Vassalli v Endeavour Group Ltd
[2024] NSWPICMP 419
•28 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Vassalli v Endeavour Group Ltd [2024] NSWPICMP 419 |
| APPELLANT: | Tanya Vassalli |
| RESPONDENT: | Endeavour Group Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 28 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment was made on the basis of incorrect criteria and contained demonstrable error in the assessment of all categories under the Psychiatric Impairment Rating Scale due to an inadequate path of reasoning; Held – Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 November 2023 the worker Ms Tanya Vassalli (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 October 2023.
The appellant relies on the following ground 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 grounds 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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested that she undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination because the Appeal Panel found error.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the appellant on 9 May 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.
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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of injury: 8 June 2022
·Body parts/systems referred: psychological
·Method of assessment: WPI”
The Medical Assessor issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter,
page and paragraph number in NSW workers compensation guidelinesChapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. psychological
8/6/22
11
11
7
+2% treatment
9
Total % WPI (the Combined Table values of all sub-totals)
9
The assessment was based on his assessment under the Psychiatric Impairment Rating Scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
Name
TANYA VASSALLI
Claim reference number (if known)
DOB
xxxx
Age at time of injury
Date of Injury
8/6/22
Occupation at time of injury
Store manager
Date of Assessment
12/10/23
Marital Status before injury
Psychiatric diagnoses
1. persistent depressive disorder
2.
3.
4.
Psychiatric treatment
Psychology, GP, medication
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Reduction in self care
Mild impairment.
She is able to live independently but relies on her fiancé
Social and recreational activities
3
Reduced social functioning. Has withdrawn from social activities
Is able to attend woodwork weekly
Travel
2
able to travel without support to familiar places
Social functioning
2
strain on relationship with partner
Loss of some friendships
Concentration, persistence and pace
2
Subjectively impaired concentration
Able to concentrate for fulltime work in less stressful environment
Employability
3
moderate impairment
She is only able to work in a less stressful environment
Score
Median Class
2
2
2
2
3
3
2
Aggregate Score Impairment
Total
%
+
+
+
+
+
14
7%
The Medical Assessor allowed 2% whole person impairment (WPI) for the effects of treatment from which there is no appeal) giving a total assessment of 9% WPI.
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessment because the path of reasoning was inadequate and that he failed to provide any, or any cogent, explanation to enable the decision to be understood by the reader and for a proper analysis to be undertaken in relation to the implementation of the PIRS table. It was further submitted that he made a demonstrable error by misapplying Chapter 11 of the Guidelines. In these circumstances the appellant sought she re-examined by a Medical Assessor who was also a member of the Appeal Panel.
In summary, the respondent employer, the Endeavour Group Limited (the respondent), submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel was satisfied as to error because the history taken by the Medical Assessor was inadequate. The MA had not given enough information to discern his line of reasoning regarding his Class ratings in any of the six PIRS categories. In these circumstances the Appeal Panel was satisfied as to error and considered a re-examination was necessary.
Medical Assessor Michael Hong was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W5349/23 |
Appellant: | Tanya Vassalli |
Respondent: | Endeavour Group Limited |
Examination Conducted By: | Michael Hong |
Date of Examination: | 9 May, 2024 |
1. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Vassalis recounted that she has completed a diploma in HR and worked in management roles. She was a store manager at Target for 12 years.
She then joined Endeavour and worked in the Colyton Dan Murphy store as a full-time store manager between 2019 and June 2022. Her job involved rostering the team, leading the team, attending to daily operations, organize special customer events and ensure that they were compliant with the audits. She attended to stock ordering, did the cash office and did some customer service. She managed two section managers in the store.
Ms Vassalis reported that she joined the store during the COVID pandemic and about a month later they hired a new manager, and the bullying and harassment started. She had another manager later but the same bullying behaviour continued. In early 2022 she spoke to her GP, and she started taking Lexapro at that time. She continued to work but the stress built up to the point that she couldn’t cope anymore, and then she stopped working. She commenced treatment with Dr Alex, her first psychologist in July 2022 when she ceased working, but only briefly. She then started seeing Angela Parasher, her current psychologist.
Initially, she recalled she had severe depression and anxiety symptoms, and couldn’t function. About three or four months after she ceased working, after psychologist treatment, she gained some improvement and she started working again.
Ms Vassalis is on a 12-month contract with Your Town, which is an organisation helping young people find work. She works in an office, which is only about 10 minutes from home and she does administration work. She said her 12-month contract is up for renewal soon. She is working 9-4 pm, Monday to Friday. She said that she would talk to a young person or school leaver, and help the job seeker build up a resume and compile all the documents required to find work. She said there was no training involved. Ms Vassalis may spend about an hour with each client, and enter the person's information into the computer system and she might see three clients in a day. Due to stress, she has taken a lot of time off work and has used up her sick leave. The manager had spoken to her about her excessive leave and there is no concern about her performance and she has not been making mistakes at work. She works in a small office with 2 other workers. Ms Vassalis said that her income is much lower compared to her previous job and she doesn't believe she can do any management role, because of her anxiety and her experience of being bullied by the managers previously.
· Present treatment:
Ms Vassalis is taking Lexapro 10 mg. She had taken 20 mg previously. She is not sure if medication has helped and worries about stopping it altogether, and said she is still taking it ‘just in case’.
She took Propranolol for anxiety and it was ineffective and it was ceased.
She consulted Dr Alex and now Ms Parasher, psychologist, recently every 2 to 3 months.
· Present symptoms:
Ms Vassalis’ anxiety symptoms are heightened in social situations.
She described having variable depressed moods.
She reported an inability to enjoy social events, which she would normally enjoy.
Ms Vassalis said her concentration and memory are ‘not great’ now.
She reported she gained weight in 2024, even though she skips meals, because she has too much junk food.
She reported having sleep difficulties with middle insomnia, and often wakes up in a sweat.
She starts arguments with her partner as she is irritable.
Ms Vassalis denied having suicidal ideation.
· Social activities/ADL:
Ms Vassalis is 39 years old and living with her fiancé.
When she is not working, she is often in bed. She is off work this week, she said in preparation for the assessment today.
She said she doesn’t do much housework chores such as cooking, shopping or cleaning up anymore. She only makes simple foods such as salads and sandwiches. She showers every day and changes to clean clothes regularly.
Her mother lives 20 minutes away but she has been avoiding the family and sometimes makes excuses and says that she is working so that she doesn't have to see her mother. She receives invitations to birthday parties, but she refuses to go and says she feels sick, so her partner has to go by himself. Normally, she will either catch up with her friends or go to the city, go to games such as mini golf and movies but she has been avoiding all of these. She remains in contact with a couple of friends on the phone and by Messenger, she said to see what they are up to. She said previously they had a group of about 10 people including their partners but because she wasn't going out to activities, after a while they stopped having contact.
She used to go and see her partner’s family with him, but now he goes on his own.
Ms Vassalis only drives about 10 minutes on her own, mainly to go to work. If she has to go further, her partner drives but she also said that they have not been away in the last couple of years on any trips.
Ms Vassalis was close to her siblings when she was younger, and she is the eldest of four. She said there is a three or four-year gap between each of them. Once she moved out, she is not as close and now she has become distant from them as well.
She would leave the TV on for noise but said she doesn't really watch it.
2. FINDINGS ON PHYSICAL EXAMINATION
Ms Vassalis was assessed by video. She was alone, and her partner was also at home during the assessment. Her hair was tied back and she wore a black shirt. There was no psychomotor slowing or abnormal movements. She was moderately restricted in her affect. She spoke spontaneously. She remained focused throughout the assessment and spoke with a steady pace.
Before completing the assessment, she discussed the prolonged process and stress with repeated assessments, that in the past she could manage a team but not now, there is stigma on medications, she was on a good income but she cannot do the same type of work now.
3. SUMMARY
· summary of injuries and diagnoses:
Ms Vassalis does not have a past psychiatric history and described developing anxiety and depressive symptoms as a result of workplace bullying and harassment. She has had treatment and has returned to work with a different employer, but continues to struggle with her psychological symptoms and remains impaired, both occupationally and in undertaking personal activities. Her psychological symptoms are chronic and consistent with a Persistent depressive disorder.
Table 11.8: PIRS Rating Form
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
Ms Vassalis showers daily without prompting, but skips meals sometimes. She said she has too much junk food and gained weight in 2024. She does minimal household chores and only prepares simple foods.
Social and recreational activities
3
She avoids social and recreational activities, which she used to enjoy, and rarely has visitors.
Travel
2
Ms Vassalis has travel anxiety and only drives short distances and cannot drive long distances due to her anxiety.
Social functioning
2
Ms Vassalis’ relationship with her partner has been strained as she starts arguments with him. They sleep in separate rooms after arguments and this occurs frequently.
She is anxious and socially avoidant, and ceased contact with most of her friends. She maintains contact on Messenger with a couple of friends.
The relationship with her mother and siblings has become distant now.
Concentration, persistence and pace
2
Ms Vassalis reported having reduced concentration.
She has not undertaken to retain since her psychological injury.
She helps clients and attends to their resumes and paperwork, and spends 1 hour with each client.
She can focus on intellectually demanding tasks for more than 30 minutes and can follow complex instructions, but not at the same level she used to.
Employability
3
She has full-time work but has taken a large amount of leave due to stress. She cannot manage her pre-injury duties.”
The Appeal Panel considers that the examination undertaken by Medical Assessor Michael Hong was conducted in a thorough manner.
The Appeal Panel notes the appellant’s statement. Whilst there was no specific mention of concentration and memory problems in her statement, Medical Assessor Michael Hong took a history from her, that her concentration and memory are “not great” now. Assessment cannot be based on self report alone and clinical evaluation of the appellant’s self report in line with the criteria in the Guidelines is required.
The appellant’s partner’s statement noted she avoids social situations and avoids seeing his family since the injury. Their relationship has been affected and there are times when they don't sleep in the same bed anymore.
The Appeal Panel has reviewed the findings of Dr Hong and has determined the class ratings in the above PIRS table are appropriate.
The Appeal Panel notes that the appellant relied on the reports of Dr Nagesh, the independent medical examiner qualified to provide an opinion on her behalf and who assessed 15% WPI in a report dated 13 October 2022.
The assessments of the Appeal Panel in every category under PIRS is the same as assessed by Dr Nagesh with the exception of the assessment in respect of concentration, persistence and pace, where Dr Nagesh found a moderate impairment and the Appeal Panel considered the impairment to be mild.
The Guidelines provide the criteria for assessment of concentration, persistence and pace as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2
Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4
Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5
Totally impaired: needs constant supervision and assistance within institutional setting.
Dr Nagesh explained that the appellant works in a job with a pay cut and the job is less stressful with only two people. This information is not relevant to the category of concentration, persistence and pace. He went on to explain that she has no capacity to undertake a retraining course, although he did not provide an adequate explanation to justify this. The Appeal Panel notes that on re-examination, the appellant reported she had no training to start her current job. She performs administrative work, talks to the clients for about one hour, enters their information into the computer system and helps them gather documentation and build up a resume to find work. She worries about making mistakes, but she has not made mistakes, and her manager has not raised concerns about her performance other than taking excessive leave compared to the other employees. The appellant does not engage in other intellectually demanding tasks day-to-day. Doing the computer-based work and assisting clients for an hour at a time is an intellectually demanding task. In the Appeal Panel’s assessment, therefore, her impairment is consistent with Class 2 or mild impairment.
The Appeal Panel concluded that the appellant worker has a median score of 2 under the PIRS, and an aggregate of 14, with a total WPI of 7%. The Medical Assessor made no deduction under s 323 and he made an allowance of 2% WPI for adjustment for treatment and neither of these have been appealed. Therefore the total WPI is 9%, the same as assessed by the Medical Assessor. Accordingly, the Appeal Panel will confirm the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 October 2023 should be confirmed.
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