Tilley v Secretary, Department of Communities and Justice
[2024] NSWPICMP 738
•24 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tilley v Secretary, Department of Communities and Justice [2024] NSWPICMP 738 |
| APPELLANT: | Francis (Frank) Tilley |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 24 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from decision of Medical Assessor (MA); whether assessor made obvious error or used incorrect criteria in making assessment of psychological injury; Held – MA erred in making a deduction of the permanent impairment arising from the accepted psychological injury pursuant to section 323 by reference to pre-existing physical conditions suffered by the appellant; the methodology adopted by the MA in applying the section 323 deduction was incorrect; Medical Assessment Certificate revoked and new certificate issued following re-examination by Medical Appeal Panel. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 May 2024, Francis (Frank) Tilley (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Stephen Yeates, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 April 2024.
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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury with a deemed date of 12 March 2019. The fact of the injury is not in issue, and his claim for lump sum compensation was declined by Secretary, Department of Communities and Justice (the respondent) only on the basis the appellant’s permanent impairment did not meet the threshold set out in s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act).
There is no question the appellant suffered pre-existing physical impairments. His diabetes-related visual impairment was identified several years before the injury at issue, at which time the appellant was moved from prison duties to the supervision of maintenance work. The appellant also admits to having drunk alcohol to excess in an effort to self-medicate after seeing many traumatic events during his career in the NSW prison system.
Despite his visual impairment, there is no issue the appellant continued to work for several years for the respondent until his psychological injury. The injury is said to be precipitated by his being told by the manager of industries at the prison that the appellant could not be kept at work as he was a danger to himself and the inmates.
The appellant last worked on 12 March 2019, and was medically retired due to his psychiatric injury in 2021. He brings these proceedings seeking payment of permanent impairment compensation and relies on the report of independent medical examiner (IME) Dr Teoh in claiming a 22% whole person impairment (WPI).
By s 78 notice dated 4 January 2024, the respondent denied liability to pay lump sum compensation, alleging the appellant did not reach the relevant threshold of permanent impairment. It relied on the report of Dr Ahmed, IME who assessed the appellant as suffering from a 22% WPI, but applied a 90% deduction pursuant to s 323 of the 1998 Act, leaving a final impairment rating of 3%.
The matter was referred to Medical Assessor Dr Yeates, who issued a MAC on 23 April 2024. Medical Assessor Yeates diagnosed a major depressive disorder. He assessed the appellant as suffering a 22% WPI, however, he made a 50% deduction for the appellant’s non-alcoholic steatohepatitis and alcohol-related liver disease that has resulted in liver psoriasis together with associated cognitive impairment and for the appellant’s visual impairment.
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 the Appeal Panel found error on the part of the Medical Assessor in that he had conflated the effects of physical conditions and applied them as the basis for making his s 323 deduction. In order to remedy that error, the Appeal Panel determined that the appellant should be re-examined to assess the impairment arising from the injury and any deduction applicable for pre-existing psychological or psychiatric condition.
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
Medical Assessor Dr Michael Hong of the Appeal Panel conducted an examination of the worker on 9 October 2024 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.
In summary, the appellant submits that the appellant’s visual impairment was identified many years before the injury at issue, and he was able to continue working. He submitted the Medical Assessor demonstrably erred in finding the appellant’s medical retirement was heavily affected by his visual impairment, as the retirement was as a result of the psychological injury at issue, rather than the visual impairment which with which he worked for over five years. The appellant also submitted the Medical Assessor used incorrect criteria in making his Psychiatric Impairment Rating Scale (PIRS) assessment, including relying on the appellant’s visual impairment as a basis for applying a s 323 deduction of 50% to an accepted psychological injury.
In reply, the respondent submits that the matters relied on by the appellant to assert demonstrable error are factual matters taken into account by the Medical Assessor and available to him as a basis for making his findings. The respondent submitted it was open to the Medical Assessor to make the 50% deduction for the appellant’s co-morbidities of advanced liver disease and visual impairment. It submits the Medical Assessor did not make any demonstrable error or apply incorrect criteria.
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 Medical Assessor erred in relying on physical impairments as the basis for a deduction under s 323 relating to a psychological injury. In evaluating the appellant’s impairment, the Medical Assessor answered as follows at Part 8 of the MAC:
“…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
f. If so, please indicate which body part/system is affected by the previous injury, preexisting condition, or abnormality.
Mr Tilley has features of non-alcoholic steatohepatitis and alcohol-related liver disease that has resulted in liver psoriasis. He has associated cognitive impairment that is attributable to this and accounts for a degree of his concentration deficit. It also confounds the ability to assess his Demotivation and concentration deficits that might be attributable to major depressive disorder.
Mr Tilley also has a substantial visual impairment, which could be presumed to affect his overall quality of life and his function, thus also confounding a psychiatric impairment rating calculation.”
The Medical Assessor then described the conditions which formed the basis for the s 323 deduction at [11] of the MAC as follows:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Non-alcoholic and alcohol related steatohepatitis leading to liver cirrhosis and several decades of alcohol consumption.
(ii) Type 2 diabetes mellitus leading to visual impairment.
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)Mr Tilley has a concurrent neuropsychiatric and cognitive deficit which contributes to his overall presentation and was likely implicated in his occupational difficulties.
(ii)Mr Tilley’s visual impairment affects his overall quality of life over-and-above his workplace events.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion, the deductible proportion is 1/2 for the following reasons:
(i) It is probable Mr Tilley’s physical ailments strongly contributed to his inability to keep working and his overall burden of impairment.
(ii) Whilst there is evidence of a depressive syndrome, it is multiply determined with multiple non-workplace contributors including:
a. Type 2 diabetes mellitus leading to legal blindness via diabetic
retinopathy.
b. Advanced liver disease from non-alcoholic and alcoholic liver
impairment. This has led to cognitive deficits, concentration difficulties, daytime somnolence and overall quality of life issues.
The sum of these contributors makes calculating WPI very difficult, but a deduction of 1/10th is inappropriate and at odds with the evidence. I have ascertained a deductible proportion of ½.”
The Medical Assessor erred in his approach to applying the s 323 deduction in that he calculated the appellant’s total WPI arising from the psychological injury, then apportioned half of the global total to the pre-existing physical condition. The role of the Medical Assessor is to determine the impairment arising from the psychological condition alone. In this instance, the Medical Assessor has conflated the pre-existing physical conditions with the process of applying a s 323 deduction to the psychological injury. Such error infects all six categories identified in the PIRS ratings, and for this reason the Appeal Panel determined a re-examination was appropriate. The findings on re-examination are set out as follows.
HISTORY RELATING TO THE INJURY
Brief history of the incident/onset of symptoms and of subsequent related events, including treatment
Mr Tilley confirmed when he grew up there was physical violence from his father, although it never caused him to develop a psychiatric condition and he has never needed therapy for it.
He confirmed drinking alcohol to excess. This was between 8 to 12 drinks a day and he drank daily, for maybe 20-30 years. He said that he stopped drinking altogether around three years ago because he felt like "rubbish", he was having health problems and developed liver problems. We discussed the records in his general practitioner (GP) file and noted that in 2016, the GP had counselled him to reduce his alcohol consumption due to liver impairment at that time, and he said that over the years his GP always told him to give up alcohol but he never did anything until about three years ago.
Mr Tilley was married and said that they separated maybe 20-30 years ago. He reported his ex-wife calls him and they have an amicable relationship. He has three sons who are all adults now.
In terms of Mr Tilley's work injury, he confirmed having joined the respondent in 2001 and worked as a corrective officer with inmates, and also in intelligence. He was exposed to trauma as a corrective officer and described symptoms consistent with post-traumatic stress disorder.
He developed diabetic retinopathy and was declared legally blind about eight or nine years ago, he continued working with support.
Mr Tilley stopped working in 2019 and there were several stressors at work, including changing accommodation arrangement, which is part of his employment package, subsequent vendetta and bullying/harassment. He was assigned child sexual offender work which he never really liked and was not supported doing the work. He said he was picked on by a group and gave a detailed history of the workplace problem that led to him stopping work.
Present treatment
Mr Tilley's medications are in a Webster pack and he does not know what his psychotropic medications are. He said some medications have changed over time. His psychologist retired and he has a new psychologist, and has had four sessions so far and does not remember the name of the new psychologist.
Present symptoms
Mr Tilley reported chronic anxiety and depressive symptoms, intrusive memories and nightmares related to work and sometimes bizarre and frightening situations, e.g. blown up by a bomb. His anxiety and depressive symptoms have not changed since the previous assessment.
He reported ongoing irritability and major concentration and memory problems. He has sleep problems at night and sleeps during the day.
His weight has been stable in 2024, as his carers ensure he eats regularly.
In terms of Mr Tilley's vision, he said that he walks without using a cane, and he can watch the television about three meters away. He has never been a book reader. He said that when he watched television he can comprehend it, but he would not be able to read the teletext or subtitle. He often gets bored and struggles with concentration when watching TV.
Social activities/activities of daily living (ADL)
Mr Tilley is 65 and living on his own. NDIS (National disability insurance scheme) package was approved when he was still working due to his vision impairment. It was a very small package which was only about $2,000 a year.
Since he stopped working, the package had increased and early in 2024, he had a support worker visiting four days a week. Around four or five months ago the package was increased further. Now he has support seven days a week, four hours a day from Monday to Friday and one and a half hours on Saturday and Sunday.
His support worker was present during the entire assessment and helped with information regarding the NDIS and daily support.
He generally listens to music, and when the carers come and set up radio or internet radio on his computer, he listens to that too.
His three sons are not close by, with the twins living in the Hunter Valley. He calls them sometimes but said it often goes to voicemail, and then they will call him back. He said they do not visit him much because they are busy with work. He also does not want to talk to them much because he finds that he says “stupid things” and he struggles with having conversations.
Mr Tilley used to have regular contact with his friends but reported that after he stopped working, everybody dropped off because they were all work related.
Mr Tilley's NDIS support worker comes every day to help him with insulin injections. He has been on insulin for two or three years but he struggles to read and to dial up the right amount. Since they started helping him with insulin, he says he has not had episodes where he needed to go to a hospital. Before he had a daily support worker, he was often "having turns and spaced out", although it is difficult to be clear exactly what these episodes are.
He said the support worker pushed him to have exercise every day.
He forgets to eat and leaves things in the microwave and his sugar level becomes too high or too low. His carer has to prompt him to eat, shower and help with all the household chores and cleaning up.
Mr Tilley reported that he still goes out on his own if he needs something. Two weeks ago he went to Maroubra Junction but he fell into the gutter, and then a young man and his girlfriend came to help him. He sustained a broken wrist.
He often sleeps for two or three hours in the daytime.
He has been a member of the South Junior Leagues club for more than 20 years and likes to go there, and usually goes dancing every Saturday. Recently he goes to the club with his carer and uses a treadmill and “trains” there for about half an hour. After that they have coffee downstairs. Sometimes he talks to people at the club but generally he does not. He said he used to know all the football players but not now. Mr Tilley still goes dancing on Saturday when there is an NDIS support worker approved, but because there is no regular approval, he only goes every couple of months now, which he still enjoys and this has been a long-term enjoyment for him.
FINDINGS ON PHYSICAL EXAMINATION
Mr Tilley was assessed by video. He was at home and his support worker, Louise Walker was present during the assessment.
Mr Tilley had short greying hair and was clean-shaven. He was neatly attired in a collared shirt and jacket. He wore his hearing aids and reported the computer’s volume was low, so many questions were repeated to ensure comprehension. He could see me on the computer without glasses. He engaged well with the assessment process. He was moderately restricted in his affect range and reactivity. He spoke spontaneously and gave a clear history of his work injury. He had a disorganized narrative and was not thought disordered.
SUMMARY
Summary of injuries and diagnoses
In summary, Mr Tilley described having consumed long-term excessive alcohol with evidence of alcohol-related impairment and repeated attempts by a GP for counselling regarding alcohol overuse, consistent with a pre-existing alcohol use disorder.
Due to the events at work, he sustained a psychiatric injury, consistent with post-traumatic stress disorder and Major depressive disorder and has had treatment appropriate for it. His alcohol use disorder continued for a period of time after his work injury, and he has now been abstinent for about three years. However, the long-term alcohol-related cognitive deficit has persisted and this is intermingled with cognitive impairment arising from his post-traumatic stress disorder and Major depressive disorder.
In addition, he has several physical conditions which are not assessable by a psychiatrist.
The Appeal Panel found Mr Tilley's overall impairment quite similar to that found by the Medical Assessor, except in the area of social recreation functioning, where he maintains occasional recreational activities at the club, which has altered somewhat over time because of the need for a carer to be out, but that is due to his physical restriction which is not assessable in the PIRS, and therefore his psychiatric impairment is consistent with a mild impairment.
Mr Tilley's psychological symptoms are stabilized with appropriate treatment, and not likely to alter to a substantial degree in the next 12 months.
DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(a) there was a pre-existing condition, which was consistent with an alcohol use disorder.
The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the WPI that results from the injury, being the matters taken into account in 10a, and in the following ways:
(a) Mr Tilley's pre-existing condition contributed to his current impairment, because he has pre-existing alcohol use disorder, with alcohol-related cognitive impairment continues to affect him now. Without the pre-existing alcohol use disorder, his current psychiatric impairment would not be as great.
The extent of the deduction is difficult and/or costly to determine and this is a minor contribution, as he was capable of continuing work full-time, despite his pre-existing condition, until he was traumatized and bullied at work. The deductible proportion is assessed as one-tenth, and this is not at odds with the available evidence.
Table 11.8: PIRS Rating Form
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
3
Mr Tilley does not eat properly, and his blood sugar level management is poor without prompting. His carer supervises his medications in a Webster pack. With prompting, he has maintained a stable weight and blood sugar level. He needs prompting to shower. Therefore, psychologically he is not capable of independent living.
Social and recreational activities
2
He had regular social recreational activities with his carer. Before he had a carer, he was going to the club by himself and a similar pattern has continued around 20 years, although his attendance and participation has decreased overall since the work injury. Recently, he goes daily to the club with his carer.
Mr Tilley's physical injuries and pain are not assessable in the PIRS and from a psychological perspective, he does not need a carer to enjoy dancing.
Travel
2
Mr Tilley is anxious and avoids being out, and can go out on his own if needed, but can get lost due to his cognitive difficulties.
Social functioning
2
Mr Tilley's relationship with his ex-wife and children is good overall. He said he has 9 brothers and 6 sisters, but they were never a close-knit family and they talk sometimes.
He is anxious and socially avoidant, and ceased contact with all of his friends, but he does talk to people sometimes if they are at the club, but not always.
Concentration, persistence and pace
3
Mr Tilley described having poor concentration.
He can follow simple TV shows, but is generally forgetful, e.g. with appointment time. He needs support due to his Post-traumatic stress disorder and Major depressive disorder causing moderate impairment in his self-care, and this was rated in self-care and personal hygiene. Purely from the perspective of cognitive impairment caused by his psychological injury, he has moderate impairment.
Employability
5
Mr Tilley has not worked since the work injury and his anxieties, concentration and memory problems impact on his capacity to work and render him incapable of work. He has no work capacity.
Score
Median Class
2
2
2
3
3
5
=3
Aggregate Score Impairment
Total
%
+
+
+
+
+
17
19
Pre-existing injury
One-tenth
Final WPI
17
For these reasons, the Appeal Panel has determined that the MAC issued on 23 April 2024 should be revoked, and a new MAC should be issued following re-examination. 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: | W1807/24 |
Applicant: | Francis (Frank) Tilley |
Respondent: | Secretary, Department of Communities and Justice |
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 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 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) | ||
| Psycho-logical injury | 12/3/2019 | Chapter 11, pages 56-59 | 19% | 1/10th | 17% | |||
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||||
0