Ward v Sydney Health & Care Services Pty Ltd
[2024] NSWPICMP 572
•15 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ward v Sydney Health & Care Services Pty Ltd [2024] NSWPICMP 572 |
| APPELLANT: | Michelle Ward |
| RESPONDENT: | Sydney Health & Care Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 15 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against assessment under three psychiatric impairment rating scale (PIRS) categories; appellant alleged Medical Assessor reached conclusions without putting them to worker during examination; breach of procedural fairness; Held – demonstrable error was made out; re-examination led to same assessment; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 March 2024 Michelle Ward (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 March 2024.
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 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).
RELEVANT FACTUAL BACKGROUND
Ms Ward was employed as a disability support worker on a casual basis with the respondent. She was wrongly accused of misconduct by a client. Issues arose with a new employment contract, which she was strongly encouraged to sign, but refused. Ms Ward was separately called into a disciplinary meeting. There was ultimately a breakdown in the work relationship, which led to the work injury currently being claimed.
Ms Ward proceeded through the dispute resolution pathway at the Personal Injury Commission (Commission), which resulted in the dispute being referred to a Medical Assessor for an assessment of permanent impairment. The MAC issued as a result of that assessment is under appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel were satisfied that the MAC contained a demonstrable error. During the course of the assessment, the Medical Assessor reached certain conclusions about the worker without giving her an opportunity to respond.
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
Doug Andrews of the Appeal Panel conducted an examination of the worker on 1 August 2024 and reported to the Appeal Panel. Relevant parts of that re-examination report are included in the decision below.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant notes that there has only been one alternative assessment under the Psychiatric Impairment Rating Scales (PIRS), and the differences between that assessment (of Dr Allan) and the Medical Assessor’s should have been explained in detail.
The appellant submits that the Medical Assessor failed to provide the appellant with an opportunity to respond to observations made during the examination which led to a conclusion different to that of Dr Allan and contrary to the history given.
The appellant specifically challenges the findings and comments made in three of the PIRS:
(a) self care and personal hygiene, concerning her coloured hair and painted nails;
(b) social and recreational activities, concerning her need for a support person in some activities, and
(c) travel, concerning her ability to travel without a support person.
The appellant also submits that there is no information about the time allotted for examination and whether that was adequate, suggesting that the appellant was not provided with sufficient opportunity to provide a considered response. The appellant also takes issue with references made to s 11A in the MAC.
In response the respondent submits that the Medical Assessor was meticulous with taking a full history of the appellant’s chronology of complaints. The submissions are based on a disagreement rather than a sufficient ground of appeal. The respondent submits that in relation to each of the PIRS challenged by the appellant, the classes assessed by the Medical Assessor were correct and in accordance with the evidence.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
As has been set out above, during the preliminary review the Appeal Panel were satisfied that the MAC contained a demonstrable error. Specifically, the Appeal Panel were satisfied that the Medical Assessor had based her conclusion in the PIRS on matters that had not been put to the worker during the assessment, resulting in a breach of procedural fairness. This is particularly evident in the Medical Assessor’s reasons for assessing class 2 in self care and personal hygiene, whereby the subjective description of self-care appears to have been overshadowed by the worker’s appearance during the assessment. It is not clear that internal conflict was brought to the worker’s attention, and given the apparent weight placed on it by the Medical Assessor, the Appeal Panel are satisfied that this involves a demonstrable error, being a breach of procedural fairness.
Whilst the Appeal Panel are satisfied the MAC contains a demonstrable error, that does not mean that the Appeal Panel accepts all of the appellant’s submissions or that the assessment of impairment should be different. The Appeal Panel would note that the difference between the assessment of Dr Allan and that of the Medical Assessor is of no relevance. A Medical Assessor is not bound by other opinions provided as part of the assessment of a medical dispute, but in each occasion is required to reach his or her own conclusion based on the assessment conducted. That material should be considered but is not binding (see State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, applying Wingfoot Partners Pty Ltd v Kocak [2013] HCA 43). It is clear that the Medical Assessor considered the other medical opinions, as set out on pages 7 to 9 of the MAC. The difference between the assessment of Dr Allan and the Medical Assessor is also explicitly dealt with in the MAC. In that regard, there has not been a failure to provide adequate reasons as asserted by the appellant.
The Appeal Panel does not accept that the failure to record the length of time taken during the examination is of any significance. The Guidelines do not require that to be recorded and the submission that the Medical Assessor failed to give her adequate time to answer questions cannot be accepted. It is an unverifiable assertion and cannot constitute a demonstrable error.
Further, the Appeal Panel does not accept that the Medical Assessor fell into error by referring to “irrelevant evidence pertaining to section 11A”. It is not clear precisely what evidence the appellant is referring to in submissions. Regardless, the Medical Assessor clearly assessed the worker in accordance with the referral. She did not make any assessment relying on s 11A or comment upon the veracity or otherwise of that evidence. The only references to s 11A are made in relation to commentary on the review outcome (maintaining the liability dispute) and the report of Dr Kaplan (on which the liability dispute was based).
Accordingly, based on the Appeal Panel’s satisfaction that the MAC contained a demonstrable error, the Appeal Panel determined that it was appropriate that the worker submit herself for re-examination. Doug Andrews, Medical Assessor member of the Appeal Panel, conducted the re-examination on 1 August 2024, providing a report to the Appeal Panel. That report is as follows:
“Matter Number: | M1-W7681/23 |
Appellant: | Michelle Ward |
Respondent: | Sydney Health & Care Services Pty Ltd |
Date of Determination: | 1 August 2024 |
Examination Conducted By: | Douglas Andrews |
Date of Examination: | 1 August 2024 |
1. The worker's medical history, where it differs from previous records
Ms Ward stated that she has become more anxious since her assessment with the MA in March 2024, noting that she had found the process stressful.
Her medical history remains much the same.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Ward lives in a freestanding home in Barrack Heights, New South Wales, with her 27-year-old son, who works full-time. Her adult daughter moved out about 10 months ago.
Ms Ward commenced work with Sydney Health & Care Services in May 2018 and ceased employment in November 2020. She has not worked in any capacity, paid or voluntary, since.
She appealed in three PIRS categories—self-care and personal hygiene, social and recreational activities, and travel—where the MA had assessed her as class 2, 2, and 1, respectively. The appellant argued that the classes should each be increased by 1.
Treatment:
She continues to see her general practitioner, Dr Aileen Avenido, psychologist, Mr Rodney Ward, and psychiatrist Dr Narinder Panesar. The psychologist and psychiatrist are each seen every two months, with the psychologist offering supportive psychotherapy and activity structuring and the psychiatrist offering support and medication supervision.
She is on venlafaxine 225 mg daily and has recently added quetiapine 25 mg at night as a sleep aid.
There have been no hospitalisations or other treatments.
General health:
Ms Ward’s general health has not changed.
She smokes 15-20 cigarettes a day and drinks four standard drinks of alcohol, favouring vodka in a mix, on about three days a week.
She takes medication for hypertension, hyperlipidaemia, menopause and pre-diabetes.
She is eating a healthy diet, although she often skips meals. Her weight has fluctuated over time within a narrow band.
Current symptoms:
Ms Ward stated that her symptoms have ‘gone up and down’, with a trend of being much the same as when she left work in 2020.
Her mood is often low and varies with circumstances without diurnal variation. She has a reduced capacity to experience positive emotions but enjoys some things, such as when her daughter visits. She is irritable and ‘snappy.’
She is pervasively anxious and has lost trust in others. She worries about many things and experiences panic three or four times every two weeks, often triggered by trivial events.
She has low energy and motivation.
She has subjective challenges with concentration, attention and memory.
She has had occasional thoughts of suicide, but these have not been prominent recently.
She has poor sleep habits with no set bedtime. She suffers from initial and middle insomnia.
She often skips breakfast and lunch but has been preparing himself meals recently
Diagnosis:
Ms Ward’s symptoms are consistent with a persistent depressive disorder with an ongoing major depressive episode and anxious distress, as per DSM-5 criteria.
Activities of daily living:
Ms Ward generally rises between 5 and 7 AM. She looks after her pets and makes herself a cup of coffee.
She does housework, including laundry, cleaning, cooking, and shopping, with some help from her son on weekends. However, she maintains a lower standard than she did before her work injury.
She showers and brushes her teeth about once a week without prompting. She said, ‘I do this when I get motivated enough.’
Her daughter helped dye her hair purple, yellow, and green five weeks ago. She doesn’t wear makeup or jewellery or have her nails done.
Before becoming unwell, she had a group of 5-6 friends and was in a long-term relationship with Darren. She enjoyed going out to lunch and dinner and a pub for poker nights
She had been with Darren since 2013, and they married in 2022. For their honeymoon, they travelled to Hamilton Island, Cairns, Darwin, and Melbourne to see the Grand Prix and Canberra to visit a wildlife park. During the honeymoon, they hired a yacht and travelled between islands.
She separated from Darren in 2023 because he struggled with her moods and anxiety. They remain friends and occasionally go out together.
She celebrated her son’s birthday in April by visiting a restaurant with family, including Darren and his children.
Late in 2023, she flew alone to Bundaberg to visit her sister.
She remains close to her son, daughter, sister, and 4-6 friends. She has a civil relationship with Darren and has hopes of reconciliation.
The appeal:
Self-care and personal hygiene – Ms Ward lives with her adult son but is independent, and he does not act as a support person. She does housework, including laundry, cleaning, cooking and shopping, with some contributions from her son. She maintains a lesser standard than she did before her injury. She neglects hygiene, showering and brushing her teeth once a week. She is less attentive to her appearance. She had been drinking alcohol excessively but has moderated this. She often skips meals. She can live independently without regular support.
Social and recreational activities – She occasionally goes to a restaurant or a café with friends or family. She plays online poker for one to two hours a day. Since her injury, she has gone on an extended holiday with her husband and visited her sister in Cairns. Her outings are less frequent, and she sometimes refuses invitations.
Travel – She is independent with local travel and can drive to shops and medical appointments. Her psychologist and psychiatrist are about a 20-minute drive from Wollongong. She travelled extensively with her husband in 2022 and flew alone to Bundaberg late in 2023. She functions within the normal variation in the general population.
3. Findings on clinical examination
I assessed Ms Ward using an audiovisual link for 70 minutes. The connection quality was adequate for a comprehensive assessment.
She presented casually. She had coloured hair and wore glasses, but she did not wear make-up or jewellery.
Her mood was anxious and depressed. Her anxiety was obvious, and her affect was restricted, consistent with her stated mood and congruent with the interview content.
There was no evidence of any disorder of thought form or perception.
She gave a discursive account and occasionally needed redirection. She struggled with some details and event sequences.
When asked if she had anything further to add, she agreed that we had covered everything necessary.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”
On appeal, the appellant has challenged three of the PIRS classes assessed by the Medical Assessor, on each occasion suggesting that the assessment should have been higher. In addition to the above reasons provided on re-examination, the Appeal Panel would make the following observations about the PIRS challenged by the appellant.
In undertaking this assessment, the Panel notes Ms Ward is a 50-year-old woman, who separated from her husband and was living with her two children until her daughter moved out. She was born in Armidale and grew up in Australia.
Self care and personal hygiene
The Medical Assessor provided the following in the PIRS table on page 12 of the MAC:
“Ms Ward reported that she does not take a lot of care of her looks and showers infrequently. She skips meal, neglects her personal care, and that her appetite is quite poor. She reported that she does minimal household chores and only if encouraged by others. She later said that she does not cook a lot and sometimes she will cook and other times her son will cook food. She rarely does the cleaning and her son will mostly do the vacuum. I have noted the above subjective description of her self-care. I have also noted that during the assessment, Ms Ward was not overly dishevelled. She was reasonably well-groomed during the assessment and had no symptoms suggestive of self-neglect.”
The appellant’s submissions relying specifically on the following comment of the Medical Assessor, made in the context of commentary on the report of Dr Allan:
“However, objectively, Ms Ward was quite reasonably dressed and was not overly dishevelled. Her hair was coloured and her nails were painted. I do not believe that this warrants moderate impairment in self-care and personal hygiene.”
This commentary is consistent with the finding in the PIRS table set out above. The appellant submits that the Medical Assessor did not put the observations to the appellant to allow the appellant to provide an explanation. As set out above, the Appeal Panel were satisfied that this was in error. There is an apparent inconsistency between the self-report of functioning provided and the Medical Assessor’s report of the appellant’s appearance at the examination.
During the re-examination, it was noted that Ms Ward lives with her son but she was independent, is able to complete housework with some contribution, but maintains a lesser standard before her injury. Her main area of incapacity is with her hygiene. She showers and brushes her teeth generally only once a week, although without the need for prompting.
The relevant criteria for self care and personal hygiene appears in Table 11.1 of the Guidelines:
“Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
Whilst the Appeal Panel acknowledge that Ms Ward neglects her personal hygiene, showering and brushing on an inconsistent basis, the presentation of the worker must be made with consideration given to all of the class descriptors. These self care activities are completed without prompting. The entire presentation of Ms Ward suggests that she is able to live independently. She completes housework, including cooking. She lives with her son but does not rely on him for support. Considering the totality of the evidence available, based on the reporting of the worker provided during the re-examination, the Appeal Panel are of the view that Ms Ward has a mild impairment in this PIRS, for an assessment of class 2. This is consistent with that provided by the Medical Assessor.
Social and recreational activities
The Medical Assessor assessed class 2 in this PIRS. The Medical Assessor member of the Appeal Panel, when conducting a re-examination of the appellant, considered the relevant history reported in relation to this PIRS, consistent with the nature of the appeal being by way of review, limited to the grounds for appeal provided in the submissions.
The Medical Assessor records the following in the PIRS table in the MAC:
“Ms Ward reported that she used to enjoy going to clubs and playing bingo and poker. She said that she has stopped doing these as she gets quite anxious in crowds. She, however, catches up with her friend every 2-3 months over lunch. She leaves home to attend medical appointments with her GP and specialists. She takes her dogs out for walks when she feels motivated enough. However, she does not exercise nor has she been engaging in regular hobbies, nor socialising regularly as before.”
The appellant submits that the Medical Assessor “placed considerable significance on the absence of a need for a support person in some activities”. No specific reference to the reasons in the MAC has been provided. It is likely this is in reference to the Medical Assessor’s commentary on the assessment of Dr Allan, where it is recorded:
“I respectfully disagree with this as Ms Ward has been able to go out without a support person. In fact, she has been able to go out to catch up with her friend every 2-3 months over lunch, and attends her medical appointment without any support person. She even takes her dogs out for walking without a support person. This warrants mild rather than moderate impairment.”
Reasons provided in a MAC must be read as a whole and reasons must be read in context. Here, the Medical Assessor is explaining why she disagrees with the opinion of Dr Allan, who assessed class 3 in this PIRS.
The appellant’s submission also ignores the Guidelines which require the consideration of whether a support person is required at the attendance of events:
“Class 2 Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 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 presence or otherwise of a support person is accordingly a relevant consideration when assessing a worker in this PIRS. On re-examination, the Medical Assessor took a largely similar history to that recorded in the MAC, including playing poker, and going to a café or a restaurant with friends, although on a less frequent basis. There is no evidence of a requirement for a support person at such events. The Appeal Panel also notes this history is consistent with her pre-injury activities, where she enjoyed poker and going out to lunch and dinner. It is clear that Ms Ward’s activities in this regard have reduced to an occasional basis, but she still attends these events and does not require support to do so.
Based on all of the above, the Appeal Panel are satisfied that an assessment of class 2 in this PIRS is appropriate.
Travel
The Medical Assessor assessed class 2 in this category. The reasons in the PIRS record:
“Ms Ward is able to drive and goes to the shopping malls in the afternoon. She denied having any near misses. She said that she went to Cairns for her honeymoon. She went to visit her sister in Bundaberg and flew there. She is able to drive to Wollongong to see her Psychologist and Psychiatrist. There have been only minimal changes in her capacity to drive and travel.”
Again the appellant’s submissions focus on the Medical Assessor’s commentary regarding a support person, submitting that the observations were not put to Ms Ward. It is likely that this reference is made with regard to the commentary concerning the report of Dr Allan, which records:
“I have, however, noted that Ms Ward was able to travel interstate to visit her sister in Bundaberg and flew there without any support and been there on her own. She is able to drive to Wollongong all by herself and is able to go to the shopping mall without needing any support person. This warrants class 1 rather than class 2 impairment.”
Whilst the Appeal Panel accepts that there is a requirement to afford a worker procedural fairness during an assessment, and in some circumstances a failure to put something to a worker will result in a breach of that obligation. That does not mean that every potential adverse outcome must be put to the worker. In relation to ground one, concerning self care and personal hygiene, the Appeal Panel were satisfied that the Medical Assessor should have raised issue regarding the worker’s presentation on examination, which was inconsistent with her reported level of functioning.
Here, the appellant submits that Ms Ward should have been asked how she was able to engage in travel without a support person. The Appeal Panel does not accept that is required by the guidelines. Whether a person can travel with a support person is an inherent part of the consideration set out in the Guidelines for this PIRS. The five classes in this PIRS are:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3 Moderate impairment: Cannot travel away from own residence without support person. Problems may e due to excessive anxiety or cognitive impairment.
Class 4 Severe impairment: Finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5 Totally impaired: May require two or more persons to supervise when travelling.”
Each class requires the consideration of the extent to which a support person is required, expressed in different words. Class 1 requires consideration of “supervision”. Classes 2 and 3 refer to a “support person”. Class 4 refers to a “trusted person”, and class 5 to “two or more persons to supervise”. Inherent in the assessment of this PIRS is the level of supervision or support required when travelling. The placing of a worker in the appropriate class requires a consideration of the history provided during the examination as well as the material made available to the Medical Assessor.
The Appeal Panel are not satisfied that the MAC contains a demonstrable error in that regard. There was no requirement in this circumstance to put any proposition to the worker. The Medical Assessor has based her conclusion on an appropriate consideration of the criteria set out in the Guidelines.
The Appeal Panel also adopt the findings made during re-examination, which records independence with travel to shops and medical appointments, extensive travel in 2022, and an ability to fly alone. This is consistent with no or a minor deficit, attributable to the normal variation in the general population. Nothing recorded would take the appellant outside of a class 1 assessment. Accordingly, the appropriate assessment in this PIRS is class 1.
Conclusion
For the above reasons, although satisfied that the MAC contains a demonstrable error in relation to the assessment of self care and personal hygiene, the Appeal Panel consider that the assessment made under each of the PIRS challenged by the appellant are correct. Accordingly, the MAC will be confirmed.
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