UGL Ltd v William Wood
[2024] NSWPICMP 785
•21 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | UGL Ltd v William Wood [2024] NSWPICMP 785 |
| APPELLANT: | UGL Limited |
| RESPONDENT: | William Wood |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 21 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor (MA) erred in failing to consider physical functional limitations in assessing the respective psychiatric impairment rating scale (PIRS) categories, and erred in his assessments under five categories of the PIRS, namely self-care and personal hygiene, social and recreational activities, travel, concentration, persistence and pace, and employability; worker had a primary psychological condition and a secondary one related to his physical injuries; Held – MA had conflated symptoms and signs from both; re-examination took place; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 May 2024 UGL Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 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).
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 we determined that the Medical Assessor erred with respect to his assessments in some PIRS categories, and appeared to have conflated symptoms relating to a secondary psychological condition with the primary injury the subject of appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Michael Hong of the Appeal Panel attempted to conduct an examination of the worker on 17 September 2024 but cancelled the assessment after about 30 minutes due to Mr Wood’s condition at that time.
A further assessment was carried out on 7 November 2024 after which Dr Hong 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 MA erred:
(a) in failing to consider physical functional limitations in assessing the respective Psychiatric Impairment Rating Scale (PIRS) categories, and
(b) in his assessments under five categories of the PIRS, namely Self-care and personal hygiene; Social and Recreational activities; Travel and Concentration, Persistence and Pace (cpp) and Employability.
In reply, William Wood (the respondent) submits that no errors were made, adding that “no argument has been made why any of the categories are in error other than to cavil with the assessment…”
In addition, the respondent submits that if the appeal is allowed to proceed, then he should be permitted to adduce further evidence “to allow the Panel to properly make an assessment of the impairment resulting from the primary psychological injury.”
The nature of that evidence is not disclosed.
The appellant has sought to admit further evidence by way of an Application to Admit Late Documents filed on 24 October 2024 being surveillance material undertaken earlier in October 2024.
The respondent objects in reliance upon Regulation 67 of the Rules.
The Appeal Panel accepts the respondent’s submission.
The documents are therefore rejected.
In any event, the appellant had already undertaken some surveillance of Mr Wood as noted in the Procare surveillance report dated 23 December 2020 to which the MA had access.
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 respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a deemed date of injury of 25 November 2015.
The MA obtained the following history:
“The applicant reported that on 1 April 2014 (deemed) he had suffered a physical injury to his wrists. He said the injury was caused by unregulated sanders that were run by his employer at ‘excessive pressure’.
The applicant had surgery to treat his right wrist in November 2014. He had further surgery to treat his left wrist in April 2015. He had physiotherapy for his hands for five months. He did not recover from the physical injury…
The applicant argued with his partner about his pain and depressed mood, caused by his loss of functioning as a spray-painter. His partner left the relationship as the applicant was unable to provide an income to support her. She completed property settlement with the applicant after she had left the relationship in about 2015. His general practitioner recommended that the applicant attended a pain clinic such as the ‘ADAPT program at Royal North Shore Hospital’. He was not provided with this treatment…
The applicant said he had never experienced bullying and harassment prior to his return to work on light duties. He initially reported that he was provided with his 15% shift allowance for the ‘night work’ he performed whilst being directed by his employer to attend day shift. The applicant then lost his shift allowance. He was directed to sit in a lunchroom. He complained about not being provided with a desk. He was not given any ‘office duties’ that the employment doctor had recommended. The applicant became more distressed due to his isolation from his co-workers. He wanted to return to more physical duties working in a role that did not require him to use vibrating tools. He asked to speak to the employer’s occupational nurse.
The applicant reported that the occupational nurse said, ‘…because you are complaining you can check the toilets twice a day. Are you happy now?’ He was directed to report the finding of graffiti to another co-worker who was also on light duties. The applicant was not permitted to assist with the light duties of graffiti removal with his co-worker. He felt shamed as he continued to be isolated alone in the lunchroom with nothing further to do.
The applicant complained to the HR department. The occupational nurse shamed the applicant whilst talking to the HR manager with her saying, ‘…there was no work for me (the applicant).’ He was returned to ‘…sit in the lunchroom for 8 hours per day. I (the applicant) was not given any tasks to do. There was no TV to watch. I simply sat and did nothing. I found this to be very demeaning.’ He said at the assessment that he felt he had been abandoned and humiliated. He said it was like spending ‘all week at a bus stop! Waiting for a bus that never came!’
The applicant stated his co-workers who would see him sitting with nothing to do. He said he would be called a ‘liar’ and a ‘bludger’. The applicant continued to complain to HR as his allocated duties remained unchanged. The applicant complained to NSW WorkCover. The officer requested that the applicant be provided with appropriate duties. The occupational nurse provided the applicant with a ‘warning’ and stated to him that notifying government services was ‘inappropriate’.
The applicant reported that he would not receive the full pay he was entitled to. The failure to provide full wages became a constant problem with his employer failing to pay the NSW Worker’s compensation ‘make up pay’. In November 2015 he was terminated by his employer.
The applicant was prescribed various medications. His prescription was reported as Desvenlafaxine (Pristiq) up to about 200mg daily. He had also received psychological treatment with cognitive behavioural therapy. He had attended a psychiatrist and psychologist in ongoing maintenance treatment.”
Present treatment was noted as follows:
“The applicant continued in treatment. His prescription was reported as Desvenlafaxine (Pristiq) up to about 200mg daily. He also continued to receive psychological treatment with cognitive behavioural therapy. He had attended a psychiatrist and psychologist in ongoing maintenance treatment.
The applicant remained on gabapentin 300mg at night for treatment of his chronic pain. He had also used other analgesic medication about the time of the surgical treatments. He had not attended a pain clinic. The applicant continued to attend a clinical psychologist at Telopea Medical Centre at the time of this assessment.
The applicant, in 2023, attended GambleAware. This service provided treatment for people with a Gambling Disorder. He had completed the number of sessions that were allotted by Medicare between February to May 2023. He returned to gambling in a pattern that met DSM5TR Gambling Disorder at the time of this assessment.”
Present symptoms were noted as:
“At the time of this assessment, the applicant remained symptomatic with symptoms from Persistent depressive disorder DSM5TR code F34.1 and Gambling Disorder DSM5TR F63.0…”
The MA then set out in considerable detail the specific current symptoms experienced by the respondent in respect of both identified disorders.
He added:
“The applicant was working in his light duties when he suffered this primary psychological injury. He was diagnosed with a chronic pain causing depression. The type of mood disorder was not defined using the DSM5 criteria that was current at the time of onset of the physical injury.
The best definition to describe the injury that developed as secondary to the pain sustained by the physical injury is Adjustment Disorder with depressed mood DSM5TR code F43.21.”
Findings on mental state examination were reported as follows:
“The applicant presented as an unkempt man who looked older than his stated age. His hair was uncombed and unwashed. He appeared sullen and depressed. He was tearful and reported angry emotions when thinking about his lost career.
The applicant had poor concentration and would attempt to avoid thinking about his injuries. He required time to re-compose himself. His concentration was poor. He could not remain on topic. He would avoid eye contact whilst talking about how he felt shamed, guilty and worthless for losing more than $40,000 gambling. He stated his self-esteem was poor. He felt constantly sad and depressed. He said gambling provided him some relief from his persistently depressed mood.
The applicant spoke with a soft volume of speech. His rate and rhythm of speech was slow. He did not report delusional ideas, psychotic symptoms or suicidal thoughts or plans at the time of this assessment. He reported having had suicidal thoughts in the past. He had never acted on his suicidal thoughts. He demonstrated shame when he spoke about his inability to work. He was insightful into his condition and his judgement was normal.”
The MA then turned to consider the impact of Mr Wood’s injury on his social activities and activities of daily living (ADL’s) and said:
“The applicant reported that he had no children. He reported that prior to the primary psychological injury he had been in a stable relationship. He reported that his relationship failed as he was agitated, distressed and frustrated by his inability to recover. His partner separated and the couple settled their joint property. The applicant formed a new relationship with his current partner. The second union commenced in about 2019. At the time of this assessment the applicant was living in his own home. His partner was overseas. He was living with her son and daughter.
The applicant was independent in his self-care and personal hygiene. The applicant’s appetite was poor. He was more reliant on pre-prepared foods. He was unkempt at the time of the assessment. He did little housework or laundry. He relied more on the support of his partner’s two children for assistance. He would assist with light cleaning.
The applicant had lost 10kg in weight due to his use of Semaglutide 1mg subcutaneously weekly. Semaglutide is clinically known to assist with weight loss. The weight loss was not assessed as part of the primary psychological injury. Semaglutide was not assessed as part of the secondary psychological injury. The treatment with Semaglutide is for a physical medical condition not related to the injury causing impairment.
The applicant did report that he was unable to use any vibrating home maintenance power tools. The applicant reported that he was unable to use whipper snippers, hedge cutting tools or other tools that vibrated as he would suffer from pain in his hands from this type of tool. He did not assist with home maintenance that required these types of tools to assist. This impairment secondary to pain was assessed as part of the applicant’s secondary injury.
The applicant reported having ceased socialising in groups. He said he does not socialise at the club where he gambles. He said he does watch television. He would watch shows such as ‘Finding Gold or car shows.’
The applicant said he was a member of a local lawn bowls club. His sister would drive him to the club as he would drink alcohol when gambling. She would not remain whilst he gambled. He did not play lawn balls. He used the club to gamble on poker machines. The applicant reported that he would not socialise with his partner’s children. He does not attend cafes or restaurants with his partner. He does not celebrate any birthdays or other important family events.
The applicant’s frequent attendance to gamble at the local club is not assessed as a social or recreational activity, as attendance at the club relieves his gambling disorder symptoms of restlessness and irritability, as well as reducing his feelings of distress due to feelings of guilt, anxiety and depressed mood. He reported his partner is not aware of him gambling and his gambling debt which he keeps secret from her.
The applicant was asked to describe his experience regarding repetitive movements to operate a poker machine. He said the touch screen operation of the machine did not exacerbate his pain. He said he would also gamble on horse racing.
The applicant was able to travel to local and familiar areas alone. He was able to travel to well-known locations within his local area.
The applicant reported he had not ridden his motorcycle as he would have pain from the vibration of the machine. He reported he had restricted his travel on his motorcycle. This travel restriction was assessed as part of the applicant’s secondary psychological injury.
The applicant reported he had lost his prior relationship due to his irritability, agitation and depressed mood. He reported that he was able to form a new relationship. He said his new partner had commenced living with him for the first time. Her children had also commenced living with the applicant. He reported that there was strain in the relationship. His new partner had returned to her country of origin for holiday at the time of this assessment. The applicant was not expecting to become separated, estranged or the relationship to cease at the time of this assessment. He had lost friendships since the onset of this primary psychological injury.
The applicant did not report any pain related problems in relation to his social functioning with his partner.
The applicant had lost interest and enjoyment in maintaining his car. He had difficulty watching sport for long periods on television as he could not follow the tactics of his favourite team. He did not have any hobbies. He had lost interest in reading short news articles or more than a few lines of text.
The applicant reported he could not perform simple tasks on his car such as replacing a spark plug. He said he would have pain when trying to change spark plugs. He said he had ‘cross threaded a plug’ and then abandoned his maintenance of the car.
The applicant reported that he had not found lesser work since the onset of this primary psychological injury. His employability was totally impaired at the time of this assessment.
The applicant reported he had been returned to work on light duties and was working fulltime hours before the onset of the primary psychological injury. The applicant reported that he had been able to perform restricted duties that did to involve vibrating tools that would cause pain.”
The MA summarised the injuries and diagnoses as follows:
“In my medical opinion the applicant’s primary psychological injury is best defined by Persistent depressive disorder DSM5TR F34.1 and Gambling Disorder DSM5TR F63.0.
The applicant developed this primary psychological injury after his employment ceased in November 2016. The applicant had never been in remission from his diagnosed primary psychological injury. The treatment provided by his treatment team did not place his primary psychological injury into remission. He remained symptomatic at the time of the assessment.
The applicant had been prescribed evidence-based antidepressant pharmacotherapy to treat his injury. The applicant had also received cognitive behavioural therapy from a psychologist and a psychiatrist. Cognitive behavioural therapy is evidence-based treatment for his primary psychological injury. The applicant had also received evidence-based motivational counselling for treatment of his gambling disorder.
The applicant had a secondary psychological injury due to the development of an adjustment disorder with depressed mood that had impaired his capacity to return to fulltime employment prior to his employment with this employer ending.”
The MA assessed 15% WPI.
He explained his reasons for assessment as follows:
“In my medical opinion the applicant suffered from a moderate impairment of functioning in his activities of daily living as assessed by the psychiatric impairment rating scale.
The applicant had never returned to work. His capacity for ongoing work was less than prior to the secondary psychological injury. Whilst suffering from the secondary psychological injury the applicant had attended work and was fit for light duties. He had participated in light duties whilst suffering from his secondary psychological injury. He had difficulty adjusting to his new circumstances. An adjustment disorder with depressed mood could be diagnosed using DSM5TR criteria at that time. He had arguments with his partner and she left the relationship due to the applicants depressed mood caused by his chronic pain.
The applicant had developed a secondary psychological injury diagnosed as an adjustment disorder with depressed mood DSM5TR F43.21 in response to his poor adjustment to his loss of physical functioning caused by his physical injury. The chronic pain experienced by the applicant, both at the time of the secondary psychological injury onset and at the time of this assessment, is not assessed as part of the primary or secondary psychological injury in compliance with current guidelines.
The applicant reported that his employer began to bully and harass him. The applicant returned to parttime hours and was directed to move from his night shift to day shift. He assisted with performing light duties as directed by his treating medical team. He said the bullying and harassment was new. He was isolated from his co-workers for the entire day shift. He was directed to repeat a single task of checking the toilets, twice daily. He said he was left isolated and not permitted to help another co-worker also on light duties.
The applicant said he was abandoned and humiliated, ‘Like spending all week at a bus stop! Waiting for a bus that never came!’ He suffered from shame as he was not permitted to work in a meaningful role within the light duties. He became hopeless. He felt his self-esteem become low. He also lost his work hardiness as he was not provided with minimum necessary duties to sustain his work hardiness. He became more depressed, and his concentration became poor. He became to gamble on poker machines regularly. He became aware of temporary relief from his agitation, irritability, and depressed mood. He reported losing control of his gambling. He began ‘chasing his losses’. He approached his sister for more money to recover his large debt. He failed and held a $40,000 debt to his sister. He planned to sell his collectable car to cover the debt. He did not tell his current partner of the debt as he felt shame and guilt for losing the money.
The applicant sustained moderate impairment in his social and recreational functioning with the development of a gambling disorder, not assessed as part of this moderate impairment. He had lost friendships as he does not socialise at the club whilst gambling.
The applicant had never been in psychiatric hospital for this primary psychological injury. On scrutiny of the applicant’s medical and psychiatric history he did not have a pre-existing condition. The applicant did not return to work after his failed to return to work plan. His employment ended in November 2016. He had not worked since. The effect of treatment was assessed as nil.
The applicant was assessed as having 19% WPI minus one fifth (4% WPI) due to the effects of the secondary injury. The resulting total is 15% whole person impairment.”
He then turned to consider the other medical opinions and material before him.
That material is extensive, and we do not intend to set it out further here, but will refer to any material where relevant in our determination.
The appellant’s submissions
We have already set out above a summary of the appellant’s submissions.
Turning firstly to the category of Self-care and Personal hygiene, the appellant submits as follows:
(a) the MA’s reasons identify nothing that warrants any assessment other than Class 1. Other than appearing unkempt on the day he identifies nothing that falls within the example suggested in the Guideline. If reliance on pre prepared foods was relevant it had to be considered within the context of the applicant’s age sex and cultural norms.
(b) There is nothing in the applicant’s background to suggest that a 57-year-old man living without the support of his partner was exhibiting a behavioural consequence of his psychiatric disorder in reliance on pre-prepared meals. His physical disability obviously affected his ability to perform manual domestic work.
As regards the category of Social and recreational activities, the appellant submits:
(a) according to what the respondent told Dr Westmore, the main limitation on his recreational activity was pain, inhibiting golf, bowling, fishing and motor bike riding. The example in Guideline Table 11.2 focusses strongly on the need for a support person to engage in such activities; that is the behavioural rather than the physical limitation. This is not a feature of the applicant’s presentation.
(b) In addition the MA erroneously made a diagnosis of a gambling disorder, the effect of which resulted in assessment on the basis of incorrect criteria.
(c) Moreover, he has failed to state whether this diagnosis is related to the injury he was tasked to assess. If he was of the view the diagnosis was related, he provides no reasons or justification as to how it is connected to the worker’s primary psychological injury.
(d) He has incorrectly chosen not to consider the respondent’s attendance at the bowling club twice a week as not constituting recreational activity. His assessment in this regard is inconsistent with the surveillance report dated 23 December 2020 (Reply 3) to which the MA makes no reference. As a result the MAC does not disclose what he made of the observation of the respondent smiling and talking with another individual while playing a poker machine. The possibilities are that he did not read the report of Procare, or having done so failed to comment on it.
As regards the category of Travel, the appellant submits:
(a) the Reason for Decision for this category did not identify any functional limitation on the respondent’s capacity to travel. Other than his physical inability to ride a push bike/motor bike and physical restriction on driving a car none was identified in the history or the evidence.
(b) The MA did not record a history of overseas travel although Dr Westmore recorded a trip to the Philippines in 2019 (Application to Resolve a Dispute (ARD) page 48.He told the MA that he was able to travel in local and familiar areas. He did not suggest that he could not do otherwise or that he had any need or desire to do so.
(c) Nothing in the certificate supports an assessment other than Class 1.
As regards cpp, the appellant submits:
(a) the loss of interest in car maintenance is understandable due to the physical limitations in undertaking manual activity.
(b) The MA does not explain how this represents a behavioural consequence of the respondent’s psychological disorder. Given the respondent’s self description of being illiterate, the significance of his limited tolerance for reading brief news articles is difficult to discern.
(c) There is no suggestion that he has withdrawn from hobbies because of his psychological condition. There is direct evidence that they have been denied to him due to his physical condition. One of the respondent’s reported limitations suggest any more than an allocation of Class 2.
(d) One recorded complaint that he makes is regarding his limited ability to follow sport on TV because of an inability to follow tactics. This suggests no more than Class 2.
Finally, turning to the category of Employability, the appellant submits:
(a) the test of employability applied by the MA was the respondent’s inability to find lesser employment. However, the correct question was whether the behavioural consequences of the respondent’s psychological condition prevented him from working and if so, to what extent.
(b) The MA failed to observe that the respondent had been unable to find meaningful employment since his physical injury.
(c) That capacity was already compromised by his physical disability. He was an illiterate spray painter with no transferable skills and a significant physical impairment. The MA erred in failing to take this significant feature of the applicant’s capacity into account.
The respondent’s submissions
These may be summarised as follows:
(a) when considering the impairment resulting from the primary psychological injury, the MA mentioned on several occasions that he was distinguishing between the effects of pain and the physical limitations which were relevant to the secondary psychological injury and not the primary psychological injury.
(b) The appellant’s primary complaint is that the MA failed to consider any of the physical limitations in assessing the respective PIRS categories. This submission ignores the numerous comments where the MA identified the various physical limitations and excluded them from the assessment of the primary psychological injury.
(c) The submission made by the appellant is factually wrong and seems based upon a failure to consider the entirety of the lengthy and detailed reasons given by the MA.
(d) The appellant’s submissions are a series of complaints that the assessment should have been given a different class within 5 of the scales.
(e) The submissions do not identify any specific error in the assessment but merely submit that a different lesser class should have been assessed.
(f) The submissions generally amount to no more than cavilling with the assessment made.
(g) The assessment of a class within a scale is a matter of discretion and the clinical examination is pre-eminent.
The respondent then set out more detailed submissions as regards the assessments in each category, concluding that the assessments were available to the MA, consistent with his clinical findings and the Guidelines, such that no error was disclosed.
Discussion
The Appeal Panel confirmed he has a primary psychological injury and assessed his psychiatric impairment as a result of that injury only in accordance with the referral.
The appellant sought to admit a further investigation report supplied by Procare, dated 23 October 2024, after the Appeal Panel had met and before the completion of the Appeal Panel’s re-examination. The Appeal Panel saw no reason why this surveillance could not have been completed before the initial assessment by the MA or before the application to appeal. It lacks probative value and the Appeal Panel will not consider it in deliberations.
The Appeal Panel agreed with the thrust of some of the appellant’s submissions and concluded that a re-examination of Mr Wood was required.
It is perhaps appropriate at this stage to set out the findings and assessment made when Mr Wood was initially seen by Dr Hong on 17 September 2024, and why the examination was ultimately aborted.
Dr Hong reported to the Appeal Panel after the first assessment and said:
“I started the assessment by explaining why he was being reassessed today, and about Dr Baker's certificate being appealed and the PIC has formed a panel to review the case.
Mr Wood presented as quite erratic from the start, and constantly talked over me the entire time, and the assessment was stopped after 30 minutes.
He began by saying that insurer tried to get out of paying him, but how can they do it, given that he cannot live without his medication and even 15% assessed by Dr Baker was a very low assessment.
He told me that he had a procedure done yesterday, what sounds like a gastroscopy, and said he was off medication all day yesterday. He said he should have been back on Pristiq this morning, but he has not taken it yet (9am). He said whenever he doesn't take the medication, he finds his mood is not very good.
I took a history of Mr Wood's current treatment, compared to when assessed by Dr Baker:
·He is no longer on gabapentin.
·He takes Pristiq 100mg (and not 200mg as Dr Baker noted, at one point).
·Panadol is the only analgesic now
·Oral diabetic medication
·A weekly diabetic injection (Semaglutide). He has lost about 10kg in the last 12 months on the medication.
·Anti-hypertensive medication
He said the last time he saw a psychologist was 6 months ago and felt they were not doing much, so he has not continued with it.
He said the last time he saw a psychiatrist was a few years ago at Workers Doctors.
He said he attended Gambling Anonymous for about 9 sessions and finished it about 6 months ago.
In terms of his work injury, he confirmed he suffered an injury to his hand at work from using unregulated sanders at work on 1 April 2014.
He had surgery in 2014, 2015, and a third hand surgery maybe 5 years ago. He said since then he cannot do anything heavy with his hands. I asked what he meant by anything heavy, he said he cannot do everything and he can only do light work.
I asked what light work he can do, he said he can mow a nature strip, maybe half an hour to an hour. He can half wash the car. He said that when he tried to change the car oil filter, he broke it. I tried to clarify what he meant by breaking the oil filter (this was around 10 minutes into the assessment). Eventually I understand what he meant was that he tightened it too much, and the filter broke. He was angry when I tried to clarify how he broke the filter, and made comments ‘you are against me’, when I clarified the comment, he said he did not say it and what he said was ‘I felt like you are against me’. I discussed with him, the option of stopping the assessment, if he was not in a good headspace, and explained to him several times during the assessment, he was often talking loudly over me, before I could finish a sentence, and I offered the option of stopping the assessment if he felt like the assessment was biased at that point (10 minutes in).
I discussed we could take a break and I will report back to the Panel, and organise another time when he has recovered sufficiently from the recent surgery and anaesthetics.
Mr Wood wanted to proceed, and so we proceeded further.
I asked him about the things that he was interested in previously, before his work injury, he said that he used to go deep sea fishing with a fishing club until the club closed maybe 10 years ago. He used to enjoy 10-pin bowling, but he cannot do it anymore due to his hands.
Initially he said it was due to medication and I tried to clarify what medication caused the problem with playing 10-pin bowling, he became angry and said he did not say it.
He used to enjoy riding a motorcycle, which he still does now to a limited degree, maybe every two or three months. He said it was only a little ride, a simple half an hour to the central coast, take a break, then ride another half an hour back home. He usually does it by himself. Occasionally his partner would come as a passenger.
Mr Wood discussed going to the club to play poker machines. He said his sister used to drop him off, and he would spend a couple of hours there and his sister would pick him up. But early in 2024, he realised he had a problem with gambling, he declared that he was having a problem with it and barred himself from the club. Before he was barred, he said he would go there, have a beer, and gamble on the poker machine. Mr Wood said he did not have any friends there, but after a while there were some people, acquaintances, who did not work there and might talk briefly when he was there.
I asked him about doing things with his friends. I noted by this stage, he was very erratic and generally angry and talking in a loud voice. Eventually he told me that he was having coffee in a shopping centre with a friend, every few weeks or months in 2024, but the friend died from a heart attack two weeks ago. Initially he told me the friend committed suicide, but then later he said that the friend that committed suicide was two different friends, four or five years ago. One hung himself, and the other one stabbed himself in the chest. He again raised concerns about the questions I asked about his different friends, and said I was not helping him. This was about 30 minutes into the assessment. As he was erratic, angry, talking in a loud voice most of the time, and became more upset whenever a question was asked to clarify the history, and not settling as the assessment proceeded, I explained to him why the assessment had to be rescheduled. I spent some time explaining the procedure and why it was being stopped today, and eventually, he said he understood and thanked me, and said he did not feel I was biased.”
Dr Hong re-examined Mr Wood on 7 November 2024 and reported to the Appeal Panel. We now set out his findings and assessments below, together with those of the MA and other doctors.
“Treatment:
Mr Wood is now taking:
·Pristiq 200 mg
·Metformin 100 mg, glucose-lowering medication for diabetes
·Anti-hypertensive medication
·Ozempic, he lost 10kg since Ozempic was commenced
Mr Wood reported that he had an endoscopy and the results were good.
He attended Gambling Anonymous for 9 sessions and finished it about 9 months ago.
Current status:
Psychologically, he said that he has been the same for more than 12 months. He was off Pristiq when having an endoscopy, and now he's back on Pristiq (Desvenlafaxine) 200mg, which is what he took when seen by Dr Baker, he said that his psychological health is under control, but if he goes one day without Pristiq, he gets angry, so he makes sure he takes it every day.
Even though his irritability is okay on medication, sometimes he still gets cranky and argues with his partner.
He uses a CPAP machine and said that he sleeps at night time between 9pm to 8am, but often he will sleep 3 or 4 hours in the daytime, maybe 3 days a week (ie around 15 hours in 24 hours period) as he is always tired.
He reported having concentration and memory problems. He has a limited vocabulary and said that he can understand most of the words in the Telegraph newspaper, and he verbalises when he reads, but he has never really been a reader and doesn't read now, because he cannot focus. He said he makes mistakes even doing vehicle maintenance work.
In terms of anxiety, he cannot identify any situation that triggers his anxiety.
He eats regularly and his weight is stable. He lost weight on Ozempic and his weight has been the same for a couple of months now.
Lifestyle activities:
I asked Mr Wood about the things that he was interested in previously, before his work injury, he said that he used to go deep sea fishing with a fishing club until the club closed maybe 10 years ago. He used to enjoy 10-pin bowling, but he cannot do it anymore due to his hand injury.
He used to enjoy riding a motorcycle, which he still does now to a limited degree, maybe every two or three months. He said this is only a little ride, a simple half an hour to the central coast, then he takes a break, then rides another half an hour back home.
Mr Wood discussed going to the club to play poker machine. He said his sister drops him off, and he would spend a couple of hours there and his sister would pick him up. Early in 2024, he realised he had a problem with gambling, he declared that he was having a problem with it and barred himself from the club and TAB.
After he completed the gambling treatment, he said his gambling behaviour is okay now, and he is starting to bet on horses again, and he said it's no longer a problem because he is in control. He enjoys gambling. His friend, a mechanic also goes to bet, and they bet on horses together. He said a lot of people know each other there, so he has a lot of acquaintances, but they're not really friends. He enjoys catching up with his main friend at the club every Saturday.
He was having coffee in a shopping centre with a friend, every few weeks or months in 2024, but the friend died from a heart attack a couple of months ago.
In terms of typical daily activity, Mr Wood said that his sister lives next door and expects him to go out and do some things, so he will go and mow the nature strip outside.
He also does some gardening for about half an hour to an hour, but after that, he often lies down. He does a bit of cleaning up at home and does the shopping, and said there's no problem there, he can shop and buy everything.
Mr Wood generally only cook once a week, making steak and sausage in the air fryer. He said he only showers maybe every 3 days because he has no energy and he is at home anyway. If he goes out, he will make sure he showers. He doesn't go out too much, but he goes to the shops to buy things they need, and every Saturday, he goes to the local club.
Outside the club, he would talk to the same mechanic friend on the phone. When he gets into trouble with his vehicles, he'll call that friend to come to help. He said he changes the oil on the motorcycle and the car, and changes the brake shoe, but most of the time he gets it wrong and puts it in wrongly, so the friend has to fix it up.
In terms of trips and holidays away, Mr Wood said maybe two years ago he went to Tasmania for a week's holiday with his partner.
I asked him about the trip to the Philippines, he said that he met his partner in Australia, but then she had to return to the Philippines, and he went there to meet her family and help her come to Australia and with the immigration department. That overseas trip was maybe three or four years ago before COVID pandemic.
His partner works six days a week, and they don't usually eat dinner together, so once a week on a Sunday, they have a proper family meal together at home. She usually goes to church with her daughter on Sunday and he doesn't go.
Mr Wood said she had been a passenger on his motorcycle, but only twice in the last five years. He prefers to ride the motorcycle by himself and only do every two or three months. Sometimes, another friend who is married, rides with him as well. He enjoys riding. He said that usually only ride half an hour because of his wrist problem, but if it's on the highway, he can ride for longer.
In terms of driving, he said he has a similar restriction because of the wrist injury that has not been alleviated by surgeries. He cannot drive very long due to his wrist pain, but aside from that, there are no other specific problems being out, driving or riding.
MSE:
Mr Wood was assessed by video, and was alone during the first assessment. His sister, Pauline Wood was present during the second assessment as a support person. He had a shaved head and was clean-shaven. He spoke well and was not irritable, and was easy to interrupt. He had moderately restricted affect and maintained interpersonal warmth, and was disorganized, but not thought disordered.”
Self- care and personal hygiene
On re-examination, Dr Hong found the following:
“He eats regularly and his weight is stable. He lost weight on Ozempic and his weight has been the same for a couple of months now. Mr Wood generally only cooks once a week, making steak and sausage in the air fryer. He said he only showers maybe every 3 days because he has no energy and he is at home anyway. If he goes out, he will make sure he showers. He buys things he needs.”
The MA assessed a Class 2 and said:
“The applicant was independent in his self-care and personal hygiene. The applicant’s appetite was poor. He was more reliant on pre-prepared foods. He was unkempt at the time of the assessment. He did little housework or laundry. He relied more on the support of his partner’s two children for assistance. He would assist with light cleaning.”
It is clear that those motivational issues relate to his primary psychological injury, as is his reduced energy, notwithstanding any physical limitations in this category.
The appellant submitted that a Class 1 was appropriate because “other than appearing unkempt on the day”, he identifies nothing that falls within the example suggested in the Guideline.
The descriptor for a Class 1 reads: “no deficit, or minor deficit attributable to the normal variation in the general population.”
The Appeal Panel found no error in the MA’s assessment of Mr Wood’s self-care and personal hygiene and confirm the Class 2 rating.
Social and recreational activities
The MA assessed a Class 3 and said:
“The applicant reported having ceased socialising in groups. He said he no longer socialises at the club where he gambles. He said he does watch television. He would watch shows such as ‘finding gold or car shows.”
The Appeal Panel found error in the MAC because the MA had not adequately considered the respondent’s activities at the Bowling Club.
The MA’s summary in the PIRS Table accompanying his MAC was fairly sparse; the MA was apparently more focussed on his diagnosis of a gambling disorder rather than Mr Wood’s actual behaviour.
On re-examination, Dr Hong reported to the Appeal Panel as follows:
“Early in 2024, he realised he had a problem with gambling, he declared that he was having a problem with it and barred himself from the club and TAB.
He attended Gambling Anonymous for 9 sessions and finished it about 9 months ago.
After he completed the gambling treatment, he said his gambling behaviour is okay now, and he is starting to bet on horses again, and he said it's no longer a problem because he is in control. He enjoys gambling. His friend, a mechanic also goes to bet, and they bet on horses together. He said a lot of people know each other there, so he has a lot of acquaintances, but they're not really friends. He enjoys catching up with his main friend at the club every Saturday.
He has regular social and recreational activities at the club, he enjoys catching up with his friends outside the club as well. He enjoys riding his motorcycle but this has declined over time, partly due to anxiety related to further hand injury. He does not need prompting as he initiates recreational activities and is actively engaged. It cannot be said a reduced participation in recreational activities to only riding the motorcycle from a couple of times a week to a couple of times in the past few months, due to anxiety, is consistent with minor deficit of the general population, therefore the I rated a Class 2.”
This is consistent with the totality of the evidence and the opinions of other independent medical assessors.
The MA diagnosed a gambling disorder.
Mr Wood’s gambling disorder is in complete or partial remission, or at least he considers that his gambling behaviour “is okay now” such that he finds it enjoyable and meets friends and acquaintances there.
The descriptor for a Class 3 reads:
“Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The evidence suggests that, at the time of Dr Hong's second assessment, Mr Wood’s ability to engage in various social and recreational activities had improved considerably, so a Class 3 rating is inconsistent with the evidence.
We accept the findings and assessment by Dr Hong in this category such that a Class 2 rating is appropriate.
Travel
The MA assessed a Class 2 and said:
“The applicant was able to travel to local and familiar areas alone. He was able to travel to well-known locations within his local area.”
The respondent submitted that the MA did not identify any functional limitation on the applicant’s capacity to travel. Other than his physical inability to ride a push bike/motor bike and physical restriction on driving a car none was identified in the history or the evidence.
It was also submitted that the MA did not record a history of interstate or overseas travel although Dr Westmore recorded a trip to the Philippines in 2019. He told the MA that he could travel in local and familiar areas. He did not suggest that he could not do otherwise or had any need or desire to do so.
The Appeal Panel agreed with these submissions. The Appeal Panel found the MA in error for not addressing some relevant material. Since his injury, the respondent had travelled to the Philippines. He is riding his motorcycle outside his local area, although with restrictions.
On re-examination, Dr Hong reported:
“In terms of trips and holidays away, Mr Wood said maybe two years ago he went to Tasmania for a week's holiday with his partner.
I asked him about the trip to the Philippines, he said that he met his partner in Australia, but then she had to return to the Philippines, and he went there to meet her family and help her come to Australia and with the immigration department. That overseas trip was maybe three or four years ago before COVID pandemic.
He can go out without a support person and travel overseas, and from a psychological perspective, there is no impairment. His physical injuries not assessable in the PIRS. I rated a Class 1.”
We accept Dr Hong's findings and assessment and agree that a Class 1 rating is appropriate in this category.
Concentration, persistence and pace
The MA assessed a Class 3 and said:
“The applicant had lost interest and enjoyment in maintaining his car. He had difficulty watching sport for long periods on television as he could not follow the tactics of his favourite team. He did not have any hobbies. He had lost interest in reading brief news articles for more than a few lines of text.”
There are clear inconsistencies in this assessment.
To begin with, it is unclear whether Mr Wood’s loss of interest and enjoyment in maintaining his car is due to his physical injuries or the secondary psychological condition arising from those injuries.
As the respondent pointed out: “The loss of interest in car maintenance is understandable due to the physical limitations in undertaking manual activity.”
For these reasons, the Appeal Panel found the MA had erred in his assessment because he had failed to provide a clear line of reasoning for his assessment.
Dr Hong reported to the Appeal Panel as follows:
“He reported having concentration and memory problems. He has a limited vocabulary and said that he can understand most of the words in the Telegraph newspaper, and he verbalises when he reads, but he has never really been a reader and doesn't read now, because he cannot focus. He said he makes mistakes even doing vehicle maintenance work. As he has clear concentration decline since his injury, he cannot make significant repairs to his vehicle, and is mistake-prone when working on his vehicle, so I rated a Class 3.”
The MA also noted:
“The applicant had poor concentration and would attempt to avoid thinking about his injuries. He required time to re-compose himself. His concentration was poor. He could not remain on topic. He would avoid eye contact…”
Mr Wood clearly has some literacy challenges. As the respondent also pointed out, “Given the applicant’s self-description of being illiterate, the significance of his limited tolerance for reading brief news articles is difficult to discern.”
Having said that, as Dr Hong pointed out, his concentration has declined since his injury and he has difficulties doing vehicle repair work and is mistake-prone.
We accept the assessment by Dr Hong.
Employability.
The MA assessed a Class 5 and said:
“The applicant reported that he had not found lesser work since the onset of this primary psychological injury. His employability was totally impaired at the time of this assessment.”
The respondent submitted that:
“The test of employability applied by the MA was the applicant’s inability to find lesser employment. However, the correct question was whether the behavioural consequences of the applicant’s psychological condition prevented him from working and if so, to what extent.”
We agree with that submission. The MA erred in failing to give adequate reasons and relying on an irrelevant consideration.
There is no doubt that Mr Wood’s ability to find gainful employment was already compromised by his physical disability. He will also have limited opportunities because of his literacy challenges and age. However, the Appeal Panel accepts that it is the respondent’s capability that is being assessed, considering the effect of his primary psychiatric condition, not his opportunity.
As the respondent correctly pointed out: “He was an illiterate spray painter with no transferable skills and a significant physical impairment.”
On re-examination, Dr Hong reported to us and said:
“He has not looked for work and I noted his physical injuries and pain are a major impediment, but not assessable in the PIRS. He performs household chores, mows the lawn, and these are remunerable work-like activities. Purely from a psychological perspective, I assessed him as a Class 3, as he can work less than 20 hours per week but not in his pre-injury duties, given spray painting involved a higher level of concentration than he has, and he cannot return to work with his pre-existing employer due to the effects of bullying and harassment.”
Dr Hong makes valid observations.
He has acknowledged the physical restrictions limiting Mr Wood’s employment opportunities, but correctly, in our view, observes that spray-painting requires “a higher level of concentration than he has…”
The MA diagnosed Mr Wood with a persistent depressive disorder.
Considering all the evidence before us, the Appeal Panel believes the respondent could not work in a position as demanding as that he left and the he would only be able to work reduced hours.
For these reasons, the Appeal Panel agrees with the findings and assessment by Dr Hong in this category.
The Appeal Panel agrees with the assessment ratings of the Appeal Panel member, Dr Hong, in the categories in which the MA erred.
It is consistent with the totality of the evidence and with the information Mr Wood provided at his two assessments with Dr Hong.
The class ratings are summarised as follows:
Self-care and personal hygiene – Class 2;
Social and recreational activities – Class 2;
Travel – Class 1;
Social functioning – Class 2;
Concentration, persistence and pace – Class 3, and
Employability – Class 3.
Ascending order, 122233, median 2, aggregate 13, WPI 7%.
Minus secondary psychological injury 1/5, the final WPI is 6%.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 April 2024 should be revoked, and a new MAC 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: | W7492/23 |
Applicant: | William Wood |
Respondent: | UGL Limited |
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 Dr John Baker 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) |
| 1. Psycholo gical Injury | 25/11/2015 (deemed) | Chapter 11, | Chapter 14 | 6% | Nil | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
0