diagnosed a functional neurological disorder (FND) to account for some of her symptoms; FND refers to neurological symptoms without anatomical, pathological or physiological explanation. FND symptoms are a subset of psychiatric somatoform disorder symptoms.
Despite denying depression, she has many symptoms that would fit that diagnosis, including loss of interest or pleasure in activities, weight gain, insomnia, psychomotor changes, fatigue, diminished ability to think or concentrate and thoughts of suicide.
Her depression has likely been present since 2018, warranting a diagnosis of persistent depression.
Her mood and anxiety symptoms are secondary to pain, functional neurological symptoms and physical injuries.
She does not have post-traumatic stress disorder.
It is possible that she has suffered a traumatic brain injury and has post-concussion
syndrome. These diagnoses are out of my area of expertise, and any impairment from them is excluded.
The DSM IV TR diagnosis of somatoform disorders has been replaced in the DSM-5 by the class of somatic symptom and related disorders. My diagnosis for Ms Tagg would fit either diagnostic category.
Ms Tagg has severe symptoms across several domains with significant impairment. She does not have a primary psychiatric disorder.”
The Medical Assessor, also under the heading Summary, made reference to paragraph 11.4 of the Guidelines noting that it required impairments arising from any of the somatoform disorders are excluded from Chapter 11 of the Guidelines. The Medical Assessor said that the appellant’s impairment “is due to diagnoses that must be excluded in assessing impairment from a psychiatric disorder”. He said “an assessment of impairment is unwarranted”.
At part 10b of the MAC Medical Assessor Andrews said that he had “not determined impairment as Ms Tagg does not have a primary psychiatric disorder”.
Medical Assessor Andrews also said within part 10c of the MAC that he accepted the appellant’s assertion that she has suffered a brain injury and he accepted the diagnosis that various clinicians had made of post-concussion syndrome. Medical Assessor Andrews observed that “the diagnoses of functional neurological disorder is consistent with a somatoform disorder or somatic symptom disorder”.
THE APPEAL
The appellant relies on the grounds for appeal found in s 327(3)(c) and (d) of the 1998 Act, being, respectively, that Medical Assessor Andrew’s assessment was made on the basis of incorrect criteria and that the MAC contains a demonstrable error.
The appellant’s submissions in support of her appeal were prepared by her counsel
Mr Lachlan Robison and are dated 20 September 2022. They are, in substance, that the referral to Medical Assessor Andrews required him to assess the medical disputes relating to a “psychiatric/psychological disorder” that occurred on 15 June 2018. The appellant submitted that the Medical Assessor was not required to consider whether she had a secondary psychological injury because neither she nor the respondent contended she had. The appellant submitted that the medical dispute that had been referred to Medical Assessor Andrews did not require Medical Assessor Andrews to consider whether she had a secondary psychological injury. The appellant submitted that Medical Assessor Andrews made an error by assessing a matter that had not been referred to him to assess.The respondent’s submissions, which were drafted by its solicitor and are dated
4 October 2022, are, in substance, that Medical Assessor Andrews did not make a finding that the appellant had a secondary psychological injury but rather he found that some of the appellant’s psychological symptoms are secondary to pain and neurological symptoms and physical injuries. The respondent further submitted that it was open to the Medical Assessor to make a finding that the appellant’s impairment was due to diagnoses that must be excluded in an assessment of impairment from a psychiatric disorder, and, as a consequence, it was open to Medical Assessor Andrews to find that the appellant did not have a primary psychiatric injury.
The first appeal panel’s decision
As said, the first Appeal Panel revoked the MAC. It did so because it found the MAC contained a demonstrable error. This was because it found Medical Assessor Andrews had not assessed the appellant’s permanent impairment resulting from a primary psychiatric injury.
The first Appeal, in order to be able to correct the error it found in the MAC, required the appellant to be examined by one of its members, namely Medical Assessor Michael Hong, whom the Appeal Panel notes is a psychiatrist. Medical Assessor Hong provided a report to the first Appeal Panel in which he detailed the history he obtained when examining the appellant, the appellant’s present symptoms, the appellant’s capacity in social activities and activities of daily living and his findings from his mental state examination of the appellant. Medical Assessor Hong also provided his diagnoses of the appellant’s psychiatric injuries, which was an aggravation of attention-deficit/hyperactivity disorder (ADHD) and new anxiety symptoms.
Medical Assessor Hong also advised in his report his assessment of the degree of the appellant’s permanent impairment from her psychological injury, which the Appeal Panel observes he assessed in accordance with the Psychiatric Impairment Rating Scale (PIRS) as detailed in paragraphs 11.11 and 11.12 and Tables 11.1-11.6 of the Guidelines. He detailed his ratings of the appellant’s impairment in the several PIRS categories. Based on his ratings he noted that the degree of the appellant’s permanent impairment was 9% WPI. He considered the appellant’s pre-existing ADHD comprised a proportion of the appellant’s permanent impairment from her injury and that a one-tenth deduction should be made for the proportion of the appellant’s permanent impairment that was due to this pre-existing condition. He indicated he had assumed in accordance with s 323(2) of the 1998 Act this was the deductible proportion.
Medical Assessor Hong also said in his report that the appellant had a “mild substantial elimination of impairment with treatment, and without stimulate medication her overall impairment would be greater”. As a consequence of that, he combined 1% WPI with the degree of the permanent impairment he assessed the appellant had from her injury.
The first Appeal Panel adopted the report and findings of Medical Assessor Hong. As said earlier, in the medical assessment certificate it issued relating to the degree of permanent impairment the appellant has from her psychological injury, it certified it assessed, consistent with what Medical Assessor Hong had reported to it, that the degree of permanent impairment of the appellant was 9% WPI.
Judicial review
In her application for judicial review of the first Appeal Panel’s decision, insofar as it is related to Medical Assessor Andrews’ assessment, the issue the appellant agitated was whether the first Appeal Panel erred regarding how it assessed the degree of her permanent impairment from her psychological injury, and specifically whether the first Appeal Panel provided adequate reasons for its ratings of the appellant’s impairment in the PIRS categories of self-care and personal hygiene and social and recreational activities, which Medical Assessor Hong, and consequently the first Appeal Panel, rated as Class 2 in both.[4]
[4] Tagg at [9] and [67] – [83].
Schmidt AJ held that the first Appeal Panel did fall into legal error in that it did not provide adequate explanation for its rating. Essentially, her Honour found this was because it did not adequately disclose why the appellant’s impairment due to her psychological injury fell in one class of severity and not another and why the main impediment in her functioning in self-care and personal hygiene was due to her physical injury and not her psychological injury.
To repeat, the medical assessment certificate the first Appeal Panel issued was subsequently quashed by order of Schmidt AJ.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel found, for reasons it will explain below, the MAC did contain a demonstrable error. In order to correct that error, the Appeal Panel considered it would need further clinical data and to obtain that data it needed to re-examine the appellant.
The Appeal Panel appointed Medical Assessor Nicholas Glozier, one of its members, and who is a psychiatrist, to conduct that re-examination. His report to the Appeal Panel on his examination is set out below.
The Appeal Panel also considered whether it would receive into evidence documents attached to an Application to Admit Late Documents that the appellant filed with the Commission, those documents being the clinical records that the Berkley Vale Private Hospital maintained relating to the appellant. The respondent’s solicitors initially wrote to the Commission advising that it objects to those documents being admitted into evidence but subsequently withdrew that objection. Given that there is no objection to the admission of that material, the Appeal Panel decided to receive it into evidence.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
FINDINGS AND REASONS
Paragraph 11.4 of the Guidelines includes this instruction:
“The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based.”
In compliance with that instruction, Medical Assessor Andrews diagnosed the appellant suffered from three psychiatric disorders, namely somatic symptom disorder, persistent depressive disorder with anxious distress, and ADHD. He made those diagnoses by reference to the criteria of DSM-5. Medical Assessor Andrews observed that somatic symptom disorder as classified in DRM-5 was the same as somatoform disorder, which is a diagnosis made by reference to the criteria of DSM-IV TR, which has been replaced by DSM-5.
As mentioned much earlier, paragraph 11.4 of the Guidelines instructs a Medical Assessor not to include in an assessment of the degree of permanent impairment that a worker has from psychological injury any impairment that arises from a somatoform disorder (as diagnosed in accordance with the criteria of DSM-IV TR). Medical Assessor Andrews was correct consequently not to assess any impairment that the appellant had due to that specific disorder.
Medical Assessor Andrews said that the appellant’s “mood and anxiety symptoms are secondary to pain, functional neurological symptoms and physical injuries”. What he was saying, in effect, was that he considered his diagnosis of persistent depressive disorder with anxious distress was due to the pain the appellant experienced and her functional and neurological symptoms from physical injuries. He did not assess any permanent impairment the appellant had due to that diagnosis.
It is apparent from the statements Medical Assessor Andrews made in the MAC, specifically that;
(a) that the appellant did not have “a primary psychiatric disorder”,
(b) “that her impairment is due to diagnoses as must be excluded in assessing impairment from a psychiatric disorder”, and
(c) that the appellant’s was secondary to her pain and neurological and physical symptoms,
that Medical Assessor Andrews considered the appellant’s persistent depressive disorder with anxious distress was a secondary psychological injury and that he was consequently prevented by s 65A(2) of the 1987 Act from having regard to any impairment the appellant had due to her persistent depressive disorder with anxious distress. Section 65A(2) stipulates that “in assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury”. Secondary psychological injury is defined in s 65A(5) to mean “a psychological injury to the extent that is arises as a consequence of, or secondary to, a physical injury”.
The medical disputes that were referred to the Medical Assessor to assess related to a “psychiatric/ psychological disorder”. Neither the appellant nor the respondent had contended that the psychological injury the appellant suffered in the incident on
15 June 2018 was a secondary psychological injury or that it included a component of secondary psychological injury. There was no agreement between the parties nor had there been a determination by the Commission that the appellant suffered a secondary psychological injury. It was consequently not part of the Medical Assessor’s task to make any findings or conclusions regarding whether the appellant suffered a secondary psychological injury. If there had been any dispute between the parties regarding that, then that was a matter for the Commission to determine, but to repeat there was no such dispute.[5][5] State of New South Wales (NSW Dept of Education) v Kaur [2016] NSWSC 346 at [22]-[23].
Medical Assessor Andrews, because he took the position that the appellant’s persistent depressive disorder with anxious distress was a secondary psychological injury and he was by s 65A(2) not to have regard to any impairment the appellant had from that, consequently, made an error such that the MAC contains a demonstrable error.
Medical Assessor Andrews was also wrong not to assess the impairment the appellant had from her ADHD.
As the Appeal Panel has found a demonstrable error in the MAC it must correct that error and as earlier stated, the Appeal Panel considered it required further clinical data to be able to do that and for that reason Medical Assessor Glozier examined the appellant. Medical Assessor Glozier provided the following report to the Appeal Panel:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W5515/21 |
Appellant: | Desiree Tagg |
Respondent: | Partelle Racing Pty Ltd |
Date of Determination: | 30 August 2024 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 28 August 2024 – from 8:55 -10:25. |
Ms Tagg was assessed in the presence of her husband Mick. Ms Tagg said at the outset that she had a very limited capacity for memory to focus with a ‘limited storage’ and believed she would not be able to continue for long, although managed to complete the full 90 minutes with no change in her focus and concentration over that period of time. Both she and Mick said that they felt that the doctors and particularly those IMEs for Racing NSW were ‘writing wrong things’ in their reports. They suggested the last neurologist who had seen her for the Appeal Panel wrote ‘lies and the opposite of what was said, ’e.g. that he had in fact called the receptionist to help her’. I note Dr Mellick stated that he had recorded the history in front of them.
1.The worker’s medical history, where it differs from previous records
Ms Tagg reported that she has no memory for a period of several days around the time of the injury. Her treatment is well-documented. She continues to be treated by
Dr Ramalingam, a psychiatrist at Berkeley Vale, whom she sees every four weeks or so, generally by video calls. She said he has recently introduced Sodium Valproate to dampen down her levels of arousal as he thought these may increase propensity to have seizures. They did not report any change in the frequency of these. She also continues to consult her GP. She said she was seeing a physiotherapist but not for over a year, in part because they would trigger her seizures, and in part due to insurance payment issues. She recalled her medications as follows, without resort to prompting although Mick did go and get her Webster Pack which she looked at afterwards to confirm. She reported taking Palexia 150mg SR and 50mg immediate release every morning, Maxolon 10mg, Ritalin 20mg, Sodium Valproate 400mg, Pantoprazole (she could not recall the dose) and has a 25mg Norspan patch weekly. Around lunchtime or noon she takes another 20mg of Ritalin, 10mg of Maxolon, 400mg of Sodium Valproate, as well as an occasional Panadeine Forte if her pain is bad. At night she uses 5mg of Melatonin, half a dose of Seroquel and 2mg of Clonazepam. She believed the Seroquel is 25mg. She also uses an occasional 0.5mg during the day. She later spontaneously remembered that she also takes further doses of Palexia in the middle of the day. She said she tried cannabidiol but believed this led to worsening cognitive function.She said she generally limits any activity to 10-15 minutes to reduce her chances of seizures and manage her pain.
In terms of other wellbeing activities she says that Mick does some mindful, “touching” both after her seizures and in the evening to help her. She said she would love to be able to undertake any physical activity but the most they can do is walk to the beach a few times a week which is only about 800 metres away, where she may sometimes collect shells, or sit and have a fire.
2.Additional history since the original Medical Assessment Certificate was performed
Her social situation has been radically affected since the last assessment. She and Mick reported that in the school holidays approximately a year ago (I am unclear whether this was the winter or spring break) her children went and stayed with their father in Bathurst. She said they were then ‘kidnapped,’ hidden from her, and she has had no further contact with them since that time. She said the occasional contact with her ex has been deceitful and that he owes her a lot of support. She said he has taken their phones but then contacts her, using their phones, pretending to be them but she recognises the ‘drunk and nasty messages.’ She is aggrieved because she said that she had been supporting the children such that her eldest was doing very well, being school captain, in the OC class and even in films. She described this year as being terrible at times, and she is still emotionally affected. She displayed distress and tearfulness during this time, the only time throughout the interview she displayed such a marked change in affect. She reported that she was going to go to Bathurst to try to see them in May this year but was told that he had sent them away to Canberra so they did not make the trip. This has obviously affected her significantly psychologically although has had no marked impact on her seizures, pain and much of her function, except she no longer has to undertake some of the activities that she was able to do for them. This is very telling as to how much of her impairment is derived from her pain and seizures, as in other such situations I have seen clinically the very distressing loss of children has profoundly impacted on people’s impairment. I also note that in the Appeal panel report of May 2023 it was recorded that the eldest daughter had ‘decided to move to live with her father in Bathurst’.
As a result, in May this year she and Mick downgraded to an apartment in Ettalong Beach. They live in a small unit block. When they moved there her father moved in with them for a short while but she said his behaviour became bizarre and they ‘kicked him out.’ She said she did not recognise him as he is not the person who raised her. She believes he is in now overseas but has no contact with him. She knows her mum is in the UK with her half-brother but they have not had contact for some time. She remains in contact with her sister in Newport although said she is very busy with her four girls although they talk on Messenger.
Mick reports that he is her fulltime carer and they are financially supported on a carer’s pension and Disability Support Pension. Mick says he runs the home and describes how he manages Ms Tagg and their day-to-day function to limit her pain and the frequency of her seizures.
As elsewhere, she has reported that she is in significant pain most of the time. She reports that it takes her 4-5 hours to get ready for any activity in the day, because for the first two hours she is ‘screaming in pain.’ When she wakes up she feels like her bones are snapping or breaking through her skin or that her whole body is ‘burning like lava.’ She says that being touched or bumped during this time can make this pain worse. They reported that it takes around two or three hours before her pain medications lead to some degree of control such that she can do anything. She reported that they had got up early so that she could do this assessment. With the pain medications, which she said have been similar for about 18 months or so, her pain becomes bearable. She said that as the pain is relieved, it moves further down her body such at some point in the day it is generally bearable and mainly exists ‘from the knees down’ but it is always there in her feet. She says that stimulation or stress can increase the pain and at time it is so much that she vomits.
She reported seizures which occur several times a week despite their attempts to limit them and are increased by any degree of over-stimulation or arousal. She says the seizures have a somewhat variable presentation and look like epilepsy. Generally these are associated with movement although sometimes she only feels as though she is moving on the inside. She believes she is ‘in and out of consciousness,’ and recalls 60% of what is going on. Again they are associated with significant pain with every bit of her body ‘breaking’. They can start with her right side shaking uncontrollably and Mick says her back stiffens, arches and it looks like her breath is stopping for a period of time. He will then put her down and they go through a period where he knows that she is emerging from this seizure episode where she is very thirsty, gives her some water and then she spends some time coming back to her normal level. They also reported that she has other episodes where the left side becomes paralysed, particularly the left leg, and again she may drop down. She reported this frequently occurs with the seizures but from my understanding not all the time.
There were various descriptions of her very impairing seizures and pain which I hope I have accurately recorded, and different types of neurological dysfunction reported at different times of the assessment and at times Mick said something slightly different than she did.
She reported that over-stimulation in any significant form can likely trigger both an increase in pain or these episodes. She stated she could not ‘handle movement in front of her’ and is hypersensitive to noise. She said at times she has to wear sunglasses, even indoors, because if over-stimulated she will drop and seizure. She reported that sounds from different directions, different stimuli, having to focus on multiple perceptual inputs, can all cause seizures and increase her pain. As a result they prefer not to go out and she does not go to the shops or undertake activities even though she would like to, because these all lead to over-stimulation.
A further symptom that has developed since the injury is of clumsiness. Again this was quite hard to identify exactly. She said at one stage she cannot hold a cup but then said that she can hold only one thing at a time. She walks into things, bumps herself and when helping in the kitchen, loses control of her hand. She showed me a recent small injury where she said she had caught it on the grill. As a result she only does limited help in the house and Mick does most of the home chores as well as all the cooking, because she is physically unable to do these even though she would like to.
Psychologically she says she is still somewhat emotional over the ‘kidnapping’ of her children whom she misses, but does not describe a pervasive misery or significant tearfulness. She is not anhedonic e.g. enjoying playing piano which she will do for 10 minutes or so before it becomes too difficult. She said however she only effectively ‘free-forms’ and just ‘lets her fingers go’ because she said that if she tries to read sheet music she finds the notes overwhelming and gets frustrated and may have a seizure. She enjoys it when she gets into the flow. She continues to be motivated to do things each day, often planning things, but said she gets frustrated when she is unable to execute them physically. She says she generally gets dressed and showered each day. She also enjoys her new hobby of plant identification and naturalism. She says she can become quite aroused, anxious and confused at times, the last was when Mick suggested she had spoken to him in a nasty tone, which she could not remember. Her pain rapidly escalated and she recalled being quite short of breath at the time although no other panic symptoms. She reports little appetite although has gained 20kg and obviously has an adequate calorie intake over the time. She said she enjoys meat and seafood but then says that Mick has to force-feed and I could not explain this inconsistency. She is avoidant of many situations because of the over-stimulation, pain and likelihood of having a seizure. She reports being dependent on Mick, even holding onto him when they go down to the beach or do any of their very limited activities because of her pain and physical symptoms. She reports being able to focus and concentrate on demanding tasks for only 10-15 minutes but can watch TV series. She reported they had recently just finished Animal Kingdom, however she had to control the volume button because she is intolerant of high levels of sounds and she often watches it with a subtitle. She said Mick may at times have to explain what is going on.
Her sleep patterns are dependent on what they have to do the following day. She will take her evening medications, all of which are fairly sedating, and then when these ‘sleep meds kick in,’ she falls asleep quite quickly. However she reported spending the whole evening undertaking a slow wind-down because this prevents nocturnal seizures and stimulation. She said once they switch the lights off, Mick will do some touch relaxation and she falls asleep within 30 minutes. She then wakes up depending on the alarm but if left to her own devices will sleep through until 9am-10am, gaining a normal sleep duration, possibly slightly longer, with her medications.
She drinks only rarely, smokes five cigarettes a day and does not use any illicit drugs.
In terms of functioning the couple often responded with standard catch all negative answers e.g. ‘Des never leaves the house, ‘we don’t see anyone,’ or ‘she never drives’ but these were not entirely correct given the contradictory details provided. I pointed this out to them and they acknowledged this. She takes many hours to get up in the morning, slowly getting ready and dressed, limited by her pain and how long the medications take to kick in. She will have a shower if something is on but does not do so, depending upon what they have to do. She then has several hours, most of the afternoon, before commencing the night-time routine, all of which is designed to limit her pain and seizures. Although motivated to do activities during the day, she finds these are limited. She will contribute a little to the housework but at times may injure herself. During the day she might rest at times but also has some hobbies. She described how her ‘creative self’ had come back over the years and so she now finds a number of things, seeking to fulfil her curiosity within her physical limitations.
She says she is able to listen to music ‘if played through a quality sound-system’ or listen to Mick play the guitar. She reported playing her piano, ‘I have muscle memory because I used to play in international competitions’ and she enjoys this, getting into the flow. She has reported that they have sold the saxophone. Of late she has been interested in gardening and has been taking photographs of the plants in their small garden. She has installed the iNaturalist app and uses this to ID plants – e.g. the four different types of money tree. She has been taking clippings of plants and made some ‘rosemary water’ which she hopes to give to her daughter at some stage.
She reported only eating in the evening, with again some inconsistency between saying she is forced to eat but then also enjoys certain foods, and has gained quite a bit of weight since the incident. She said this is because she used to be such ‘an elite athlete’ both as a jockey and in other sports activities over the years. Although they said they never socialise, on Monday this an old friend came around after she had texted them when she saw that their horse was running. This was the fiancée of the trainer of the horse that she fell off, and this person came around, apparently to do some paperwork although she enjoyed the visit. She remains in contact with her sister but says that most of her friends have fallen away over the years and people don’t understand her condition. Again, although they said they never leave the home, they walk down to the beach in the late afternoon and evenings a few days a week and may have a fire there. This seems somewhat inconsistent with their suggestion that she starts her wind-down and does nothing after 5:30 each evening but this may be my misunderstanding.
In the evening they watch TV shows after dinner around 8pm. Again she says she is unable to tolerate action shows or those with lots of movement, shooting or action but said she could tolerate the recent crime show Animal Kingdom because there is less violence in it than I would expect.
Although initially stating that she had not left the house for a long time she has not given up her licence. She then stated that when they moved, because she still has her car, she drove herself from the last home to the new home. She said that Mick followed her because she feared getting lost or what would happen to her physically if she had a seizure. She reported she did this successfully without a seizure. On Saturdays Mick will watch some of the races and she will watch some of these with him and although they do not follow The Form, she described that they will quite often pick horses from their years in the industry.
3.Findings on clinical examination
Ms Tagg was initially a little bit flustered at this process, explaining how she would not be able to focus but managed to do so for the full 90 minutes with recall of her medications and many details, even prior to any prompting. She became briefly tearful when relating the loss of her children but also displayed a positive affect when describing some of her hobbies and interests particularly showed no loss of self-esteem or negative cognitions about herself, describing with pride many of her prior activities, and attempts now to keep creative and interested. She was reasonably-kempt but not wearing any make-up. She has neither a pervasive low mood nor anhedonia but at times can be tearful related to her daughter’s loss. She continues to try and motivate herself within her limitations but finds that she can be fatigued through her pain/medications. She has a normal sleep duration although takes some sedating medications with no onset insomnia. She can have some occasional levels of over-arousal which may form the basis of a near-panic attack when overly-stimulated and says that she tries to limit these much of the time to prevent a full seizure. She describes still interested in creative activities but being very limited in many of these due to her intolerance of stimulation and her pain. At the end she and Mick outlined how she feels she has been accused of malingering by doctors, how people don’t understand what is going on, and if people just spent time with them, they would see how much she was affected by this pain and limiting her seizures and the impact these have on her life.
Summary
Ms Tagg has marked limitations from her pervasive pain, frequent seizures, intolerance of over-stimulation that aggravates these and a range of reported cognitive complaints arising since her fall.
She has been diagnosed with a functional neurological disorder which is classified within DSM-5 under Section F45, and she certainly meets the criteria for this with multiple symptoms of altered voluntary motor or sensory function with associated distress and impairment. These could also be coded with several domains including weakness paralysis, abnormal movements, attacks or seizures, sensory loss, special sensory symptoms, or just with mixed symptoms. As one of the somatic symptom-related disorders, this is specifically excluded from being rateable by the PIRS within Chapter 11.
Neither are we able to rate the marked impairment arising from her chronic pain and the management she does, together with Mick, to limit this and its impact on her.
In terms of other rateable psychiatric disorders, she does not have either cardinal feature required for a depressive disorder (even despite the loss of her children). She does not have negative cognitions regarding herself, continues to show interest and motivation and does not have insomnia or hypersomnia. She has an appetite sufficient that she has had significant weight gain resulting from her inactivity. She has anxiety around triggering of her symptoms and at times these may form something close to a panic attack. As such, I am of the opinion, concordant with one of the previous assessors, that she would meet the criteria for a chronic Adjustment Disorder with anxiety as the primary injury and its marked physical symptoms constitute the stressor and its consequences and have not terminated and her psychiatric symptoms alone do not meet the criteria for any other disorder. I am not persuaded that her episodes of heightened arousal and anxiety constitute a formal panic attack that would warrant the diagnosis of a Panic Disorder
The symptoms leading to impairment rateable arising from her psychiatric injury are some interpersonal anxiety (but not the avoidance attributable to fears of over-stimulation or triggering her panic), some associated tension and irritability within her relationship with Mick, some exacerbations of her pre-existing Attention Deficit Disorder and what would be some anxiety within any vocational setting.
4.Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
[IMAGE UNABLE TO RENDER]
Signed: Professor Nicholas Glozier
Date: 30 August 2024”
The Appeal Panel considers Medical Assessor Glozier’s examination of the appellant was thorough and that he obtained a detailed history relating to all relevant issues. The Appeal Panel accepts the history Medical Assessor Glozier obtained, his descriptions of the appellant’s current symptoms, his findings from his clinical examination of the appellant and the diagnoses he made.[6] Hence, the Appeal Panel finds that the appellant’s psychological injury comprises a somatic symptom disorder (which is the equivalent of a somatoform disorder as assessed by reference to the criteria of DSM IV TR), a chronic adjustment disorder with anxiety and an exacerbation of a pre-existing attention deficit disorder.
[6] Coco-Cola Euro-Pacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
Based on the impairment and the symptoms the appellant has from her adjustment disorder with anxiety and her attention deficit disorder, which are the psychiatric disorders she has that the Guidelines permit to be rated by reference to the PIRS to establish the degree of her permanent impairment from her injury, the Appeal Panel rates her impairment in the several PIRS categories as follows.
For self-care and personal hygiene the Appeal Panel rates the appellant’s impairment as Class 2. The appellant’s ADHD and anxiety impair her activity in this domain only mildly. Her ADHD and anxiety do not prevent her from living independently or being unable to look after herself adequately. The appellant, whilst reporting little appetite and being forced to eat, has in fact gained significant weight indicating an adequate nutritional intake. The support that her partner provides her with respect to her self-care and personal hygiene is due entirely to the appellant’s somatic symptom disorder and the pain from her physical injuries. It is not due to her ADHD and anxiety symptoms.
The Appeal Panel considers the appellant’s impairment in self-care and personal hygiene from her assessable diagnoses reflect a severity of impairment best described by the examples provided in Table 11.1 for a Class 2 impairment, and not those provided in Table 11.1 for a Class 3 impairment. This is because, as just said in the prior paragraph, her adjustment disorder related anxiety symptoms and ADHD result only in mild impairment so that she occasionally is unkempt or fails to manage her personal hygiene, and the support or prompting she needs to attend to her self-care and personal hygiene do not stem from her anxiety from her adjustment disorder or from her attention deficit disorder, but rather her somatic symptom disorder and pain.
With respect to social and recreational activities, the Appeal Panel rates the appellant’s impairment as Class 2, again a mild impairment. The appellant does enjoy some recreational activities on her own, such as playing piano and her new hobby of plant identification and taking clippings. She also enjoys watching TV with her partner and listening to him play the guitar. She also walks to the beach a few times a week with her partner where they collect shells and sit and have a fire. Whilst the appellant would like to engage in more social and recreational activities, it is her somatic symptom disorder, pain and seizures that prevent her from doing so, and not her symptoms from her ADHD and anxiety. That is her lack of capacity to participate in more social and recreational activities is not the result of anxiety as she experienced from her adjustment disorder or the inattention, she has from her ADHD.
In the Appeal Panel’s view the appellant’s impairment in social and recreational activities as a consequence of her anxiety and inattention correlates with a level of impairment described by the examples for a Class 2 impairment in Table 11.2 and not those for a Class 3 impairment. The appellant’s diminished ability to go out to events and her not being able to go to events without a support person or not being actively involved in events is mainly due to matters other than her anxiety and attention deficit disorder, which only results in her engaging in her usual social activities less frequently and with less enthusiasm occasionally. The need for support in these activities is due solely to her somatoform disorder, pain and other physical disorders.
The Appeal Panel rates the appellant’s impairment in travel as Class 2, again a mild impairment. The appellant has been able to drive a car within her local district on her own. That correlates with a level of impairment described by the examples from a Class 2 impairment in Table 11.3. The Appeal Panel considers that the appellant’s anxiety due to her adjustment disorder and her lack of attention due to her attention deficit disorder only mildly impede her function in travel. Her need for her partner to accompany her on walks, which is a form of travel, is a consequence of her fear of seizures. It is not the result of her adjustment disorder or attention deficit disorder, but rather again her somatic symptom disorder and pain.
The Appeal Panel rates the appellant’s impairment in social functioning as Class 2, again a mild impairment. The appellant is incredibly well supported by her partner and her relationship with other members of her family have been distant for non-injury related reasons. She still remains in contact with her sister. The appellant reported to Medical Assessor Glozier that a friend recently came to visit her and she would text people at times. The appellant further reported that she is attempting to re-contact her children and she appears to be in contact with people who provide information to her regarding this, although she was unclear regarding that in her reports to Medical Assessor Glozier. The appellant’s friends have fallen away not due to any psychiatric condition, but because she is unable to take part in social activities which is a consequence of seizure related avoidance and pain, and consequently not the result her adjustment disorder or attention deficit disorder.
In short, the appellant’s impairment in maintaining social relationships due to her anxiety associated with her adjustment disorder or inattention associated with her attention deficit disorder is at best mild, and correlates with a level of severity described by the examples for a Class 2 impairment in Table 11.4. The separation from her children is not due to her adjustment disorder or attention deficit disorder. There is no severe strain in any of her relationships as a consequence of her adjustment disorder or attention deficit disorder.
The Appeal Panel rates the appellant’s impairment in concentration, persistence and pace as Class 3. That is a moderate impairment. The appellant only has the ability to play the piano for 10 minutes. The appellant has the ability to take photos and has installed a botanical app on her phone and will watch whole TV series but may at times require things to be explained to her. There was an inconsistency between the appellant’s report of her ability to focus and recall and Medical Assessor Glozier finding that she was able to persist for the 90 minutes of this examination he conducted of her at a standard pace. In all, the Appeal Panel considers that the appellant would be unable to read more than newspaper articles and would find it difficult to follow complex instructions and do such things as type long documents or follow complex appointments. That correlates with a level of impairment and severity described by the examples for a Class 3 impairment in Table 11.5.
The Appeal Panel rates the appellant’s impairment in employability as Class 4, that is a severe impairment. The appellant has anxiety in social situations and a degree of irritability and aspects of her reported forgetfulness would, of their own, limit her to only part time work and probably variable work in an undemanding occupation. In other words, the impairment the appellant has as a consequence of her anxiety due to her adjustment disorder and her deficit in attention and her forgetfulness due to her attention deficit disorder indicates she has an impairment in employability that best correlates with a level of impairment described by the examples in Table 11.6 for a Class 4 impairment. It is the case that the appellant would in her present condition be unable to work at all, but that is a consequence of her somatic symptom disorder and her pain, clumsiness and seizure symptoms. In other words, the fact that she is totally impaired in employability as distinct from severely impaired, is due solely to her somatic symptom disorder and pain and seizures which are not assessable under Chapter 11 of the Guidelines.
The Appeal Panel’s Class ratings of the appellant’s impairment in the several PIRS categories in ascending order are: 2, 2, 2, 2, 3, 4. The medium of those scores is 2. The aggregate is 15. In accordance with Table 11.7, that correlates with an 8%WPI.
The appellant has a pre-existing attention deficit disorder. That contributes a proportion of her permanent impairment from her injury in that it affects some aspects of her self-care and personal hygiene, her concentration, persistence and pace and her capacity for employability. Her pre-existing attention deficit disorder, which was exacerbated by her injury on 15 June 2018, has resulted in her permanent impairment being worse than it would have been had she not had that pre-existing condition. Without that pre-existing condition her overall impairment would be better than what it currently is, because she would not have had an exacerbation of that disorder and the disorder would obviously not impair her at all. Consequently her pre-existing does contribute a proportion of her permanent impairment from her injury. It is impossible to determine with any precision what proportion the pre-existing component of her attention deficit disorder contributes to her permanent impairment and, because of that, the Appeal Panel assumes it is 10% in accordance with s 323(2), which assumption is not at odds with the evidence. Consequently, the Appeal Panel makes a deduction of 10% in accordance with s 323(1) to the permanent impairment it has assessed the appellant has by reference to the PIRS categories.
The Appeal Panel considers that paragraph 1.32 of the Guidelines is not engaged in this case. This is because the treatment the appellant has received for her psychiatric injury has not been effective. It is also clear that there has been no substantial elimination of her symptoms or impairment related to her adjustment disorder or ADHD.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 August 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5515/21 |
Applicant: | Desiree Tagg |
Respondent: | Partelle Racing Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Douglas Andrews 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) |
| Psychological/psychiatric disorder | 15/06/2018 | Chapter 11 | - | 8% | 1/10 | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
4
0