Waite v State of New South Wales (Albury Wodonga Health)
[2023] NSWPICMP 420
•28 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Waite v State of New South Wales (Albury Wodonga Health) [2023] NSWPICMP 420 |
| APPELLANT: | Shannon Waite |
| RESPONDENT: | State of New South Wales (Albury Wodonga Health) |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 28 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) had erred in finding there was a class 2 in the Psychiatric Impairment Rating Scale (PIRS) in the category of social functioning when there should have been a finding of a class 3 or 4; Panel found no evidence to support a class 3 or 4 finding; no error by the MA; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 June 2023 Shannon Waite (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 9 May 2023
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
· the assessment was made on the basis of incorrect criteria, and
· the medical assessment certificate 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this 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.
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 in finding there was a class 2 in the Psychiatric Impairment Rating Scale (PIRS) in the category of social functioning when there should have been a finding of a class 3 or 4 impairment.
In reply, State of New South Wales (Albury Wodonga Health) (the respondent) submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychiatric/psychological injury resulting from a date of injury of 23 May 2022.
The MA obtained the following history:
“Ms Waite had been working as an administrative clerk in the elective services access unit for approximately 18 months alongside also working part-time, selling Thermomixers and in private domestic cleaning. She described her unit as being thought of as ‘the snake pit’ with difficult interpersonal issues which she described as bullying and harassing behaviour from other colleagues. It was reported by IMEs that things were difficult in 2019 and she started seeing a psychologist, Tracey Horner. The GP notes for the two months prior to her referral to Ms Horner indicate that at the time her mood was ‘iffy…feels like has a lot of anxiety, excessive worry about nothing in particular, feels stressed, not depressed, 6 months same amount of time as the fatigue, a lot of financial stress, husband’s ex-wife gets a lot of their money for child support’ and that she was gaining weight. There were a range of somatic symptoms at that time. In June2019 the GP notes that there was a mental health care plan made as a result of her presenting with ‘not a good life at home…he wrote a hate note to her, showed me note on her phone, yelled at all the time’ and that she had a K10 of 23 which resulted in the referral to the psychologist. There was no mention of any workplace psychological issues at that time. Later that year she had a hysterectomy and some time off work with some subsequent problems and in early 2020 had a fall when in Westfield Bondi Junction in Sydney. It was not until July 2020 that there is any mention in the notes of workplace problems as well as these relationship and illness stressors: ‘lots of work stress.’
Today Ms Waite told me that things were noticeably mounting up in early 2020 where the roles and the functions of the unit were changing but she said problems were existing beforehand. She said she became unwell when, in September 2020 she felt physically intimidated by other staff members who were operating as a group which she found verbally and physically confronting. She was too distressed to remain at work and has not returned since. She said that she would be too distressed to recall that event in detail. She felt as though she had been coping until that specific episode. She said this had ‘a huge impact’ and subsequently she was very tearful, hyperventilating, withdrawn, sad, angry and feels as though her life has changed substantially since. She continued treatment with Ms Horner throughout late 2020. Over that time she was markedly anxious with insomnia and experiencing panic attack when in town, although was able to continue with her domestic cleaning and Thermomix business. However she became withdrawn and avoidant of friends and on edge when out in public. In late 2020 she was prescribed sleeping tablets and then from May 2021 restarted Sertraline, an SSRI antidepressant that she had taken some years previously.
In late 2021 she commenced treatment with Joel Valente, a clinical psychologist, and has continued treatment with him over the past 18 months. She describes exposure therapy, at times accompanied by him, and supportive and CBT techniques. His initial assessment of November 2021 noted that she had a low mood with averted eye contact, anxiety but with a restricted affect and significant symptomatology on selfreport measures. He provided a list of depressive and anxious phenomena. He suggested she had gained 20kg of weight since the event in 2020 although the GP notes indicate that there was a 20kg weight gain in the early part of 2020 prior to that time and at the time she was 127kg. Today Ms Waite says that she appears not to have made any significant gains with fluctuating levels of symptoms and impairment, at times triggered by further re-exposure to the individuals who she perceives ganged up on her. For instance she said just recently she was going to a café with her husband and saw the people who she heard say ‘here we go.’ She found this confronting, highly anxiety-provoking and left panicky. She stopped doing her Thermomix job some time ago because she had had limited sales but noted that this involved going to people’s homes, dealing with new people and trying to create a network which she found anxiety-provoking although has continued with her other roles several days a week.”
After documenting Ms Waite’s current treatment, the MA then set out present symptoms as follows:
“She feels chronically dysphoric and low. She describes herself as ‘a sad sack’ and moody much of the time. She is not anhedonic, enjoying her children, watching them play sport, playing with the dog, but describes difficulties getting motivated and is embarrassed about how she has become and withdrawn from others. She describes feeling overwhelmed often, that things are too much for her and she has lost trust in people and is a much more cautious, wary person now in a range of situations. This is also associated with a degree of hyperarousal and, at times, panic attacks, particularly if she fears she may confront people from work. She noted that her thought patterns are ones of ‘catastrophising’ as commented by her psychiatrist. Although she goes to bed around 10pm because she is exhausted, she says she is wide awake as soon as she gets into bed and may lie there for several hours. When she falls asleep she then sleeps through to the alarms at 7am, when she said she ‘drags myself out of bed,’ remains exhausted. She tries not to nap during the day or sit down because she will otherwise nap. She acknowledged her ‘safety behaviours,’ avoidant of areas in the town, and coming into contact with people from the hospital or even those associated with this.”.
The MA noted the appellant’s past history as follows:
“Her psychiatrist describes her ‘having had some mild anxiety and mood problems throughout her life’ particularly relating to the loss of her father 12 years ago but has generally coped reasonably well until this most recent episode where she has had to seek treatment with psychology and antidepressant medication. The GP notes indicate a more recurrent a severe condition. She was prescribed Fluoxetine in April 2013 which was attributed ‘to depression’ and that she was possibly seeing someone called Kate from ‘Kate’s Corner.’ At the time she was seeking antidepressants. By June it was noted that the Fluoxetine working and she was reviewed for this in October 2013 prior to her lap band surgery. In April 2014 it was noted she was thinking about coming off the antidepressant, indicating that she had improved substantially. Ms Waite attributed this episode to bereavement in the context of her mother’s death and the health conditions of Thomas, her eldest. In November 2015 she was re-commenced on an antidepressant because she was not coping, had problems with her relationship and was pregnant, with irritability, low mood and concern about interfamily problems. She remained on this antidepressant until at least July 2016. Her next presentation with mental health problems were in mid-2019 attributable to relationship difficulties. This would indicate a more recurrent condition of repeated episodes of mood and anxiety symptoms associated with impairment, requiring both psychotropic and psychological input over the past decade, although each of these recurrent episodes appears to have been treatment-responsive.”
The MA then set out details of the impact of her injury on her social activities and activities of daily living (ADL’s) as follows:
“When she was first working at the hospital she was living with her husband James and their two boys, Thomas and Mason. At the time James was a ranger / compliance officer working very long hours and she did most of the shopping, cooking, cleaning as well as her part-time jobs. She said she would go to the gym outside of work, had a social life. She had been a Thermomix consultant for 10 years and also worked cleaning people’s homes several days per week. She describes no problems driving, rarely used public transport and although a somewhat nervous flyer, was able to do this.
She continues to live with James and the two boys although her husband now has a different role but still can work long hours. When she wakes in the morning she may help the boys with their lunch boxes but they generally get themselves ready. She drives them to school most days as James has already left. For 3-4 days of the week she then spends some hours cleaning clients’ homes. She does around 10-15 hours a week and does not work on Fridays as that is when she has her appointments and tries to load her week early. She says she has great clients who are always out so she doesn’t have to interact with them socially. Recently she could not go into a house where there was a client’s new boyfriend. She will drive around the local area to do this role. When she gets home she will do some of her own home chores, washing and cleaning, and tries not to sit down as she says she will fall asleep if she does. She said that James has ‘picked up more of the slack at home’ including some cooking and she at times will skip important meals. She has been a lifelong ‘comfort eater’, associated with binge-eating. She was going back to the gym recently but stopped when her sister stopped and has lost motivation. She does little else to manage her wellbeing and says that her weight is now back to about the highest it has ever been. She can take the children to sports events, and she and James do this at the weekend. She will attend their games or training but does not interact with the others. At the weekends she may do puzzles with the kids and James may go off bushwalking or hunting. She tries to avoid children’s parties as she finds these ‘horribly’ confronting and prefers James to be there. She has stopped contacting most of her friends and says she cannot recall the last time she saw them. They have increasingly stopped reaching out to her. In the evenings she will pick up the kids, they come home, chat and play. She describes watching TV in a very distracted way in the evening, not following programmes or shows like she used to. She says she is less irritable now she is not taking the Bupropion but still can be snappy with the kids and says that her relationship with James has been affected. She also said there were no major problems in her relationship with James prior which seems at odds with the contemporaneous records. James continues to be instrumentally supportive, e.g. doing her tax and reminding her for things in her diary and very supportive. She became quite tearful on describing this. She says that James at times has to remind her to shower and brush her hair and she noted that her self-care has reduced and she is embarrassed about this. When out shopping she says she is very interpersonally sensitive, defensive and almost bordering on the paranoid of worrying that people might be out to get her. She describes being highly aroused when out, wary that she will see people who work at the hospital and fearful of what they might do to her.”
Findings on examination were reported as follows:
“Ms Waite was casually-dressed, looked her stated weight, and was not unkempt. There was no formal thought disorder and she showed a reasonable focus and concentration throughout although at times became somewhat tearful, particularly when describing her state and the impact on her relationship. She has the cardinal feature of a near-pervasive low mood, and reduced interest although is not anhedonic. She has a number of biological and cognitive features of depression, high levels of anxiety, avoidance, arousal, leading to intermittent panic attacks, increased startle and a wariness and caution when out, as well as whilst driving. She described marked interpersonal sensitivity in a range of situations, not just related to her hospital colleagues but no psychotic phenomena.”
The MA summarised the injuries and diagnoses as follows:
“Ms Waite would currently meet the criteria for a Major Depressive Disorder with at least one cardinal feature and a total of five other symptoms, with anxious distress. This would be best characterised as an aggravation or remission of a recurrent Major Depressive Disorder, given the prior episodes of similar symptoms and treatments with psychotropic and psychological interventions much as now. She does not have an Alcohol Use Disorder.”
He added:
“Ms Waite was fairly consistent although her recall of her prior mental health condition and physical presentations was at odds with the contemporaneous notes as well as the triggers for her recurrence of her mood symptoms in 2019. This likely reflects the marked impact of the intimidation in September 2020 and the substantial decline in her functioning since then rather than any more conscious effort.”
The MA assessed 15% WPI, from which he deducted one-tenth, leaving a total WPI of 14%.
He then turned to consider the other medical opinions and evidence and said:
“Ms Waite’s statements support the ADLs and PIRS categories rated. I have used the notes from her GP over the past decade and her treating psychologist and psychiatrist, Mr Valente and Dr Hodgson respectively, to inform the history above.
IMC report by Dr O’Neill from 18 January 2022 corroborates her symptoms and functioning at that time.
There are reports by Dr George, consultant psychiatrist, for the insurer from January 2021, June and July 2022. These provide a similar history. In the first Dr George appears to be unaware of the extent of her prior psychological problems and makes a diagnosis of an Adjustment Disorder and that this is attributable to workplace events. In late reports he adds the diagnosis of an Alcohol Use Disorder. Ms Waite indicated that she was upset about this as she felt this was unfair and in his third report be indicated that he did not believe she had reached maximum medical improvement, in part because she needed further addressing her alcohol use.
I note the reports of Dr Smith, consultant psychiatrist, for the applicant dated July and November 2021 and March 2022. Dr Smith provides the same diagnosis. He only had a self-report of her prior psychiatric condition and took at face value that she had a brief prescription of Fluoxetine, was unaware of the subsequent episode in 2016, and of the triggers noted by her GP that actually prompted the commencement of psychological therapy with Ms Horner. For this reason I am of the opinion that there was a pre-existing psychological and psychiatric condition which contributes to the current impairment given the similarity of symptoms and interpersonal difficulties associated with these episodes. Dr Smith reiterated his diagnosis in his second report. In his third report there is the suggestion that by that stage her condition was in partial remission but would still seem to meet clinical criteria. I agree with all of the classes of his PIRS calculation and the overall whole person impairment but that there is a Section 323 10% deduction for the pre-existing condition.”.
He added:
“Because she appears to have been decompensating in the context of family issues in 2019 (although there may have been unstated contribution from her work) and the prior symptoms and interpersonal difficulties appear similar to those now but much less overt with no panic and marked avoidance, the extent of the deduction for her pre-existing recurrent mood disorder that directly contributes to the current whole person impairment is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one-tenth.”
In assessing a class 2 for Social functioning the MA said:
“The Bupropion-induced irritability has reduced but she is still snappy, difficult and there remains tension with her relationship with James. She described some difficulties in her relationship with her own family, in particular her brother, which she said is strained because he does not understand her injury and works at the hospital.”
The descriptor for a class 2 reads: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
For a class 3 it reads: “Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
For a Class 4 it reads: “Severe impairment: Unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).”
The appellant’ submissions commence with detailed extracts from various authorities on the PIRS categories. The appellant then sets out the relevant scale before quoting extensively from the MA’s findings on examination.
The appellant submits the MA erred as follows:
(a) In the PIRS Category of Social and Recreational Activities [the MA assessed] class 3: “She will go to the children’s sports games with the family but does not become involved and has dramatically reduced any other social contact, not responding to her friends.” (emphasis added)
(b) The MA assessed the appellant as having mild impairment (class 2) in respect of social functioning and provided the following justification for his decision:
“The Bupropion-induced irritability has reduced but she is still snappy, difficult and there remains tension with her relationship with James. She described some difficulties in her relationship with her own family, in particular her brother, which she said is strained because he does not understand her injury and works at the hospital.”
(c) When considering the PIRS descriptors under Table 11.4, the table measures the worker’s ability to function within society including their ability to form and maintain relationships.
(d) The MA erred by failing to consider the history he took with respect to the appellant’s social function beyond her immediate family, namely that the appellant:
(i)is unable to form any new relationships due to severe symptoms of interpersonal sensitivity, borderline paranoia, hyperarousal, anxiety, occasional panic attacks and social withdrawal to the extent that she has had to cease employment with Thermomix and on one occasion has been unable to attend a cleaning job due to a new and unknown person being present.
(ii)Has ceased all contact with her pre-existing friends, thereby causing those relationships to end.
(iii)Actively avoids social contact when out in public social settings including shopping, cafes, sports games and children’s birthday parties.
(e) The MA’s assessment is inconsistent with the evidence obtained on examination…Comparing the appellant’s social function to the examples in the relevant PIRS table indicates that it is not a matter about which “reasonable minds may differ” and the appropriate assessment is in class 3 or class 4.
The respondent submits:
(a) No assessor who has assessed the appellant had found a class 3 or class 4 impairment under the PIRS for social functioning. Dr Smith, qualified by the appellant, in his report of 30 March 2022 also assessed a class 2 for social functioning… Dr George qualified for the respondent found the appellant had not reached MMI and thus did not undertake a PIRS assessment.
(b) The MA assigned a class 2 rating for social functioning…this is a perfectly adequate and appropriate assessment, and is consistent with the guidelines.
(c) The guidelines specifically note that the rating under Table 11.4 is for “Social Functioning (relationships) - see page 55 (paragraph 11.11) of the guidelines. Broader social impairments are to be assessed under the category of “Social and recreational activities”.
(d) The extracts of the MAC the appellant outlines have been appropriately accounted for within the MA’s assessments under the categories of Social and Recreational Activities, travel and employability.
(e) Her own statement evidence suggests that her roles of cleaning and selling Thermomixes “do not involve any real social interactions.” Within that same statement, the appellant also asserts that she has lost contact with “a lot of my friends and extended family”: this is not ‘ceasing all contact with all her pre existing friends’.
(f) The MA’s conclusion was open to him on the evidence. He gave his reasons, which were adequate and exposed his process of reasoning, as he is obliged to do.
We agree with the thrust of the respondent’s submissions for reasons that follow.
To begin with, in our view the appellant has confused the category of social functioning with that of social and recreational activities.
Although, as the MA acknowledged, the appellant experienced “some difficulties in her relationship with her own family, in particular her brother…” there is simply no compelling evidence that a class 3 rating is appropriate, let alone a class 4.
There is no suggestion that the appellant’s pre-existing family relationships have ended. They have clearly been strained as the MA accepted.
Similarly, there is no evidence that previously established relationships have been “severely strained, evidenced by periods of separation…”
In the decision of Glenn William Parker v Select Civil Pty Limited1, Harrison AsJ stated as follows:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, where it is stated at [33]: ‘..the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the Appellant face to face. ...’
In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
Although not bound by the opinions of other medical practitioners, those opinions do form part of the evidence which an MA is required to consider. As the respondent pointed out, no-one else assessed a class 3, let alone a class 4 in the category the subject of appeal.
Chapter 1.6 of the Guidelines makes it clear that “assessing permanent impairment involves clinical assessment of the claimant as they present on the day…”.
In our view, the MAC was both thorough and detailed. The MA’s assessment was open to him on the whole of the evidence, and we cannot see that her erred as the appellant submits.
The appellant’s submissions in our view simply reflect “a difference of opinion…about which reasonable minds may differ…”
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2023 should be confirmed.
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