The Benevolent Society v Ruigrok
[2023] NSWPICMP 289
•23 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | The Benevolent Society v Ruigrok [2023] NSWPICMP 289 |
| APPELLANT: | The Benevolent Society |
| RESPONDENT: | Kylie Anne Ruigrok |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 23 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) had erred in repeatedly concluding that maximum medical improvement (MMI) had not been achieved, despite several reconsiderations undertaken by the MA; the Panel agreed and re-examination was arranged; on re-examination, similar findings were made; whole person impairment assessed was 6%; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 December 2022 Kylie Anne Ruigrok (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 November 2022.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground 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.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because in our preliminary assessment, we determined that the Medical Assessor had erred in repeatedly concluding that maximum medical improvement (MMI) had not been achieved, despite several reconsiderations undertaken by the Medical Assessor.
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 on
16 June 2023 and reported to the Appeal Panel.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in finding that MMI had not been reached, but nonetheless assessed 6% whole person impairment (WPI), and erred with respect to his findings in relation to all categories in the psychiatric impairment rating scale (PIRS).
Although the appellant’s submissions only addressed 5 of the categories (self-care and personal hygiene omitted), the appellant did state in the appeal document that the Medical Assessor erred “in each and every of the PIRS categories”, thus the Panel concluded that a re-examination with respect to all categories was appropriate.
In reply, the respondent submits that no errors were made, and that the MAC should be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of
19 November 2020.In his Reconsideration MAC, the Medical Assessor said as follows:
“Documentary Evidence.
The following medical reports, statements and/or submissions were referred by the Registrar or the Commission for this further assessment or reconsideration:
The original assessment brief.
Reconsideration application and response. Reconsideration decision 10/10/22…
EVALUATION OF PERMANENT IMPAIRMENT – ASSESSMENT AND REASONS:
My opinion and assessment of permanent impairment and or whole person impairment: n/a.
6% WPI.”
In the Table attached to the MAC, the Medical Assessor set out his assessments in respect of the various PIRS categories as follows:
“Self- Care and personal hygiene: Class 2: Lacks motivation to care for self.
Social and recreational activities: Class 2: She has had a decrease in social activity.
Travel: Class 2: She is able to travel independently with some anxiety at times.
Social functioning: Class 2: She has maintained good family relationships but describes a poorer quality with friends.
Concentration, persistence and pace: Class 2: She reports subjective difficulties with concentration She is able to concentrate adequately for work currently.
Employability: Class 2: She is able to work 24 hours a week with a different employer.”
The median class score was 2, leading to an aggregate score of 6% WPI.
Because of the errors we referred to earlier, the Panel determined that a re-examination was warranted.
In his report following his re-examination, Dr Hong said:
“Update history:
Ms Ruigrok had worked at TBS, three days a week from 2019 for about 18 months and last worked on 19 November 2020.
She reported that there were hundreds of things that went wrong at work, leading to her suffering a nervous breakdown…
With a friend’s help, she obtained a job at Lifeline and worked there between April 2021 and September 2022…
Since the job ended, she worries about how she can apply for another job, as she does not trust that other employers would manage her properly…
Present treatment:
Ms Ruigrok has never taken psychotropic medication. She consulted a psychologist for 6 sessions, the last time was 2 years ago.
Present symptoms:
Ms Ruigrok reported that her depression and anxiety have not resolved since her work injury. She has good and bad days, around 50/50 in terms of the frequency of her anxiety and depression.
Her sleep is sometimes good and sometimes bad. If she has bad sleep, she often does not focus well and feels more anxious the next day.
She feels that she has lost her sense of identity.
She has had transient suicidal thoughts and said she would never act on those thoughts.
She described concentration and memory difficulties since her work injury. She has intermittent poor sleep and sometimes nightmares related to work. She feels anxious and has panic attack-like symptoms. She has been irritable without anger problems or acting out.
She is less social due to her anxiety.
She lost 10kg early in 2023 through exercise and a strict diet, however regained 7kg, and explained she over-exercised and injured her foot. She has a good diet now and eats regular meals.
She showers daily and attends to all household chores, cooking, shopping and laundry.
Social activities/ADL:
Ms Ruigrok is 51 and she is living with her husband. She has five children altogether with three living at home, aged 18 and a set of twins aged 15.
She described having social anxiety and reported that she tends to avoid large social gatherings now, whereas normally she was "super confident" in groups. She reported that a few weeks ago, her friend had a 50th birthday party and she almost pulled out. She did go eventually and said that there were probably 50 to 60 people there. She said she had not attended a party that large for a long time.
She generally only tolerates small social events, with four to five close people. They catch up every one or two months and they either eat at home and somebody will cook, or they will go out to a restaurant for dinner. She said that in the past they would do it every weekend, but now it is much less frequent.
Ms Ruigrok has a cabin in a caravan park at Anna Bay, which is about an hour from Singleton where she lives. She goes there every school holiday with the twins, and because her husband works, he often makes his way there separately. She said she would go there to swim at the beach, and she has friends who also have cabins in the park and it is easier to socialise with them there.
She reported that her driving has deteriorated. She is less confident on the road and finds it hard to drive long distances, and sometimes she avoids driving.
She has two sisters. One moved to London and because of the time zone difference, they are not as close. With the other sister, she stated there is no problem there, and they catch up every couple of months.
Ms Ruigrok reported she has been married for 28 years and has a very close relationship with her husband.
She reads self-help books, books about resilience, with which she said she can help herself and with her work. Sometimes she will read until she falls asleep.
Her daily routine involves getting up, helping the children get ready for school, and she does a lot of journaling. She takes walks sometimes and said there is a lot of laundry to do because her children play sports. She goes to buy groceries a couple of times a week and tends to use click-and-collect. She talks to her two adult children every day.
She said she showers daily and eats regularly without prompting. She changes to clean clothes regularly. She attends to the household chores and shopping. She stated she cooks and does all the home duties, whether she is at home or at the cabin.”
Dr Hong’s findings on examination were reported as follows:
“Ms Ruigrok was assessed by video. She was alone, and her daughter was also at home during the assessment. I assessed her from my Sydney office. She was well-groomed and wore appropriate cosmetics. She engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. She presented as anxious at times. Her affect was generally bright and reactive. She spoke spontaneously and was generally talkative, and gave detailed answers. She was not thought disordered. She was not distracted and maintained a normal speed and pace.”
Dr Hong summarised the injuries and diagnoses as follows:
“Ms Ruigrok had no prior psychiatric conditions and described that due to working at TBS, she suffered chronic depression and anxieties. Her psychological symptoms fluctuated but have not resolved, and are consistent with an Adjustment disorder. Her psychological injury is well-established and MMI has been reached.
In terms of a WPI assessment, Dr Ben Teoh rated a 3 in social and recreational activities and noted a loss of interest in usual activities and social isolation, and does not record any social or recreational activity. Dr Kumar rated a 2 and noted she had a recent holiday and met with her social group regularly. In my assessment, I noted a similar history that she does go and use a cabin regularly and she socialises with other friends who are also at the same caravan park. She catches up with her friends, usually at dinner parties either at home or eating out, but much less than in the past, and this is consistent with a 2.
In terms of self-care and personal hygiene, my assessment is consistent with the other evidence on file. She has no impairment.
In terms of social functioning, Dr Teoh rated a 3 and advised Ms Ruigrok had a strained relationship due to irritability and lacking communication. Dr Kumar rated a 1 and noted a good relationship and ability to form a new group with ex-employees from TBS and there is no impairment. In my assessment I noted that her marriage is good, she has a good relationship with her family and some close friends, but there has definitely been a strain and a loss of some friendships and acquaintances, and therefore I rated a 2.
In terms of travel, I noted the IMEs rated 2 and this is consistent with my assessment, that she has mild impairment.
In terms of concentration, persistence and pace, Dr Teoh rated a 3 and noted Ms Ruigrok has poor communication and persistent preoccupation with negative thoughts, and Dr Kumar rated a 2 and noted some forgetfulness, but she is able to work without difficulty. In my assessment, I noted that when she worked at Lifeline she would attend to clients' individual needs for half an hour to one hour and she ran a program with another facilitator, which was for two hours. Taking her presentation today into consideration, I rated a 2.
In terms of employability, Dr Kumar rated a 2 and noted Ms Ruigrok was working 26 hours a week with a different employer. In my assessment, I noted that she did perform work of 26 hours per week with Lifeline, but the nature of the work was different and less stressful, and was predominantly online, and my view is that it is closer to a 3 than a 2.”
Dr Hong added: “I have found no inconsistency in Ms Ruigrok's presentation”.
The Panel accepts and agrees with the assessment of Dr Hong.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 November 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W767/22 |
Applicant: | Kylie Anne Ruigrok |
Respondent: | The Benevolent Society |
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 Gerald Chew and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psycho-logical | 17/11/20 | 11 page 55-60 | 14 | 6 | 0 | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
0