Thomson v Trustees of the Roman Catholic Church for the Diocese of Broken Bay
[2024] NSWPICMP 631
•5 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Thomson v Trustees of the Roman Catholic Church for the Diocese of Broken Bay [2024] NSWPICMP 631 |
| APPELLANT: | Michelle Thomson |
| RESPONDENT: | Trustees of the Roman Catholic Church for the Diocese of Broken Bay |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 5 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred in ratings of appellant’s impairment in travel, and concentration, persistence and pace; whether MA erred with respect to the deduction made under section 323(1); whether MA erred by not adding any percentage of whole person impairment (WPI) under paragraph 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 April 2024 Michelle Thomson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 March 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 (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).
RELEVANT FACTUAL BACKGROUND
At some time in 2014 the appellant commenced employment as a youth worker with the Trustees of the Roman Catholic Church for the Diocese of Broken Bay, the respondent. Her last day of work with the respondent was on 17 June 2019. Due to events that occurred in her employment she suffered a psychological injury.
On 30 November 2021 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her injury, the degree of which a psychiatrist Dr Abdal Khan had assessed at 20% whole person impairment (WPI). The appellant’s solicitors provided the respondent’s insurer a copy of a report of Dr Khan dated 11 October 2021 in which Dr Khan detailed his assessment.
The insurer then arranged for the appellant to be examined by psychiatrist Dr Nadeen Anwar on 22 March 2022, who in a report of 20 April 2022 advised the insurer, amongst other matters, that he considered the appellant’s employment with the respondent had caused her to suffer post-traumatic stress disorder and an aggravation of pre-existing conditions, which he identified in his report as an anxiety disorder and a depression/mood disorder. Dr Anwar also noted the appellant had fluctuating symptoms of childhood and adult attention deficit disorder (ADD) that was diagnosed after her injury and that was being well treated by medication.
Dr Anwar advised in his report that he did not believe the appellant had reached maximum medical improvement because she had only been trailed on one antidepressant and, in his view, had not received adequate and evidence based psychological treatment for her psychological disorders and that if she were to receive evidence based pharmacological treatments and psychological therapy there would be a noticeable improvement in her psychological symptoms and functioning. He did not assess the degree of the appellant’s permanent impairment because he considered she had not reached maximum medical improvement.
On 26 May 2022 the insurer wrote to the appellant, care of her solicitors, notifying her under s 78 of the 1998 Act that it disputed it was liable to pay her compensation under s 66 of the 1987 Act. It advised her its reason was that she had not reached maximum medical improvement and that, because of that, she had no entitlement to compensation under s 66 of the 1987 Act.
On 16 August 2022 the appellant’s solicitors lodged, on behalf of the appellant, an Application to Resolve a Dispute with the Personal Injury Commission (Commission) seeking the Commission determine the appellant’s claim for compensation for permanent impairment. The matter came before a Member of the Commission, namely Mr Gaius Whiffin, who, with the consent of the parties, remitted the matter on 21 September 2022 to the President of the Commission so that it could be referred to a Medical Assessor to assess various medical disputes between the parties relating to the degree of the appellant’s permanent impairment from her injury.
A referral was duly issued by a delegate of the President of the Commission on
18 November 2022. The Medical Assessor examined the appellant on 28 February 2024 to conduct the assessment of the medical disputes that had been referred to her. The reason for the delay between the referral being issued to the Medical Assessor and her examining the appellant is not apparent from the material before the Appeal Panel.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor certified in the MAC that she had assessed the appellant’s impairment is permanent and the degree of the appellant’s permanent impairment is fully ascertainable. Those assessment have not been challenged in the appellant’s appeal against the medical assessment.
The Medical Assessor’s assessment of the degree of the appellant’s permanent impairment was done by reference to the Psychiatric Impairment Rating Scale (PIRS), as detailed in paragraphs 11.11 and 11.12 and Tables 11.1 – 11.6 of the Guidelines. Based on her ratings of the appellant’s Class scores in the several PIRS categories, the Medical Assessor assessed that the appellant’s overall permanent impairment from her injury is 9% WPI. She considered a proportion of the appellant’s permanent impairment is due to a pre-existing condition, which she identified as a pre-existing history of depression. She assessed the extent of that proportion is one-tenth, which she assumed to be the case in accordance with s 323(2) of the 1998 Act. In compliance with s 323(1) of the 1998 Act, she made a deduction of that order from the overall permanent impairment she assessed the appellant had, such that she assessed, and certified, the degree of the appellant’s permanent impairment from her injury is 8% WPI.
In the PIRS rating form within the MAC the Medical Assessor wrote “adjustment for treatment affect = 0%”. By that she was indicating that she had not applied paragraph 1.32 of the Guidelines. She did not provide any reasons for not doing so.
In her appeal against the medical assessment the appellant has challenged, firstly, the Medical Assessor’s ratings of her permanent impairment in the PIRS categories of concentration, persistence and pace (CPP) and in travel, secondly, the deduction the Medical Assessor made under s 323(1) of the 1998 Act and, finally, the fact that the Medical Assessor did not add any percentage WPI under paragraph 1.32 of the Guidelines.
Relevant to those matters the Medical Assessor recorded in the clinical history she detailed in the MAC that the appellant sees her psychiatrist every fortnight for medication management and psychological interventions. The Medical Assessor recorded that the appellant’s medications currently consist of Effexor 75mg, Ritalin LA 40mg, Valdoxan 50mg, Prazosin 5mg, and Valium prn up to 10mg a day, and Olanzapine.
The Medical Assessor also recorded that the appellant had seen a psychologist around 20 years ago after falling out with her brother, and was then commenced on an antidepressant. The Medical Assessor noted that the appellant took the antidepressant for a couple of years and then ceased it. The Medical Assessor also noted that the appellant had a miscarriage at 20 weeks in 2004 and then struggled with her mood and was again prescribed an antidepressant for a year. The Medical Assessor recorded that the appellant also suffered postnatal depression following the birth of her youngest son 12 years ago and was again put on an antidepressant.
As said, the Medical Assessor identified the appellant had a pre-existing history of depression and came to the view that this contributed a proportion of her permanent impairment from her injury. She explained at 11b of the MAC that her reason for that is that “the previous conditions seem to have predisposed Ms Thompson [sic] to have exacerbation of her depressive symptoms and developed Post Traumatic Stress Disorder”.
The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in travel as Class 2:
“Ms Thompson is able to drive to close distances on her own and is able to attend her medical appointments without any support. She is also able to go to her chemist and her GP without any support. She reported that she took a holiday to Snowy Mountains in August 2023 but retreated to her room when she felt anxious.”
The reasons the Medical Assessor provided in the PIRS rating form in the MAC for rating the appellant’s impairment in CPP as Class 2 are:
“Ms Thompson reported that her attention and concentration is ‘terrible’ and she struggles to remember things, even conversations. She said that sometimes ‘she can read the whole article and sometimes she can get distracted when reading a
magazine.’ She added that she was diagnosed with ADHD and her attention has now improved with Ritalin LA.”
The Medical Assessor also recorded in the MAC, when comparing her assessment with the assessment Dr Khan had made of the appellant’s impairment in CPP, that she noted the appellant had reported subjective deterioration in her concentration and that her concentration and attention fluctuate. Further, the Medical Assessor said that she did not notice any major impairments in the appellant’s short-term memory or the appellant having any difficulty recollecting information during her assessment of the appellant or any significant impairment in her long-term memory. The Medical Assessor said that she considered those matters warranted a rating of mild impairment, rather than a moderate impairment that Dr Khan had assessed.
The Medical Assessor within the body of the MAC also recorded that the appellant had received a diagnosis of attention deficit hyperactivity disorder and had been started on Ritalin LA and that this improved her attention and concentration.
The Medical Assessor said that the appellant’s presentation is “consistent with a diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder on the background of ADHD”.
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 explained below, the MAC contained a demonstrable error and that to be able to correct that error the Appeal Panel considered it would need further clinical data from the appellant. The Appeal Panel appointed Medical Assessor Graham Blom to conduct that examination, which he did on 20 August 2024. His report to the Appeal Panel is copied below under Findings and Reasons.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by not applying paragraph 11.10 of the Guidelines when assessing the deduction to be made under s 323(1) for the proportion of her permanent impairment that was due to a pre-existing condition. The appellant submitted that because she had a pre-existing ADHD it was “very important that the Guidelines be applied and that a pre and post injury PIRS assessment be performed”.
The appellant submitted that the Medical Assessor failed to make an allowance for the effects of her treatment. The appellant submitted that the Medical Assessor failed to discuss this issue in the MAC.
The appellant submitted that the Medical Assessor failed to assess her impairment in CPP correctly. The appellant submitted that the Medical Assessor did not have proper regard to Table 11.5 of the Guidelines and that had she done so, then based on the evidence her impairment in CPP ought to have assessed as Class 3. The appellant submitted that the Medical Assessor failed to give adequate or proper reasons for her rating.
The appellant submitted that the Medical Assessor failed to make a proper assessment of her impairment in travel and did not provide proper or adequate reasons for her assessment. The appellant referred to the reasons Dr Khan provided for his assessment of her impairment in travel, but beyond that, the appellant did not make any specific submission regarding how the Medical Assessor erred with respect to her assessment of the appellant’s impairment in travel.
In reply, the respondent submitted that the Medical Assessor detailed the extent of the appellant’s pre-existing condition, which included that the appellant was receiving medication before commencing her employment with the respondent. The respondent submitted that it was not incumbent of the Medical Assessor to apply paragraph 11.10 of the Guidelines to determine the deduction to be made under s 323(1). The respondent submitted that the evidence suggested that the appellant had an impairment from a pre-existing condition prior to her injury and that a deduction is required when a pre-existing condition contributes to the permanent impairment assessed, regardless of whether that pre-existing condition was symptomatic or asymptomatic prior to the appellant’s injury. The respondent referred to Marks v Secretary, Department of Communities and Justice (No 2)[1] in which the respondent submitted it was held that paragraph 11.10 of the Guidelines is invalid as it conflicts with s 323.
[1] [2021] NSWSC 616 (Marks).
The respondent highlighted that Dr Khan had made a deduction of one-tenth under s 323.
The respondent submitted that paragraph 1.32 of the Guidelines did not apply in this matter because the appellant’s long-term treatment had not resulted in substantial elimination of the appellant’s permanent impairment which the respondent submitted is apparent from the Medical Assessor’s assessment.
With respect to the Medical Assessor’s rating of the appellant’s impairment in travel, the respondent submitted that based on the reasons the Medical Assessor provided, the requirements for a Class 3 rating are not met. The respondent submitted that the Medical Assessor was not bound to adopt the history taken by Dr Khan relating to the appellant’s capacity in travel. The respondent noted that Dr Khan’s history was, in any event, recorded around two and a half years prior to the Medical Assessor’s assessment of the appellant’s impairment.
With respect to the Medical Assessor’s rating of the appellant’s impairment in CPP, the respondent submitted that the Medical Assessor provided a detailed explanation for her assessment, which included why her assessment differed from that which Dr Khan had made. The respondent submitted that the history the Medical Assessor obtained supported a Class 2 rating. The respondent submitted that the Medical Assessor’s rating was based on her clinical judgment and her findings from her examination and the history she obtained, and that her rating was not glaringly improbable.
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.
Section 323
The Appeal Panel does not accept the submissions of the appellant to the effect that the Medical Assessor was required to apply paragraph 11.10 of the Guidelines. Paragraph 11.10 instructs a Medical Assessor to calculate a worker’s “pre-existing impairment” using the same method for calculating the worker’s current level of impairment, that is to assess the worker’s “pre-existing impairment” by reference to PIRS. Paragraph 11.10 then instructs the Medical Assessor to subtract “the pre-existing WPI%” from the current level of WPI%. Paragraph 11.10 instructs a Medical Assessor that if the pre-existing percentage of impairment cannot be assessed by that method to then deduct one-tenth of the assessed WPI.
Insofar as those instructions require a Medical Assessor to assess what the degree of a worker’s permanent impairment from a pre-existing condition was immediately preceding the time a worker suffered injury, and then to deduct that percentage level of impairment from a worker’s current level of impairment, then it conflicts with s 323(1) of the 1998 Act. What s 323(1) requires is a determination as at the time a worker’s permanent impairment from an injury is assessed of what the contribution is that a pre-existing condition then makes to the worker’s permanent impairment. Insofar as the pre-existing condition then contributes a proportion of the worker’s permanent impairment from the worker’s injury, there must be a deduction.[2] That assessment must be based on the evidence, and not on assumption or hypothesis, unless it is difficult or costly to determine the extent to which a pre-existing condition does contribute to the worker’s current level of impairment, in which case, in accordance with s 323(2) of the 1998 Act, a Medical Assessor is required to assume the deduction is 10% unless that assumption is at odds with the evidence.
[2] Secretary, Department of Communities & Justice v Lewandowski [2023] NSWSC 334 at [54]; Fardell vClinton Industries Pty Ltd [2022] NSWSC 111 at [81]; Marks.
In other words, a Medical Assessor cannot assume that the degree of impairment of a worker from a pre-existing condition immediately preceding the worker suffering injury, relative to the degree of impairment of the worker at the time of assessment, is the deductible proportion for the purposes of s 323(1). Insofar as paragraph 11.10 instructs a Medical Assessor to adopt that as the method by which to make a deduction under s 323(1), it conflicts with the requirements of s 323(1) and cannot be applied.
Whilst the Medical Assessor was correct not to apply paragraph 11.10 of the Guidelines, the Medical Assessor nevertheless, as the appellant submitted, took no account of her pre-existing ADHD when considering whether a deduction should be made under s 323(1). Her ADHD was a pre-existing condition, even though it was not diagnosed until after her injury. The Medical Assessor ought to have discussed whether or not that pre-existing condition was contributing a proportion of the appellant’s permanent impairment from her injury. The Medical Assessor indicated that the appellant’s pre-existing ADHD was a factor relevant to the appellant’s capacity in CPP, in that the Medical Assessor noted that the appellant’s attention had improved through treatment of her ADHD, but beyond that the Medical Assessor did not indicate whether and to what extent the appellant’s pre-existing condition of ADHD contributes to her permanent impairment. Her failure to engage with that issue and to explain whether or not the appellant’s pre-existing ADHD contributes to her current permanent impairment is an error, such that the MAC contains a demonstrable error.
The Appeal Panel also notes that the Medical Assessor made a further error regarding the deduction she made under s 323(1), which neither party identified in their respective submissions, and that is that the Medical Assessor, having identified the appellant had a pre-existing condition of depression, approached the issue of whether a deduction was required to be made on account of that pre-existing condition on the basis that that pre-existing condition “pre-disposed” the appellant to “an exacerbation of her depressive symptoms” and led to her developing post-traumatic stress disorder. The Medical Assessor has assumed, because the appellant’s pre-existing condition made her susceptible to suffering injury, that the pre-existing condition must contribute to the appellant’s permanent impairment from her injury. The Medical Assessor’s focus was wrongly on the extent to which the appellant’s pre-existing condition was a factor in the occurrence of her injury, rather than the extent to which it contributed to her impairment at the time of assessment.
Paragraph 1.32
The Appeal Panel accepts the appellant’s submission that the Medical Assessor did not explain why paragraph 1.32 of the Guidelines did not apply such that a percentage WPI could not be added to her assessment of the appellant’s permanent impairment from her injury.
Deciding whether paragraph 1.32 of the Guidelines applies requires consideration of three matters:
“1. Whether there has been effective long-term treatment of a workers’ illness or injury;
2. Whether, if so, that treatment has result in apparent substantial or total elimination of the workers’ permanent impairment;
3. Whether, if so, the worker is likely to revert to the original degree of impairment if treatment is withdrawn.”[3]
[3] Zoric v Secretary, Department of Education & ORS [2024] NSWSC 131 at [59]; Peachey at [57]; Marks at [29].
The Medical Assessor noted in the MAC that the appellant’s treatment for her pre-existing condition of ADHD had been effective, but other than that the Medical Assessor did not discuss or reveal whether the appellant’s treatment of her psychiatric illnesses had been effective. Further, other than with respect to the appellant’s treatment of her pre-existing condition of ADHD, the Medical Assessor did not indicate whether the appellant’s treatment had resulted in apparent substantial total elimination of the appellant’s permanent impairment and, consequently, she also did not discuss whether the appellant’s permanent impairment was likely to revert to the original degree of impairment if treatment was to be withdrawn.
Simply put, the Medical Assessor, other than with respect to the appellant’s treatment of her pre-existing condition of ADHD, did not detail in the MAC that she had engaged in the process required by paragraph 1.32 of comparing the appellant’s permanent impairment now and her impairment post-injury but prior to treatment, so as to assess whether the appellant’s treatment has been effective and whether if were withdrawn the appellant’s impairment would revert to her pre-treatment state. That lack of explanation also is an error that amounts to a demonstrable error.
Travel
The Appeal Panel considers there is no error in the Medical Assessor’s rating of the appellant’s impairment in travel. The examples provided in Table 11.3 for a Class 2 rating are, “mild impairment: can travel without support person, but only in familiar areas such as local shops, visiting a neighbour”. The Medical Assessor obtained a history that the appellant is able to drive on her own to nearby locations without support. The Medical Assessor also obtained a history that the appellant recently went on a trip to the Snowy Mountains.
As the respondent submitted, the Medical Assessor was not required to adopt the history that Dr Khan obtained nearly two and a half years prior to the Medical Assessor examining the appellant. Indeed, the Medical Assessor was clearly aware of the history that Dr Khan obtained, given that she referred to Dr Khan’s report in various parts of the MAC. The Medical Assessor was entitled to give pre-eminence to the history she obtained over the dated history of Dr Khan.
The matters the Medical Assessor detailed for her rating of the appellant’s impairment in travel squarely align with an impairment of the severity described by the examples for a Class 2 impairment. The Medical Assessor consequently did not err in the exercise of her clinical judgment by rating the appellant’s impairment in travel as Class 2.
CPP
The Appeal Panel accepts the appellant’s submission that the Medical Assessor did not provide adequate reasons for her rating of the appellant’s impairment in CPP and what reasons she did provide indicate that her rating is wrong.
The descriptors provided in Table 11.5 for a Class 2 impairment for CPP are:
“Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding task for periods of up to 30 minutes, then feels fatigued or develops headache.”
The descriptors provided for a Class 3 impairment are:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans) make significant repairs to motor vehicles, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Appeal Panel observes that the Medical Assessor remarked, when comparing her rating to Dr Khan’s rating, that she found the appellant did not exhibit any short-term memory issues or had any difficulty in recollecting information during her assessment but the Medical Assessor did not indicate anywhere in the MAC the duration over which her examination of the appellant occurred. Absent that detail, it cannot be known to what extent the appellant’s exhibited lack of difficulty in recollecting information over the period of examination indicates she has no deficiency in her CPP.
Further, the Medical Assessor did not address to what extent the appellant is able to follow instructions or able to apply herself to tasks that would involve some level of intellectual rigour. That which the Medical Assessor did disclose in the PIRS rating form indicates that the appellant would have difficulty, such that the severity of her impairment in CPP would align with the descriptors provided for a Class 3 impairment in Table 11.5.
The Appeal Panel considers that the Medical Assessor’s inadequate reasoning for her rating amounts to an error such that the MAC contains a demonstrable error.
Re-examination and assessment
As previously mentioned, the Appeal Panel considered it needed further clinical data and to obtain that clinical data it needed to re-examine the appellant and it appointed Medical Assessor Blom to do that. His report to the Appeal Panel from his examination of the appellant is this:
“1.The workers medical history, where it differs from previous records
History of the Injury.
Ms Thomson confirmed but further elaborated the history taken by Dr Verma. That is she began working at Catholic Care from about 2014 and began to have significant difficulties from 2017. The first incident involved her accompanying the police and a child who was a resident of the care home, to search for a gun allegedly hidden by a person who had assaulted the child. Ms Thompson experienced substantial anxiety and subsequently developed nightmares and became more hyper-alert. Unfortunately, the above issue was followed by multiple traumatic incidents, including her being followed after leaving the care home by a couple of men - a situation that which she found very frightening. She was also assaulted on several occasions, on one occasion sustaining broken ribs. She was exposed to multiple assaults within the home as well as deliberate self-harm by the residents of the home. In 2018 she was confronted with a young girl who had cut her own throat. As a result of these repetitive, traumatic incidents she began to develop increasing anxiety and hypervigilance. She also felt that she was not supported by the management of the home and as a consequence of all of the above she did not feel safe. She began to develop checking behaviour at home, particularly checking locks and windows. She became more isolated and avoidant and generally said that she felt unsafe everywhere. Eventually she left work in June 2019 and has not returned since. She said that early in her course of symptoms beside the above described symptoms, typical of PTSD, she also developed depressive symptoms, associated with low mood including reduction in motivation, feelings of hopelessness and significant guilt however she was very clear that once she was initiated on antidepressants that her depression resolved reasonably quickly and has not been a substantial cause of her ongoing symptoms or impairment. She acknowledged that she had had previous episodes of depression and was very clear that how she felt currently, and indeed not long after starting her anti-depressants was quite qualitatively different to the feelings of depression she previously experienced. In particular, she said she does not experience the black emptiness or deep hopelessness of her previous disorder. When I clarified her experience of guilt, she said that this was related to the impact of her current disorder on her family. This appeared to be reasonably comprehensible guilt rather than the typical excessive and inappropriate guilt of severe depression.
2.Past History.
Ms Thomson said that she first experienced depression following prolonged conflict with her brother that started in the late 1990s. She eventually consulted her general practitioner in around 2002 because of ongoing chronic depression. She was started on the antidepressant venlafaxine and said that her symptoms settled reasonably quickly. She remained on the antidepressant for about one year she thought.
In around 2004, she experienced a stillbirth, and as a result again developed depressive symptomatology. This was characterised by reduction in mood, loss of motivation and energy and feelings of hopelessness and despair. Anxiety was not the most prominent symptom. Again, she was initiated on venlafaxine and remained on it, she thought for about another year. She said she had a rapid and reasonably complete remission after initiation of the antidepressant.
She then remained well then until a round 2011 when she gave birth to her third child, Harrison. Whilst she said that she had not experienced postnatal depression after her previous two children (now aged 30 and 18) she experienced significant postnatal depression after this birth. Unfortunately, she did not seek treatment for about one year after the birth, that is around 2012, when she was again initiated on venlafaxine, again at a dose of 75 mg/day (she had only ever used low-dose venlafaxine for each of her depressive episodes). Given the severity and chronicity of this episode she remained on the venlafaxine until around 2014, approximately the time when she began working at Catholic Care. She said that she felt able to cease the antidepressant at this time because she was pleased to be back at work having taken time off to assist her son in his early years.
She restarted the venlafaxine in 2017 with the onset of the symptoms described above. Because of the severity of her anxiety symptoms and depressive symptoms at this point, she was trialled on higher doses of venlafaxine, increasing the dose as high as 300 mg/day. She said however she experienced significant side-effects with this dose, specifically a feeling of numbness and emotional disconnection, and so the dose was eventually reduced to 75 mg/day which she has found effective.
She was diagnosed with ADHD in 2019 by her psychiatrist Dr Gerlich. A checklist was included in the brief of evidence and showed significant difficulties particularly with hyperactivity, impulsivity and distractibility. Ms Thomson confirmed these symptoms and said that whilst she had never been aware that she had ADHD as a child, she does recall being quite hyperactive and impulsive and she experienced some minor disciplinary issues at school. She also said that she had been distractible but had enjoyed reading and been able to read for at least 30 to 60 minutes when required. Since starting the Ritalin, she said that the primary change that she noted is a reduction in hyperactivity. This appears to have been particularly the sense of a driven agitation which had been present most of the time. She continues to experience agitation, but this is notably triggered particularly by contact with other people, leaving the house or being confronted with any kind of traumatic injury. She was clear that it had a different quality to the driven agitation she experienced prior to the initiation of Ritalin.
3.Additional history since the original Medical Assessment Certificate was performed
Ms Thomson stated that there had been no significant change in her circumstances since the previous Medical Assessment. She had not experienced any traumas, life disturbances or other substantial changes which might affect her symptoms or impairment.
She said that there had been no notable change in either her symptoms or her impairment, since the Medical Assessment, as a result of her ongoing treatment.
4.Current Symptoms.
Ms Thomson was very clear that her primary symptom was that of anxiety which she said that she experiences from the moment that she wakes up. She said that her anxiety becomes particularly bad in the evening and that she is frightened to go to sleep because of the nightmares that she has on most nights. She often wakes in panic from these nightmares. She has significantly disturbed sleep, with both initial insomnia and interval insomnia usually related to her nightmares.
She said she remains constantly hyper-alert, feeling on edge and fearful. As a result, she has developed avoidance and withdrawal as a manner of coping and allowing her to feel “safe”. She said that if people come to her house, she often finds herself becoming agitated, irritable and on occasions will dissociate – that is become emotionally numb and have brief periods of “blanking out” where she becomes disconnected from her surroundings. As a result, she often withdraws to her room when people visit.
She is easily triggered into anxiety and rumination, as well as reexperiencing phenomena. These tend to occur when she is exposed to any form of trauma for example on television or newspapers and so she scrupulously avoids these.
She experiences some mood symptoms clearly associated with her PTSD. She has a degree of reduction in her mood but particularly experiences feelings of guilt, as outlined in the above history. Occasionally this feeling of guilt become so problematic, because she feels such a burden on her family, that she has suicidal ideation, although she said she would never act on this. She said she is sometimes fatigued during the day as a result of insufficient sleep but that this is different to a previous loss of energy. She has gained weight, approximately 15 kg which she attributes (most likely accurately) to the use of a olanzapine (she takes between five and 10 mg/night).
She has significant problems with concentration and generally struggles with her memory. She said that she is unable to read for more than a few sentences because she cannot follow what she is reading and has to repetitively re-read. She said generally she struggles to understand written material in a way that she didn’t prior to her injury. She does not watch TV in part because of fears of being triggered, but also because even if she watches a “safe” show she struggles to follow even a drama lasting a half hour. She phases out, is distracted and loses the plot. I note that Dr Verma also reported these issues but also commented that she did not notice any impairments or difficulty recollecting information during the assessment. While Ms Thomson was able to attend throughout my assessment lasting about 60 minutes, she was certainly distractible and had difficulties with memory. Given the range of symptoms that she describes, quite typical of PTSD, and her description of difficulties in reading and focusing outside of the interview I am inclined to accept these descriptions. While being able to repeat a story that one has repeated multiple times in multiple interviews, does demonstrate some elements of concentration, persistence and pace, in Ms Thompson’s case I do not believe that this captures the full range of her impairment and accept her description of difficulties in other situations, which have been confirmed in multiple other interviews.
5.Current Treatment.
Dr Gerlich, her psychiatrist is Ms Thomson’s primary source of psychiatric management. She consults Dr Gerlich every two weeks for both psychiatric care and psychological management. Her current medications are:
venlafaxine – 75 mg/day.
Agomelatin – 50 mg/night.
Prazosin – 6 mg/night.
Ritalin SR – 40 mg/day.
Olanzapine – 5 – 10 mg/night.
Diazepam – 5 – 10 mg, as required during the day.
Metformin – 500 mg/day. She has recently started this as she has developed prediabetic condition.
6.Effect of Treatment.
The primary improvement that Ms Thomson has experienced has been a virtual amelioration of her depressive symptoms which appear to have been resolved within months of her initiation of venlafaxine. This is not consistent with the other medical reports but I raised this issue with her and questioned her closely about her depressive symptoms and she remained quite insistent in her assertion that her depressive disorder, as she understands it, that is in comparison with her depression prior to her injury, was not a significant issue for her currently.
She said that her anxiety and other PTSD related symptoms continued to trouble her and were the primary source of her difficulties. She feels that there has only been very modest improvement in these symptoms. She said that she thought that she was less overall agitated primarily as a result of the Ritalin, but that this improvement in agitation was a loss of an inner drivenness when she was feeling safe (meaning usually being alone), although she still experienced agitation and distress when triggered or with others. She also said that with the initiation of prazosin her nightmares were less intense and less frequent although as described are still reasonably frequent. She said she occasionally has ‘better days’, where her symptoms are less severe, but these remain infrequent. It is apparent that there has not been any substantial elimination of her primary symptom that is PTSD, although there appears to have been an elimination of her depressive disorder on the history that I have taken the day, confirmed by my mental state examination. It is likely that were her current medications to be withdrawn that she would develop a significant depressive disorder.
7.Findings on clinical examination
Ms Thomson was seen via videoconference. The quality of the streaming was good, and I was able to perform my examination without any difficulties. Ms Thomson had no problem managing the audiovisual connection.
She was a woman who appeared her stated age although she looked drawn and slightly haggard. She was tense and anxious but was able to engage with the interview.
She had an appropriate range of affect, and in particular there was no obvious flattening of affect. She was able to smile appropriately and on another occasion was tearful when reflecting on how much her symptoms had impacted her life. She did not appear depressed. She did express guilt but this did not appear inappropriate or excessive, but rather appeared to reflect her genuine concerns about the impact of her illness on her children and husband. She, somewhat in passing, mentioned that she occasionally had suicidal ideation again reflecting her sense of being a burden on her family, but I did not feel that she was at risk of acting on this.
She was anxious, tense and somewhat distractible. She had difficulties with memory of chronology and the course of events.
There was no evidence of psychosis, in particular no evidence of hallucinations, delusions or formal for disorder.
She presented as an honest witness, who attempted to her best ability to engage with the interview and to give a clear and straightforward history as far as she was able. Her cognitive function was consistent with her level of symptomatology and did not reflect, I thought, any evidence of organicity.
8.Diagnosis.
1. PTSD – chronic. This diagnosis is made because of the presence of multiple events involving real injury and threat of injury to self and others, the presence of re-experiencing phenomena, hypervigilance, avoidance phenomena and mood and cognitive disturbance associated with the above. These symptoms are causing significant impairment. This is her primary diagnosis.
2. Major Depressive Disorder– in remission. It is clear from her history that Ms Thomson experience depressive disorder in the past and had a recurrence of this early in the course of her current illness, but this appears to have resolved based on the history that she gave me today, as a result of treatment that she has undergone.
3. ADHD – stabilized. I accept the diagnosis made by her treating psychiatrist Dr Gerlich. From her description it would appear that there has been significant improvement with the introduction of Ritalin
9.Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations
Signed : Dr Graham Blom”
The Appeal Panel considers that Medical Assessor Blom conducted a thorough examination of the appellant and obtained a detailed history relating to all relevant issues. The Appeal Panel accepts the history Medical Assessor Blom obtained, his descriptions of the respondent’s current symptoms, his findings regarding the respondent’s treatment, his findings from his clinical examination of the appellant and his diagnoses.[4]
[4] Coco-Cola Euro-Pacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
Based on Medical Assessor Blom’s report, the Appeal Panel rates the appellant’s impairment in CPP as Class 3.
This is because, firstly, the appellant is unable to read more than a few sentences at a time due to being unable to follow what she is reading. She needs to read again what she has read. Her comprehension of written material is not the same as it was prior to her injury.
Secondly, the appellant now does not watch TV partly because she is distracted and loses the plot. Medical Assessor Blom found the appellant to be distractable over the course of the 60 minutes he examined her and she had difficulties with her memory. This indicates that the appellant would have difficulty following complex instructions and being able to read anything of significance.
These matters reveal an impairment in her CPP of the severity described by the descriptors for a Class 3 impairment.
The Appeal Panel also considers what while the appellant’s ADHD is well controlled with treatment it nevertheless is likely to contribute to her permanent impairment in that it is likely to have an adverse effect on her concentration and pace and so consequently it affects her capacity in CPP. Treatment of ADHD frequently improves CPP capacity but usually there are residual impacts of the disorder and this is very likely the case here.
The Appeal Panel finds, based on Medical Assessor Blom’s report, that the appellant’s depressive disorder has now essentially resolved, and this is because it is being effectively treated. It does not now contribute a proportion to her permanent impairment from her injury.
As discussed earlier, the fact that the appellant’s pre-existing condition of major depressive disorder was a factor in the occurrence of the appellant’s work injury is not, of itself, sufficient to warrant a deduction being made under s 323(1) for it. What is required is that that pre-existing condition now contributes to the appellant’s permanent impairment from her injury. To repeat, it does not currently do so because it is resolved due to effective treatment and does not affect the appellant’s present capacity.
The Appeal Panel also notes that the fact that neither party raised as an issue in their respective submissions the approach the Medical Assessor adopted when applying s 323(1) with respect to the appellant’s pre-existing depressive disorder and the fact that she made a deduction on account of that does not mean that the Appeal Panel has to adopt what the Medical Assessor did. This is because the Appeal Panel has reassessed the degree of the appellant’s permanent impairment, so as to correct the error the Medical Assessor made with her rating of the appellant’s impairment in CPP, and thus the Appeal Panel must conduct afresh the comparative exercise relating to the contribution that the appellant’s pre-existing condition contributes to the appellant’s degree of permanent impairment from her injury as assessed by the Appeal Panel.[5]
[5] Pombinho at [86].
The Appeal Panel considers it is difficult to determine with any degree of exactitude the extent to which the appellant’s pre-existing ADHD now contributes to her permanent impairment from her injury. As said, the Appeal Panel is satisfied that it does contribute. Given that it does, and given that it is difficult to assess precisely the contribution, the Appeal Panel assumes in accordance with s 323(2) that the deductible proportion for the purpose of s 323(1) is 10%. That assumption is not at odds with the evidence.
The Appeal Panel also considers that paragraph 1.32 of the Guidelines is engaged in this case. This is because the appellant has had effective treatment for her ADHD, which has alleviated substantially the symptoms she has from that disorder, and also has had effective treatment for her major depressive disorder, such that that disorder is essentially now resolved.
The Appeal Panel notes that the appellant was not at the time she suffered her work injury being treated for her ADHD. Her treatment for that pre-existing condition commenced subsequent to her suffering her work injury.
The Appeal Panel finds that the appellant’s treatment of her ADHD and her major depressive disorder has resulted in a substantial elimination of her permanent impairment. Without that treatment her permanent impairment would be more severe than it presently is in that her cognitive deficits would be far greater and she would have a much worse mood if treatment be withdrawn and would likely experience sleep disturbance, reduction in motivation and reduced energy. It would likely result in a worsening of her function in most aspects of her life. The Appeal Panel also finds that if the appellant’s treatment for her ADHD and major depressive disorder were to be withdrawn, the appellant’s degree of permanent impairment would worsen and be at least as severe as it was before she commenced her treatment.
In the circumstances, the Appeal Panel adds 2% WPI pursuant to paragraph 1.32.
In summary then, the corrections the Appeal Panel makes are, firstly, rating the appellant’s impairment in CPP as Class 3, which means the median of her class scores increases to 3 and the aggregate to 17, which, in accordance to Table 11.7 of the Guidelines converts to 19% WPI. Secondly, the Appeal Panel combines 2% WPI with that, pursuant to paragraph 1.32 of the Guidelines, which produces 21% WPI in accordance with the combined values chart in AMA5. Lastly, the Appeal Panel deducts 10% from that pursuant to s 323(1), which when rounded, produces 19% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2024 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: | W5205/22 |
Applicant: | Michelle Thomson |
Respondent: | Trustees of the Roman Catholic Church for the Diocese of Broken Bay |
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 Surabhi Verma 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 condition | 30/11/2021 | Chapter 11 | - | 21% | 1/10 | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
1
6
0