Tagg v Partelle Racing Pty Ltd
[2023] NSWPICMP 219
•23 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tagg v Partelle Racing Pty Ltd [2023] NSWPICMP 219 |
| APPELLANT: | Desiree Tagg |
| RESPONDENT: | Racing NSW |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Michael Davies |
| DATE OF DECISION: | 23 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Fall from a horse; multiple injuries; assessment in relation to impairment from psychological injury and assessment of the nervous system the subject of appeal; appeals heard together; re-examination undertaken in respect of the psychological injury; Medical Assessment Certificate (MAC) revoked; in respect of the nervous system, the Medical Assessor was correct to hold there was no rateable impairment according to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021, but the MAC was revoked because he should have assessed 0% whole person impairment instead of stating “unable to be assessed”; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
This matter is referred to Appeal Panel by Amended Decision dated 21 December 2022 of the President’s delegate who recited that the Personal Injury Commission (Commission) appointed three Medical Assessors to assess whole person impairment resulting from injury on 15 August 2018.
Dr Tim Anderson, occupational physician, was appointed to assess the cervical spine, left upper extremity (shoulder) and scarring (TEMSKI) who as the lead assessor issued a Medical Assessment Certificate (MAC) on 24 August 2022. There is no appeal from the assessments by Dr Anderson of the cervical spine, left upper extremity (shoulder) and scarring (TEMSKI).
Dr Peter Spittaler, neurosurgeon was appointed to assess the nervous system who issued a MAC dated 24 August 2022 as a non-lead Medical Assessor. This MAC is the subject of appeal by the worker Ms Desiree Tagg (the appellant).
Dr Douglas Andrews, psychiatrist was appointed to assess the psychological injury who issued a MAC dated 24 August 2022 as a non-lead Medical Assessor. This MAC is the subject of appeal by the appellant.
Dr Anderson issued a Consolidated Medical Assessment Certificate assessing 12% whole person impairment (7% for the cervical spine, 4% for the left upper extremity (shoulder) and 0% for scarring. Dr Anderson included the assessment of Dr Spittaler for the nervous system which was recorded as “not able to be assessed”. Dr Andrews made no assessment of whole person impairment.
Ms Desiree Tagg (the appellant) lodged an application to appeal on 20 September 2022 (in Appeal proceedings M1-W5515/21) against the assessment of Dr Douglas Andrews and relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The appellant lodged an application to appeal on 20 September 2022 (in Appeal proceedings M2-W5515/21) against the assessment of Dr Peter Spittaler and relies on the following grounds of appeal under s 327(3) of the 1998 Act:
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
Both appeal proceedings M1-W5515/21 and M2-W5512.21 are being heard together.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested re-examination.
As a result of the preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination in respect of the appeal in relation to the assessment by Dr Peter Spittaler in relation to the nervous system because the Appeal Panel was not satisfied as to error that required a re-examination for the reasons set out below.
As a result of the preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination in relation to appeal in relation to the assessment of impairment as a result of the psychological injury because, for the reasons set out below, the Appeal Panel was satisfied as to error.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Michael Hong of the Appeal Panel conducted an examination of the worker and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
NGS 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.
In respect of the psychological injury, the matter was referred to the Medical Assessor Douglas Andrews as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· the degree of permanent impairment of the worker as a result of an injury (s319(c))
· whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
· whether impairment is permanent (s319(f))
· whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
· Date of injury: 15 June 2018
· Body parts/systems referred: Psychiatric/psychological
· Method of assessment: Whole Person Impairment”
The Medical Assessor did not assess permanent impairment based on his findings as follows:
“I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
I also refer to the Guidelines, paragraph 11.4 (my emphasis):
… Impairment arising from any of the somatoform disorders (DSM IV TR, DP 485 – 511) are excluded from this chapter.
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, non-epileptic 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. Her impairment is due to diagnoses that must be excluded in assessing impairment from a psychiatric disorder.
For these reasons, an assessment of impairment is unwarranted.”
The appellant appealed.
In summary, the appellant submitted on appeal as follows:
(a) Medical Assessor Andrews made a jurisdictional error and hence a demonstrable error by failing to assess impairment from a primary psychological injury which was the subject of the referral to him.
(b) The finding of Medical Assessor Andrews that there was no primary psychological injury was not legally open to him.
In summary, Racing NSW (the respondent) submitted on appeal that the finding that there was no primary psychological injury to be assessed was open to the Medical Assessor and that there has been no error and the MAC of Dr Andrews should be confirmed.
The Appeal Panel considered that the Medical Assessor had erred in failing to assess impairment from a primary psychological injury. He was required to assesses impairment from a primary psychological injury and he erred in failing to do so.
The Appeal Panel considered it necessary that the worker undergo a further examination and requested that Dr Michael Hong, a Medical Assessor member of the Appeal Panel who is a psychiatrist undertake the re-examination. Dr Hong re-examined the worker and reported to the Appeal Panel as follows:
“1. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Tagg fell from a horse on 15 June 2018. She has no independent memory of the fall, and remembered somebody tried to wake her up, but she did not want to wake up because she was somewhere peaceful. She remembered being in a hospital and her now husband came to the hospital to see her. Her mother was visiting from London at the time and she has a fragment of memory that two weeks after the accident, they did some pottery painting together. She said she was only in the hospital for two days, even though the doctors told her they had to bring her back to life after the accident.
Regarding her last memory immediately before the accident, she said she has a tiny memory of being on a boat not long before the accident, where her father was the captain, her now husband was there and they went to the Vivid Festival. Regarding her long-term memory, she stated her childhood memories are generally intact.
Since the accident, Ms Tagg suffered wide-ranging physical and psychiatric problems. She stated her attention deficit disorder is worse and she trialled other stimulant medications but they have not been beneficial.
Ms Tagg said the biggest problem is the pain and daily seizures. She predominately has right-sided jerking movements and sometimes she will have full-blown seizures.
She wants to be helpful and sometimes she will make coffee, and she said she can lift a 2 L milk carton but cannot pour it. If she tried to pour the 2 L, she would spill it everywhere and she can only lift very light items. She reported problems with her left shoulder. She had surgery on her left shoulder maybe five weeks after the fall, but she still has problems with it and it limits her lifting.
Her balance is poor. She constantly walks into things inside her house. When she gets up during the night, she bumps into things and has bruises.
She has nausea and vomiting almost every day, and vomited today.
She also reported an inability to recognise faces. Sometimes she would be at the shops, and people come up to say hello to her, but she has to apologise to them and say that she cannot remember who they are or if she met them before.
She said for about four weeks she could not even get out of bed or walk because her legs gave out for an unknown reason.
· Present treatment:
Ms Tagg is taking:
· Buprenorphine 15 mg
· Ritalin 60 mg
· Valproate 800 mg/ 24 hours
· Palexia
· Melatonin
· Maxolon
· Pantoprazole
· Clonazepam
· Norspan 20 mg
· Her medications have not changed for a long time
She consulted a few psychologists, recently Matthew Conroy, every 4 weeks. She has been consulting Dr Jothi Ramalingam, psychiatrist a few years, recently every 4 to 6 weeks.
· Present symptoms:
She read from a typed list and said that she is pleading to be heard. Her normal day is very difficult. Everything has to be written down in a list. Her life has changed and everybody around her has changed because of the accident. She was previously energetic, adventurous, independent, loud, funny, smart and a role model to everybody else but now she is a shell. She is brittle and hard to be recognised by people that know her. She has pain from the time she opens her eyes in the morning and is always in pain. She spends her whole day trying to fight the pain, but she cannot do much. She tries to keep calm. Her husband supports her. The pain feels like an eruption of lava all over her skin or feels like a lightning strike. She stated two pain specialists have given up on her. Norspan only covers 20 to 50% of the pain. She cannot take her daughter to school. She vomits and she has to hold onto things as she loses balance. She feels weak and clumsy. She said she walked to her neighbour’s house to check on her daughter who was there in October 2022 and then tripped from poor balance, and then broke her foot. Any change in routine will cause her brain to not be able to cope. She has a poor appetite and sometimes she has an appetite, but she only eats one meal a day. She is scared because if she eats the wrong food, her IBS (Irritable bowel syndrome) plays up and she has to go to the toilet. She said she spends 45% of the day on and off the toilet. She avoids going out because of noises and she does not feel safe due to the seizures, and she avoids going out because she needs to go to the toilet instantly. Her husband is with her all the time. The only time he goes away is for a three-hour trip away to pick up his son once a week. She cannot handle the children giggling at home. If she sees people tapping their feet outside, she has a mental meltdown. Her brain cannot cope. She struggles to go to Westfield and only goes to the local IGA store. She said people claim she is lying and malingering, but she is not. She said she does not have depression, only sadness. Her husband is having carer stress but she cannot help him. At that point, she stopped reading.
She later mentioned that she had been lactating since the accident and nobody knows why.
She said because of ADHD, she has to watch television whilst playing on her phone at the same time, as she cannot focus on one task.
She struggles when there is stimulation from multiple sources, for example if more than three people are in the room and talking together, with sounds coming from different directions, she gets confused and overstimulated and will have a seizure. She said she has a very strict daily routine to minimise her stress and seizures. When she plays the saxophone or the piano, she can play well and relies on playing from memory, even though it is loud, all the sounds are from one place and that does not trigger a seizure.
On specific enquiry, she stated she is anxious and worries about her physical injuries and pain. She has panic attacks and is easily frustrated. She has poor sleep and nightmares sometimes. Her appetite is variable. She is not sure how much she weighs and said her weight has not changed in the last six months and her weight is in the 60s.
Details of any previous or subsequent accidents, injuries or condition:
Ms Tagg was born in South Africa and came to Australia at either 12 or 13.
Attention deficit disorder was diagnosed in a Sydney clinic when she was 14 and she has been taking Ritalin stimulant at 60 mg ever since. After her horse accident, she said she briefly tried dexamphetamine and Vyvanse, both stimulant medications, however, had problems with them. She thought she might have seen a psychologist in relation to ADHD in her childhood, but only briefly.
She does not think she has ever suffered depression and said normally, she is very energetic and outgoing. She said she did not have anxiety problems in the past.
She was in an abusive relationship with the father of her two daughters, and had met him when she was 17. They were together for about nine years and they have some contact now, when they exchange custody of the children. She dated a few times after she left him.
· Social activities/ADL:
Ms Tagg is living with her husband. She has two daughters, one aged 9 living at home and the other one turned 12 not long ago, and she decided to move to live with her father in Bathurst.
She said she started dating her husband a week before the horse accident. Later, they moved in together and they have been married since 2019. Ms Tagg and her husband said there is no risk of separation. She stated he is very supportive but he is not able to work, because he has to look after her because of her constant seizures.
They have taken three trips away in the last couple of years. In Christmas 2021, they took the campervan to see her husband’s father who was suffering from cancer. They could not stay in a hotel because it would be too stressful to have to check out on time. She said they went somewhere quiet, like next to the beach overnight, and stay over in Byron Bay during the trip. The van is soundproof. They have also been away to Shell Bay, which is two hours away and also Umina Beach, maybe eight months ago. Even though she wants to go away, she struggles because of the change in routine and will have more vomiting, diarrhoea, seizures or pain.
Ms Tagg's husband goes away to pick up his son and bring him home once a week.
She cooks once or twice a week but struggles to use the oven and stove. She makes things that she knows well such as nachos, pasta bake and spaghetti. She said she enjoys cooking but because of poor balance and increased pain, she often has accidents such as burning herself.
She said she has one friend, who comes and takes her daughter out to do horse-riding. She does not contact any other friends anymore. She said she cannot handle more than three people in the room as she will "blackout" and have seizures, because when people talk from different directions and her brain cannot cope.
The only things she can enjoy are Netflix with her family, playing games on her phone and also her music. She plays the piano and saxaphone.
Ms Tagg spends time with her daughter, but her daughter knows she cannot tell Ms Tagg everything that happened during the school day in one go and will break it into portions, so that her seizures are not triggered by overstimulation.
When she is in the shower, she has a checklist so she does not forget the process. She showers every day without prompting. She said her husband has to tell her what to wear because her brain cannot handle it. She also finds the temperature change in the shower very difficult, and said she is petrified when the water temperature changes.
Ms Tagg tends to avoid driving and she can drive on her own locally to an IGA, maybe 2 km away to buy some light groceries.
In the past, Ms Tagg likes to go to the beach, festivals, surfing, and bushwalking. She wants to do them but she cannot do most of these activities as it will cause seizures or increase her pain.
She has a few siblings. A sister lives in Newport Beach and a half-sister lives in Queensland. She said she is close to all her siblings, sometimes they talk but they do not see each other that much. Sometimes the sister from Newport will take her daughter for the weekend.
Since the subject injury, Ms Tagg has not been able to attempt further employment or study.
2. FINDINGS ON PHYSICAL EXAMINATION
Ms Tagg was assessed by video. She was at home and her husband Mick Tagg was present during the assessment. The assessment took 75 minutes.
Ms Tagg had long light colour hair and presented as neat and tidy. She wore nail polish and earrings. She stuttered at times and was anxious to talk, and was generally talkative. She smiled and laughed appropriately but presented as psychologically fragile. She engaged well with the video assessment process. There was no psychomotor slowing. She was not restricted in her affect range and had rapid shifting affect. She spoke spontaneously. She had a disorganized narrative and was not thought disordered.
At the end of the assessment, she was asked if she had other information she thought may be relevant and she said she is no better over time, she was brought back to life but discharged 2 days later, she has recurrent infections and Irritable bowel syndrome, her pain medications are not sorted and she has severe pain, she has a beautiful relationship with her husband, she cannot go to Westfield and watch the latest movies at the cinema even though she wants to.
3. DETAILS AND DATES OF SPECIAL INVESTIGATIONS
No special investigations.
4. SUMMARY
· summary of injuries and diagnoses:
Ms Tagg suffers from ADHD and has been on stimulant medication since age 14. After the accident in 2018, she continued the same stimulant medication dose and tried other ADHD treatments but could not tolerate them, and she is back to the same stimulant medication at the same dose, but it is not as effective now.
She described the onset of anxiety symptoms and an aggravation of pre-existing ADHD after the subject accident, and does not believe she has suffered depression after the accident. Her psychological condition has maintained a similar trajectory for a long time and is well-stabilised.
The Panel concluded Ms Tagg developed an aggravation of ADHD and a new psychological injury, an Adjustment disorder with anxiety symptoms as a result of the subject accident and her psychological injury is a primary psychological injury.
· consistency of presentation
Her psychological presentation is consistent with an aggravation of ADHD and new anxiety symptoms.
5. EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a.Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system:
No.
b.Have all body parts/systems stabilized/reached maximum medical improvement?
Yes. Ms Tagg's psychological symptoms are well stabilized with appropriate treatment, and not likely to alter to a substantial degree in the next 12 months.
c.If not, please list those injuries not yet stable/at maximum medical improvement:
This question is not applicable.
d.If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?
This question is not applicable.
e.Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes, there was a pre-existing condition that contributes to a proportion of Ms Tagg's current loss of efficiency and impairment. She has pre-existing ADHD and it was stabilized on stimulant medication. After the subject accident, her ADHD is worse and her impairment is greater. Her current impairment is greater due to pre-existing ADHD, and stimulant medication is not as effective since the subject accident.
f.If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Psychological.
g.Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.
No further psychological injury identified.
6. THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
The clinical examination and perusal of documentation submitted by the parties.
7. REASONS FOR ASSESSMENT
a.My opinion and assessment of whole person impairment
Please see PIRS table.
In making that assessment I have taken account of the following matters:
The provided reports, Ms Tagg's reported history, and mental state examination.
b.An explanation of my calculations (if applicable)
Worksheet /actual calculations attached? Yes.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
Dr Ash Takyar IME psychiatrist reported on 7/10/2020, rated Ms Tagg's self-care and personal hygiene as 3 and noted she likely needs prompting. The Panel noted she needs physical assistance but this is not assessable in the PIRS. From a psychological perspective, she continues to be independent. Her anxiety and cognitive problems affect her self-care, and this is consistent with 2.
Dr Takyar rated social and recreational activities as 3 and noted Ms Tagg cannot deal with more than 2 or 3 people in the room, she was distressed at her wedding and had seizures, her previous hobbies, bush walking and surfing have ceased. The Panel noted she cannot do some activities due to her physical injuries and pain and this is not assessable in PIRS. She has difficulties with overstimulation causing seizures, when interacting with people. From a psychological perspective, she wants to have social and recreational activities and can only engage in physically inactive recreational activities, predominately with her family. As she does engage in regular social and recreational activities with her family, this is consistent with 2.
Dr Takyar did not apply a Section 323 deduction. The Panel noted she was on regular stimulant medication for ADHD and whilst her pre-existing injury was asymptomatic, there is a contribution to her current impairment and ADHD has been aggravated as a result of the subject accident.
c.I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
Yes.
8. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a.In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) There was a pre-existing ADHD.
b.The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Ms Tagg's pre-existing condition contributed to her current impairment.
She was on treatment for ADHD, and her ADHD was worse after the subject accident and continues to contribute to her concentration problems.
c.The extent of the deduction is difficult and/or costly to determine, so in applying the provisions of s.323(2), the deductible proportion is assessed as one-tenth.
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
Ms Tagg has no appetite and only eats 1 meal a day, and maintains a stable weight. She showers daily but needs a checklist. She cooks and does minimal shopping and household chores.
From a psychological perspective, she is capable of independent living without regular support, and does not need prompting with her self-care.
Her physical injuries and pain are the main impediments and are not assessable in the PIRS.
Social and recreational activities
2
She wants to participate in social and recreational activities but cannot do most of her usual recreational activities, due to her physical injuries and pain, which are not assessable.
From a psychological perspective, she can tolerate small social and recreational activities, e.g. trips away with her husband, watching TV and Netflix regularly with her family, and sometimes playing musical instruments to her family, as these activities are within her physical capacity.
Travel
2
Ms Tagg avoids large shops and being away from home for too long.
She is independent in travel locally.
Social functioning
2
Ms Tagg's relationship with her husband is good. They married after the subject accident.
She does not contact her friends anymore, except one friend close by.
The relationship with her general family is reasonable.
She cares for her children, within her physical capacity.
Concentration, persistence and pace
3
She cannot study or read books, or engage in intellectually demanding tasks. Her impairment is moderate and stimulants help.
Employability
5
Ms Tagg has not worked since the fall.
Her anxieties and concentration problems are significant and prevent her return to work.
Score
Median Class
2
2
2
2
3
5
=2
Aggregate Score Impairment
Total
%
+
+
+
+
+
16
9
Pre-existing injury
One-tenth
Treatment effects
There has been mild substantial elimination of impairment with treatment, and without stimulant medication her overall impairment would be greater.
1
Final WPI
9
The Appeal Panel adopts the report and findings of Dr Hong. On this basis, the Appeal Panel will revoke the MAC of Dr Douglas Andrews and issue a new MAC. The new certificate is attached to this statement of reasons.
Turning then to the appeal in relation to the assessment by Medical Assessor Spittaler in relation to the nervous system.
Dr Spittaler noted the matter was referred to him as follows:
“I am one of the Medical Assessors involved in the above matter and the following matters have been referred for assessment (s 319 of the 1998 Act):
·Date of injury: 15/06/2018
·Body parts/systems referred: Nervous system
·Method of assessment: Whole person impairment with reference to NSW Workers Compensation Guidelines and AMA 5.
My Assessment is referred to Dr Tim Anderson as Lead Assessor for issue of a consolidated Medical Assessment Certificate.”
The Medical Assessor concluded that “Based on the lack of documented GCS abnormality, PTA duration and CT or MRI abnormality I am not in a position to be able to assess any permanent impairment relating to a traumatic brain injury”.
The appellant appealed.
In summary the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and made a demonstrable error as follows:
(a) The Medical Assessor made no assessment at all of whole person impairment and he was required to do so.
(b) It was not open to him to find that he was not able to assess impairment.
(c) The Medical Assessor was required to proceed with the evidence he had and do his best to assess whole person impairment using appropriate clinical judgment.
(d) He did not embark on a process of assessing whole person impairment as he was required to do.
In summary, the respondent submitted on appeal that the Medical Assessor did not make an assessment on the basis of incorrect criteria and that he did not make a demonstrable error and that his MAC should be confirmed.
Dr Spittaler took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
The worker told me that she is a 33-year-old woman who is married and has two children from a prior relationship. She is usually employed as a jockey although she told me she has not worked since the accident. Her past medical history includes irritable bowel syndrome. She smokes some ten cigarettes per day.
The worker told me that she was doing track work at about 5:30 in the morning at Wyong Racecourse. Her husband was employed to supervise the trackwork which involved a number of other riders and horses. Her husband and a trainer found her both she and her husband estimated a period of a minute or so after she had fallen off a horse. She was ‘talking gibberish’ to the trainer. The trainer took her home as her husband was working and when her husband arrived at home at about 8:30 in the morning, she was unwell and he took her to Wyong Hospital where she arrived at about 8:45.
Mrs Tagg’s first memory after the fall was about two weeks later when she was painting with her children.
The worker was wearing a hard-shelled helmet. The shell was not damaged but the helmet was very muddy and the goggles had been smashed.
Mrs Tagg’s other significant injuries were a dislocation of the left shoulder and a fracture of the left clavicle. The shoulder was reduced with sedation/anaesthetic and the clavicle was subsequently treated via open reduction and internal fixation several weeks after the injury. These injuries are obviously outside my area of expertise.
Mrs Tagg has had ongoing issues relating to her head injury. In the 524 page brief of documents provided there is a 3 page document in which Mrs Tagg describes her current cognitive or cerebral symptoms.
The worker has had falls before leading to other fractures including a fractured pelvis.
The worker told me that she was an apprentice jockey after leaving school and also variously worked as a delivery driver and a sedentary worker.
The worker does not partake of any social activities and is independent in self care
Dr Spittaler recorded his examination findings as:
“On examination on the 3rd of June the worker was oriented to time, place and person. She knew the address and the purpose of the consultation. On questioning about the Prime Minister, she gave the name of the previous Prime Minister although she knew that there had been a change of government but she could not recall the current Prime Minister’s name.
The visual fields were full to confrontation and there was no hemiparesis or facial weakness.”
Dr Spittaler had regard to the special investigations as follows:
“In the brief of documents there are reports of three CT scans of the head, two performed on the 15th of June 2018 (the date of the injury), a trauma CT scan done at 10:38 and a CT of the brain done at 5:22 at Wyong Hospital which are reported as normal.
The third CT scan of the head was performed at the request of Dr Ramalingham (psychiatrist) by PRP Radiology on the 2nd of September 2019. This is also reported as normal.
In addition, there is the report of an MRI scan of the brain performed by I-Med Radiology on the 6th of September 2018 at the request of Professor Robert Heard which is reported as normal. Finally, there is a comment of an EEG of the brain in correspondence from Professor Heard dated the 18th of December 2018 which also is reportedly normal.”
Dr Spittaler summarised the injury as follows noting the appellant was consistent in her presentation:
“Summary of injuries and diagnoses:
The injury which is the concern of this assessment is a traumatic brain injury.
· Consistency of presentation
Mrs Tagg’s presentation of the 3rd of June was internally consistent and also corresponded with the documentation in the brief.”
The Medical Assessor is bound to make an assessment in accordance with the criteria in the Guidelines.
The Guidelines provide at paragraph 5.9 as follows:
“5.9 In assessing disturbances of mental status and integrative functioning; and emotional or behavioural disturbances; disturbances in the level of consciousness and awareness; disturbances of sleep and arousal function; and disorders of communication (AMA5 sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f; pp 309–311 and 317–327), the assessor should make ratings based on clinical assessment and the results of neuropsychometric testing, where available.
For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.
Clinical assessment must include at least one of the following:
i.significant medically verified abnormalities in the Glasgow Coma Scale score
ii.significant medically verified duration of post-traumatic amnesia
iii.significant intracranial pathology on CT scan or MRI.
Neuropsychological testing should be conducted by a registered clinical neuropsychologist who is a member, or is eligible for membership, of the Australian Psychological Society’s College of Clinical Neuropsychology. Neuropsychological test data is to be considered in the context of the overall clinical history, examination and radiological findings, and not in isolation.
Dr Spittaler explained the reasons was he was unable to assess impairment in accordance with the Guidelines:
“The facts on which I have based my assessment of whole person impairment are:
The requirements to assess traumatic brain injury are covered in paragraph 5.9, page 32 of the Workcover Guides. There needs to be ‘evidence of a severe impact to the head, or that the injury involved a high energy impact.
Clinical assessment must include at least one of the following:
-Significant medically verified abnormailities in the Glascow Coma Scale Score
-Significant medically verified duration of post-traumatic amnesia
-Significant intracranial pathology on CT scan or MRI.’
I will work though each of these points.
i)The history, that is a fall off a galloping horse, would support that there was a severe impact. The photographs provided by the worker similarly demonstrate there has been a significant injury. On pages 469-471 of the brief of documents there are undated photographs which appear to be taken in hospital of the worker. These demonstrate significant right periorbital bruising and an abrasion on the bridge of the nose and abrasions on the lips. This would require a significant impact for these superficial injuries.
On the other hand, from the history the worker’s helmet was not substantially damaged (other than the goggles).
ii)Having examed the extensive brief of documents (524 pages) I can find no evidence of a medically verified depressed Glascow Coma Scale. The Wyong Hospital notes, specifically on page 131 of the brief record a secondary survery on the day of the injury which documents a Glascow Coma Scale of 14 (out of 15; I would not consider this a signficant abnormality). This Glascow Coma Scale could be observed in a patient who has their eyes closed because they are resting. There is however mention in the surgical consult notes on page 132 of ‘concussion’ although this is not characterised.
The worker and her husband told me during the assessment that there was a period of a ‘rapid response’ which led to a loss of consciousness and to a period in high dependency or intensive care although this is not documented. This may have been an early post-traumatic seizure and does not in itself constitute a low GCS from trauma. I note however in the request for the CT scan which was performed in the evening after the injury on page 140 of the brief, the request states acute drop in GCS. The subsequent CT brain was normal.
If there was a significant change in the Glascow Coma Scale then I would expect this was documented in the admission notes and there is no documentation regarding such a change in the information provided.
iii)Significant medically verified duration of post-traumatic amnesia; on page 132 of the brief in the admission notes under Plan, point 7 is directions to perform AWPTAS. This stands for the Abbreviated Westmead Post-Traumatic Amnesia Scale and is a means of assessing the duration of post-traumatic amnesia. In the hopsital admission notes that I have viewed there is no evidence that this has been performed. In short, there is no medically verified duration of post-traumatic amnesia.
iv)The cranial imaging, both CT scan on the day of injury and subsequent CT scan and MRI scan were all normal.
Based on these findings of the documents, I am unable to assess the worker as having sustained a significant traumatic brain injury according to the Workcover Guidelines.”
The Medical Assessor concluded that “Based on the lack of documented GCS abnormality, PTA duration and CT or MRI abnormality I am not in a position to be able to assess any permanent impairment relating to a traumatic brain injury”.
The Medical Assessor made brief comments about the other evidence and medical opinion that was before him as follows:
“I note the report of Dr Renata Abraszko (reference pages 51-61) for the worker’s solicitor. Dr Abraszko notes that the CT of the brain and subsequent MRI of the brain was normal. Dr Abraszko assesses the worker as having a 20% whole person impairment due to her traumatic brain injury. However, nowhere in Dr Abraszko‘s report is there reference to the requirements to be able to assess traumatic brain injury which I have referred to above (GCS abnormality, PTA duration or abnormality on imaging).
I note the report of Professor Robert Heard dated 6 September 2018. Professor Heard saw the worker on a clinical basis after referral by her general practitioner. The history Professor Heard elicits is consistent with the history I elicited and the rest of the documents. He notes that in the discharge summary there was no mention of GCS or PTA. I presume Professor Heard has not seen the rest of the brief. He states from the worker’s history there was a post-traumatic amnesia period of three days, but this is not medically documented and cannot be relied on according to the Workcover Guidelines.
I note the report of Dr Ron Granot, neurologist dated the 10th of March 2021. Dr Granot refers to a report by Dr Neil Simon from January 2019 which I have not seen. Dr Granot notes the lack of documented GCS abnormality or abnormality on CT scan and similarly notes there was no PTA recorded. On that basis, Dr Granot feels there is no assessable impairment due to a traumatic brain injury. “
The Medical Assessor has made an assessment of impairment in accordance with the correct criteria in the Guidelines. When the MAC is read as a whole, he has assessed that there is no rateable impairment in accordance with the correct criteria in the guidelines. Using his independent clinical judgment and exercising his clinical expertise, he has had regard to the correct criteria which does not allow for an assessment of impairment in circumstances where the significant head injury (which he accepted had occurred) was not accompanied by any one of the following requisite criteria, based on Dr Spittaler’s clinical assessment and for reasons which he has adequately explained:
“Significant medically verified abnormailities in the Glascow Coma Scale Score
Significant medically verified duration of post-traumatic amnesia
Significant intracranial pathology on CT scan or MRI.”
For these reasons, the Appeal Panel has determined that the MAC issued by Dr Spittaler on 24 August 2022 should be revoked and a new MAC issued assessing 0% whole person impairment for the nervous system, which assessment accords with Dr Spittaler’s substantive reasoning as follows:
| Body Part or system | Date of Injury | Chapter, | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Nervous System | 15.08.2018 | Chapter 5 | Table 13-5, 13-6, page 320 | 0 | Nil | 0 |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
For these reasons, the Appeal Panel has determined that the Medical Assessment Certificates issued by Dr Douglas Andrews and Dr Spitaller dated 24 August 2022 should be revoked and new Medical Assessment Certificates are attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5515/21 |
Applicant: | Desiree Tagg |
Respondent: | Racing NSW |
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 Peter Spittaler 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Nervous System | 15.08.2018 | Chapter 5 | Table 13-5, 13-6, page 320 | 0 | Nil | 0 |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
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)
| ody Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological | 15.08.2018 | Chapter 11, page 6, table 11.8 | N/A | 9 | 1/10 | 9 (with 1% allowed for treatment effects) |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||