Wein v Catholic Schools Office - Diocese of Maitland-Newcastle
[2024] NSWPICMP 715
•15 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wein v Catholic Schools Office – Diocese of Maitland-Newcastle [2024] NSWPICMP 715 |
| APPELLANT: | Marianne Wein |
| RESPONDENT: | Catholic Schools Office – Diocese of Maitland-Newcastle |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 15 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale (PIRS) categories; self-care and personal hygiene; concentration, persistence and pace; employability; Held – Medical Appeal Panel found error on all three categories; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 June 2024 the worker Ms Marianne Wein (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 June 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 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 did not seek that she undergo a re-examination by 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 not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel for it to make a determination.
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.
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):
othe degree of permanent impairment of the worker as a result of an injury (s319(c))
owhether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
owhether impairment is permanent (s319(f))
owhether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 27 September 2023
Body part/s referred: Psychiatric and psychological disorders
Method of assessment: Whole Person Impairment”
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 guidelines
Chapter, 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 Injury
27 September 2023 (deemed)
Chapter 11
Guidelines
11.1-11.3
11.4-11.6
Guidelines
11.11,11.12
Table
:11.1,11.2,11.3,11.
5,11.5,11.6
8 %
0 %
8 %
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
8 %
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
Marianne Wein
Claim reference number (if known)
W2490/24
DOB
xxxx
Age at time of injury
Date of Injury
27 September 2023(deemed)
Occupation at time of injury
School teacher
Date of Assessment
3 May 2024
Marital Status before injury
Married 19 years
Psychiatric diagnoses
Major depressive disorder
Psychiatric treatment
GP follow-up, psychiatrist and psychologist follow-ups. She has received antidepressants and psychotherapy.
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Ms Wein told me that her self-care and personal hygiene is not great. She would stay in her pyjamas and does not care about what she wears. Her husband Peter prompts her to change clothes and he organises her to go to the hairdresser. She does not put makeup on. Ms Wein brushes once a day and showers most days. Ms Wein would wake up then have breakfast does not have lunch and has a dinner. Ms Wein does not do cleaning, vacuuming, laundry, however, she may feed the dogs at home. Her husband looks after her children and her husband will do grocery shopping as well. In my opinion, Ms Wein will be able to live independently and look after herself adequately and she would classify under mild impairment in this category.
Social and recreational activities
3
Ms Wein has no existing social life and does not socialise. She would rarely socialise with people. In January, she went for a coffee. She always goes out with someone and goes with Peter and her boys. Her boys play sports and she does not go to watch. She feels overwhelmed and worries about questions from people she knows in such social settings. In my opinion, Ms Wein rarely goes out to any social events mostly when prompted and will not go out without her husband. She would classify under moderate impairment in this category.
Travel
2
Ms Wein has not driven for quite a while and finds it overwhelming to drive. She finds herself anxious and does not feel safe. She has driven to her doctor which is closed by but has not gone for long distance. She can sit in the car for long drives if Peter drives. In 2023 January, she went to a short cruise in Tasmania. She said it was planned when she was working so she went for it but it was very difficult and overwhelming. A year ago, she went to Blue Mountains for a weekend but ended up coming home as it was too much. In my opinion, Ms Wein can travel without support person but only in a familiar area and she would classify under mild impairment in the category of travel.
Social functioning
2
Ms Wein’s relationship is not good though she has a very supportive husband. They often argue and have a lot of tensions and fights. She feels guilty and remorseful for that and her boys are quite affected by this. She would sit with her boys but does not interact well with them. She cannot go out and so they get bored at home so they go to a holiday program during school holidays. She has lost friendships. A friend may visit her once a fortnight or once a month. In my opinion, Ms Wein’s existing relationships are strained though there was no evidence of any periods of separation or domestic violence. She would meet the criteria of mild impairment in the category of social functioning.
Concentration, persistence and pace
2
Ms Wein described her concentration as poor and finds it difficult to focus for sustained period. She cannot multitask and needs help from her husband Peter to read and reply to the emails. In my opinion, she would be able to undertake a basic course but at a slower pace and normally can focus on tasks for a short period of time and then feels fatigued. During the assessment, she was able to focus quite well throughout the interview for almost an hour.
Employability
4
Ms Wein has not thought of working and said that all her doctors are of the opinion that she cannot return to her teaching job. She has not explored any other form of work. She would like to do something in the future and has not given up and it depends on her mental capacity and the improvement in her symptoms. In my opinion, she would be able to work less than 20 hours per fortnight however, her pace would be reduced and she may work for one or two days at a time.
Score
Median Class
2
2
2
2
3
4
2
Aggregate Score Impairment
Total
%
+
+
+
+
+
15
8 %
Pre-existing impairment = 0 %
Treatment effects = 0 %
Final WPI = 8 %”
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 assessments he made under three of the PIRS categories, namely social and recreational activities, concentration, persistence and pace and employability, such that he erred as follows:
(a) in assessing a class 2 for self care and personal hygiene when he should have assessed a class 3;
(b) in assessing class 2 for concentration, persistence and pace when he should have assessed a class 3, and
(c) in assessing a class 4 for employability when he should have assessed a class 5.
In summary, the respondent employer, Catholic Schools Office – Diocese of Maitland-Newcastle, (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 respondent’s submissions included that the appellant has failed to establish error and seeks only to cavil with the clinical judgment of the Medical Assessor which has been exercised appropriately and in accordance with correct criteria on the day of examination and having had due regard to the other evidence before him. The Medical Assessor’s assessments were entirely open to him on the balance of the evidence before him and does not amount to demonstrable error.
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/her clinical expertise to bear and exercise her 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 worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.
The Medical Assessor recorded a history as follows (emphasis in original):
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Wein told me that the date of initial injury was 26 May 2021 after she fell over at work when she tripped over while she was training students and she injured her right wrist and right shoulder. In June 2021, she consulted her GP for the first time for her psychological injury. I note that the date of injury in the documents provided by the commission is 27 September 2023.
Ms Wein has not worked since 14 November 2022. Ms Wein has been employed by Catholic Schools Office Diocese of Maitland, Newcastle and has worked in few different schools. She stopped her first job at St Mary's Warners Bay in December 2021 and resigned from that position because of problems at work. Ms Wein got another job at Holy Cross at Glendale in January 2022.
On being asked about her injury, Ms Wein said that her physical injuries are fine. On being asked what was the physical injury at work, Ms Wein said that she fell over and injured her right knee and her right shoulder and right wrist. She had physio for those injuries and continued the physiotherapy sessions. She also saw a hand surgeon for her wrist and had carpal tunnel surgery on her wrist and following that in around January 2022, she was on a break. She took time off, took rest for about six months to heal and got her shoulder and knee healed within the first four to six months. She told me that basically her wrist has been well and truly healed since about June 2022 which is about 18 months and it has been fine.
Ms Wein said that when she had the physical injury after falling off at work, she had some time off and she went to go back to work following that but there were problems at work. Because of those problems, she consulted her doctor as she was feeling depressed and anxious, this was around in June 2021. Ms Wein stopped working in November 2022 and she told me that this was because of her psychological injuries.
Ms Wein told me that when she went back to work, her certificate of capacity was challenged. Though she had still seen the physio and has also been seeing her psychologist who she continues to see. Her psychologist is Alix Bilton and between her and her doctor they decided that she should go back to work following the physical injuries and that she can go back in a partial capacity. After a few consultations, this was decided that she should go back to work on a Monday for two hours and doing some work from home as well so which involved some typing and some office work as she continued to have the restrictions on her work due to her wrist and her shoulder. She told me that her wrist and shoulder were still quite sore and her knee had a brace on it. She could not walk properly, could not dress herself properly or do her hair or put her underwear. It was really hard for her because her wrist was sore most of the time. It was suggested that she does some typing from home on a Monday and then do some work at school classroom teaching on a Wednesday and Friday. When Ms Wein presented this information written on her certificate of capacity and told Joanne Dennis, who is the diocesan who was also her return-to-work coordinator. She was told to add information on it. Ms Wein was told on the phone that basically the principal at the time would not be happy with those days of work and she would be wanted to work on consecutive days rather than non-consecutive days.
Ms Wein was told that her doctor, Dr Boyd, could not stipulate the days of work and Ms Wein was not able to work in this pattern so she left. She was called a couple of days later and was told that the principal was not agreeable to her working on non-consecutive days and her employers wanted her to work Monday, Tuesday not Monday, Wednesday, Friday. To which Ms Wein replied that she cannot do that. She is in a lot of pain and has restrictions due to her injuries in her wrist which is quite sore. Ms Wein told her employers that in that case she will have to leave.
Ms Wein said: ‘I really wanted to go back to work, and I was really upset by it because I had already had time off when I fall over and then they were the school holidays. This was after the school holidays, so it is like a month or more of work when I went to go back but they kept saying no and they kept me off work for an extra week longer than what I was supposed to. I had to go in a week later on the Friday which was 16 July and I remember the date. I remember it quite clearly when I had to go in and have a meeting with them and talk to them about my restrictions and my capacity. I wanted to explain what I could do but the meeting was so demeaning and awful because I was in a lot of pain physically. I was really trying and on my days off I was going to physio and psychology. I was already feeling anxious about going back to work because I knew, I just knew how hard it could be given my job restriction and the work that I needed to do’.
Ms Wein continued to mention: ‘in the meeting I had to explain everything to them and sit there with them and try to work out a return-to-work plan. When my doctor had already stipulated everything on the certificate of capacity. I did go back and I did computer work at home for two hours on the Monday and that was really hard given my wrist as I could not bend it’.
Ms Wein said: ‘The actions that the physio used to get me to do is to bend it back and it is fine now and I can do it without any problem but at that time I could not do the movement. My hand is shaking now because I am anxious but at that time, I used to get the shaking as well and would feel overwhelmed and really stressed. I could not move my wrist; I could not extend my wrist so the surgery I had helped me with that’.
Ms Wein showed me her hand and said ‘the surgery I had was through here, did the incision there up through here and that actually alleviated all the pressure, but I had pain going up to my elbow. I could not extend my hands behind my head. I could not put my hands above my head and I found it difficult to write on the board in the classroom. I found it difficult to type. I found it difficult to write or mark student books and it was hard to hold a pen in that pattern and it was really difficult to work on computer as well’.
Ms Wein continued to mention: ‘after doing the computer work on Monday the following Wednesday I went back to work and because basically I had stood up for myself, I said I cannot do those days of work. I cannot work on a Monday all day at school, and I cannot work on a Tuesday after that like Monday-Tuesday in a consecutive manner’. Ms Wein continued to mention ‘following that the attitude of the principal changed towards me. She was very cold, and I felt very isolated when I returned to work. She did not speak to me. She did not greet me. She ignored me and other members of the staff did that as well. I was in an executive role so I was not just a classroom teacher, but I was the religious education coordinator as well. I was basically in a position with the principal and the assistant principal and so I was like in a middle management position and there were two other coordinators so there were five people on that executive staff. I worked closely with and the previous year all through the COVID times which were hard. We were doing remote learning and I did all of that working really closely with these people and when I returned to work most of them all three of them from that executive panel not one but all three of them the principal the assistant principal and the others just ignored me and not once did they ask me whether I was okay whether I was coping and if I needed anything. It appeared as if everything was an effort for them. It was an effort for them to change the playground duty roster to accommodate me in an order because I could not do it as I had a brace on Monday, and I could not move properly. It was not until later on after more consultations with Dr Boyd and with Alix my psychologist and physio that everyone decided, and they helped me further as far as communicating with return-to-work coordinator Joanne’.
Ms Wein said ‘It was decided to bring in some supports in the classroom to help me and they also employed an external rehab provider so those things happened but basically, I felt the principal's attitude changed towards me and she just took issues with me because I could not perform. I could not do the high-level tasks in the high-level managerial work that was required and that she wanted me not to be involved as well. I decided to step down from a religious education coordinator role and I just felt that with the treatment I was receiving from them the way I was feeling I panicked. I could see that my mental health started to get affected. I was having panic attacks, was anxious and I was not sleeping well. I was extremely anxious all the time just felt that I could not do it and that I was not enough given enough support to do things. So finally, I decided to step down from the role because of my restrictions with my wrist and I just focused on classroom teaching’.
Ms Wein told me that when she went to the second school, she was still anxious and having panic attacks. She continued treatment with her psychologist Alix since June 2021. She has also been on medication. She has been on duloxetine the initial dose was 30 mg and later 60 mg in a day. It was started by her GP Dr Boyd in July 2021 and now she is on 120mg of duloxetine in a day. Ms Wein has received other treatment since November 2022. She has seen psychiatrist Dr Modem when she was weaned off duloxetine and fluoxetine was started starting from 20 mg and later to 40 mg but she developed side effects. She was also on sertraline which gave side effects as well. She had DNA test to find out which medication she will respond to. She also takes Prazosin 1 to 2 milligram at night time as PRN for sleep issues.
I have noted the letter from Broadmeadow Medical Centre by Dr Owen Boyd dated 18 October 2022 and 30 January 2024 which mentioned a past history of PTSD, sinusitis, migraine, hypothyroidism, right endoscopic carpal tunnel release and her current medication is duloxetine 60 mg two capsules daily , doxycycline 100 mg twice a day, Ferrograd C 325 mg/500 mg tablet, levothyroxine 100 mcg one tablet daily for six days and levothyroxine 25 mcg one tablet once a week and levothyroxine 50 mcg one tablet one day per week, Prazosin 1 mg tablet in the evening.
I have noted the letter by Alix Bilton at AB Psychology dated 15 July 2021. Alix reported the most appropriate diagnosis for Ms Wein work related psychological symptoms as adjustment disorder injury related. Marianne reported no mental health problems prior to her injury. Subsequent to her injury, she developed anxiety about the prognosis for her capacity to return to full pre-injury duties especially in context of pressure by her employer to return to pre-injury duties as soon as possible. She has regularly experienced initial and middle insomnia due to worry about returning to work and worry about her physical capacity. She experiences low mood, lack of motivation and tearfulness. She has consistently reported feeling easily overwhelmed and that her mood has impacted her family relationships. In my opinion, employer support is key to her improvement as this underpins her confidence to return. Lack of appropriate support and pressure to take on pre-injury responsibilities could undermine her already low confidence and lead to worsening of her mental health. In my opinion, the return to work goal of resuming pre-injury duties is appropriate if her return to work strategy is supported by her employer. Lastly, I would also recommend psychological therapy to assist her to develop strategies to manage her anxiety about re-injury and commence work at her pre-injury workplace and to develop confidence to return to her pre-injury duties and her pre-injury workplace.
I have noted the letter by Alix Bilton at AB Psychology dated 9 May 2023. Alix who is a registered psychologist at the centre noted I believe Marianne's symptoms fit the criteria for PTSD with major depressive disorder substance induced. I believe group psychological therapy could be helpful but presently Marianne's psychological symptoms would preclude her from attending. With improvements she may benefit from attending. In the meantime, she has attended psychological and psychiatric treatment along with online PTSD and CBT courses. She has reported benefit from all these sources of treatment.
I have noted the comprehensive mental health assessment record by Dr Karthik Modem, Consultant Psychiatrist, at Dokotela, dated 11 November 2022. Dr Modem noted based on a report of significantly stressful events/assault arising from discharging her work, current assessment and screening tools administered today, she meets criteria for post-traumatic stress disorder. There are no other symptoms suggestive of any hypomania, mania or psychosis. She did not report having any thoughts, plans or intent to harm self or others. Dr Modem recommended treatment for post-traumatic stress disorder including cognitive behaviour therapy (CBT), psychotherapy, exposure therapy and eye movement desensitisation and reprocessing (EMDR). He suggested switching to SSRI by gradually reducing the duloxetine by 30 mg every three days until we stop the medication and commence duloxetine 10 mg mane with gradual increments by 10 mg every week until a dose of 40 mg is reached.
I have noted another letter by Dr Karthik Modem, Consultant Psychiatrist at Dokotela, dated 7 March 2023. Dr Modem reported based on a report of significantly stressful events assault arising from her discharging of work, current assessment and screening tools administered, she meets criteria for post-traumatic stress disorder. Unfortunately, she is unable to tolerate the medication, necessitating a switch to different medication to reduce fluoxetine by 10 mg every three days and stop the medication. Commence vortioxetine 5 mg at night-time.
I have noted the discharge summary from James Fletcher/Mater Mental Health Service dated 30 January 2024. The summary stated, warrant representation due to worsening of depressive symptoms and referred by a GP for further mental health assessment. There has been an issue between her psychiatrist and WorkCover psychiatrist over her diagnosis. She is clearly suffering from PTSD but the diagnosis of depression appears to be incorrect. She is most likely suffering from an extreme adjustment disorder with depressive features. Her suicidal ideation was brief and caused by her current life circumstances. She has never experienced these thoughts before, does not think that she would ever act on that thought and describes her family and others as a good protective factor. She is suffering from adjustment disorder and PTSD but would not benefit from an admission to this facility as it does not provide the treatment that she would most benefit from. Patient's husband, Peter, attended hospital and was comfortable with taking her home.
I have noted the certificate of capacity/certificate of fitness by Dr Saiful Habib dated 20 December 2023 stating she has no current work capacity for any work from 20 December 2023 to 3 December 2024 with the diagnosis as right knee trauma, right wrist pain and right shoulder pain, depression and anxiety, and PTSD. The improvement she had previously reported during her last review have regrettably dissipated and she is currently experiencing ongoing symptoms of PTSD and major depressive disorder. Her current episode of major depressive disorder is assessed as moderately severe and does not involve psychotic symptoms. Furthermore, she continues to experience persistent anxiety, which hinders her ability to engage in social activities and leads to her withdrawal from social interactions. This ongoing anxiety has resulted in her isolating herself and primarily staying within the confines of her home for safety.
· Present treatment:
In May 2023, Ms Wein stopped antidepressant after failed trials of three different medications. She reports decline in mental health and had two hospital visits because she passed out. She has been having psychology sessions with her psychologist, Alix, since June 2021.
· Present symptoms:
Ms Wein told me that she is not good and awakes several times in a night. She just has these racing thoughts in her head and nightmares. She takes Prazosin to help her with sleep. She said ‘my mind goes to suicide. I get anxious very easily and get angry as well. I feel overwhelmed all the time and so I stay at home. I get startled easily and I am hypervigilant. I isolate myself. I feel safe when I isolate myself and I am not interacting with people. I am not motivated to do things and I feel tired all the time. I have no enjoyment in anything and have restricted ability to do things that give any pleasure’.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Wein reported the physical injury while at work before she put in a claim for her psychological injury.
· General health:
Ms Wein has been diagnosed with hypothyroidism and has been on thyroxine and no other medical issues were reported.
· Work history including previous work history if relevant:
Ms Wein reported that she did not have any previous workers compensation claims and no previous work-related injuries.
· Social activities/ADL:
Ms Wein is currently not working and not studying as well. She would stay in bed all morning and may go back to sleep if she wakes up. She lives with her husband and her two sons. Ms Wein gets up at around midday, would watch some TV and then hang around in the house. She may go downstairs, sit on the lounge and just spends time. Her appointments regarding her medical issues are generally in midday and her husband, Peter, will take her for the appointments. Her psychology appointments are on phone and Peter wakes her up in the morning and gives her breakfast and medication and then she would stay in bed. She told me that around 2:00 pm she will have shower and her husband would message her and check on her.
· Past Psychiatric History:
Ms Wein experienced grief at the age of 19 years following the death of her mother from cancer. She followed up with a GP and she was prescribed antidepressants for around six months. She told me that her mental state stabilised, and she was fine after that. She also experienced grief at the age of 40 following the death of her father, however, she did not require any mental health treatment in relation to this. Ms Wein denied any other pre-existing past psychiatric history. She denied any history suggestive of mania, hypomania, psychosis, OCD or history of self-harm, suicide attempts, neither psychiatric hospital admissions.
· Personal History:
Ms Wein told me that she had a good childhood and she grew up with her parents and her brother. She had a good family life. Her dad was a principal, and her mum was stay-at-home mum. Ms Wein enjoyed school, did university after finishing school and obtained a Bachelor of Teaching and Arts. Ms Wein has always worked for catholic school since 2003 and has worked around seven different schools as a primary school teacher. Ms Wein’s mother died when she was 19 and she took antidepressants for 6 to 12 months for her grief. She recovered from that and felt fine after that and was brought back to her normal self. She also had some counselling at the time of birth of her eldest son and also before the second delivery. She told me that she was not depressed and anxious and no medications were required however, the sessions were stopped after the delivery. Ms Wein told me that her mental health was fine, and she was doing fine and was her normal self up until 2021. She was working quite well and got promotions at work as well.
· Drug and Alcohol History:
Ms Wein did not report any use of drugs or alcohol currently nor in the past and is a non-smoker.
· Family History.
Ms Wein did not report any family history of mental health issues.
· Forensic History:
Nil significant”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Ms Wein was assessed over video conference. Ms Wein is a 43-year-old female who was seen over a video conference for an independent medical examination. Ms Wein appeared calm, cooperative. She was wearing a black top and interacted well during the session. She appeared distressed at times and I found her to be anxious and agitated. Ms Wein reported sad mood and low motivation and low levels of energy. She said that she does not enjoy anything these days. Her affect was restricted and congruent to her mood. She described her sleep as poor and her appetite as disturbed as well. Ms Wein reported thoughts of suicide but she denied any intents or plans to self-harm or intents or plans of suicide. There were no intents or plans of harming others as well. She did not report any hallucinations nor delusional pattern of thinking. She did not describe any grandiosity, racing thoughts or increased energy levels. Ms Wein was future focused and said she is working on different types of treatment options. She is exploring TMS and Esketamine to help with her depression. Though Ms Wein also reported that she can be hopeless and helpless at times about her ongoing situation. She described her ability to focus and concentrate to be low. She had reasonable insight into her issues and her judgment appeared intact.”
The Medical Assessor summarised the injury and his diagnosis as follows:
“summary of injuries and diagnoses:
In my opinion, Ms Wein’s current diagnosis is major depressive disorder which is ongoing treatment resistant and chronic in nature.
Major Depressive Disorder Criteria( she has the highlighted symptoms):
Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
· Depressed most of the day, nearly every day as indicated by subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful)
· Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation)
· Significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day
· Insomnia or hypersomnia nearly every day
· Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
· Fatigue or loss of energy nearly every day
· Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
· Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
· Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide
- The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
- The episode is not attributable to the physiological effects of a substance or to another medical condition.
Note: The above criteria represent a major depressive episode.- The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.
- There has never been a manic episode or a hypomanic episode.
Note: This exclusion does not apply if all of the manic-like or hypomanic-like episodes are substance- induced or are attributable to the physiological effects of another medical conditionAs mentioned above, Ms Wein has developed major depressive disorder following work-related events. Ms Wein's employment with Catholic Schools Office Diocese of Maitland, Newcastle as a primary school teacher has been the substantial contributing factor leading to her current symptoms of major depressive disorder which are ongoing and have been difficult to treat with various medications and psychological interventions.
· consistency of presentation
During my assessment, Ms Wein's presentation was quite consistent with the history given, with the documents provided and during the assessment and mental state examination.”
The Medical Assessor made brief comment on the other medical opinions and other evidence before him as follows (emphasis in original):
“I have noted the independent medical examination report by Dr Abdel W Khan, consultant psychiatrist, addiction psychiatrist and addiction medicine specialist dated 6 September 2023. Dr Khan noted Ms Wein’s psychiatric diagnosis are major depressive disorder and generalised anxiety disorder which are in accordance with DSM-5 diagnostic criteria. It was noted that Ms Wein’s treating psychiatrist and treating psychologist had diagnosed her with post-traumatic stress disorder. Her presentation does not fulfill criterion A of the DSM-5 diagnostic criteria for post-traumatic stress disorder. Ms Wein's prognosis is guarded. She continues to suffer from pervasive symptoms of depression and anxiety which have a profoundly negative impact on her social occupational and other important areas of functioning. Ms Wein has sustained a disease her employment as a primary school teacher and religious education coordinator at St Mary's Primary School has caused the disease process. On the balance of probabilities there is a direct connection between Ms Wein’s employment as a primary school teacher and religious education coordinator at St Marys’ Primary School and the psychiatric/psychological injury and the pathology diagnosed. Ms Wein suffered workplace physical injuries and during her return to work following these injuries she felt bullied, harassed isolated and ostracised by the school principal and other colleagues. Ms Wein's employment as a primary school teacher and religious education coordinator at St Mary's Primary School was the main contributing factor to the development of the disease process. These experiences caused her mental state to gradually deteriorate and led her to develop the psychiatric conditions of major depressive disorder and generalised anxiety disorder. Ms Wein has reached maximum medical improvement, her condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment. The final whole person impairment is 19%.
I agree with diagnosis but differ in calculation of WPI as stated by Dr Khan.
I have noted the independent medical examination report by Dr Naresh Verma, Consultant Psychiatrist and Occupational physician, dated 22 March 2023. Dr Verma noted that Ms Wein is a 42-year-old primary school teacher who has had a poor subjective workplace experience at St Mary's Primary School at Warners Bay after a fall when she found that her principal's behaviour towards her changed. This resulted in her quitting that job in December 2021. She then moved to Holy Cross School where there was a disagreement with the principal resulting in her stopping work in November 2022. Ms Wein has ongoing mental health symptoms though she retains optimism and that she will get better and return to her usual job. Her mental health symptoms meet the criteria of major depressive disorder with anxious distress. In addition, she presented as having cluster C perfectionistic personality traits. I consider that she has sustained a primary psychological injury which is separate to her physical injury. I do not believe that there are any secondary mental health symptoms secondary to the physical injury. Yes, I agree that she has not been exposed to anything to warrant a PTSD diagnosis. She does not meet criterion A for a diagnosis of post-traumatic stress disorder namely exposure to actual or threatened serious injury or sexual violence. The predominant cause of Ms Wein's symptoms is her poor subjective workplace experience and perceived poor treatment by her principal at St Mary's Primary School Warners Bay. I consider that currently she is unfit for any work. I expect that in three months' time a graded return to work could commence at part-time hours, for example 15 hours per week and gradually increasing, for example by four hours every one to two weeks until pre-injury hours are reached. No specific restrictions would be recommended once the graded return to work commences. The prognosis is good. Despite ongoing symptoms, she retains optimism for the future and is under the care of a psychiatrist and psychologist. There is no pre-existing psychiatric disorder per se.
I have noted the independent medical examination report by Dr Naresh Verma, Consultant Psychiatrist and Occupational Physician dated 18 December 2023. Dr Verma noted at the previous assessment I assessed her as having major depressive disorder with anxious distress. At this assessment, she continues to meet the criteria for major depressive disorder with anxious distress. She also has cluster C perfectionistic personality traits as per my original report. I consider that she has reached maximum medical improvement as per clause 1.15 of the NSW Guide to the Evaluation of Permanent Impairment - 4th Edition. I do not believe that any further treatment is necessary. She has trialled multiple antidepressants without benefits and had regular psychological treatment since July 2021. The main barrier is that she has had adverse reactions or withdrawal symptoms with antidepressants and thus remains very symptomatic. As I believe she has reached maximum medical improvement, I have provided a whole person impairment rating with the final whole person impairment as 7%. There is no deduction for treatment uplift and no deduction for pre-existing impairment.
I agree with diagnosis and my calculation of WPI is similar to Dr Verma.
In my opinion, Ms Wein’s current diagnosis is major depressive disorder following work-related psychological injury. Her presentation does not fulfill criterion A of the DSM-5 diagnostic criteria for post-traumatic stress disorder and in my opinion, she does not have PTSD. She sustained a psychological injury while working as a primary school teacher at Catholic school. She initially had a physical injury following a fall at the school and then she recovered from her physical injury and was on gradual return to work. While returning to work, she felt that she was discriminated and not welcomed at work. This made her feel anxious, sad and depressed. She has received various forms of treatment in the form of medications but has not responded very well or developed side effects. In my opinion, she has reached maximum medical improvement as her condition is not going to change substantially in the next 12 months with or without treatment. So, I have calculated the whole person impairment and the final WPI in my opinion is 8%. There is no addition for treatment benefits and no deduction for pre-existing impairment.”
Impairment was assessed in accordance with the PIRS as set out above. The appellant complains on appeal about the assessments in three of the categories namely self care and personal hygiene, concentration persistence and pace and employability.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
“Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population
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.
Class 4
Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5
Totally impaired: Needs assistance with basic functions, such as feeding and toileting.”
The Medical Assessor assigned a class 2 or mild impairment with the following reasoning:
“Ms Wein told me that her self-care and personal hygiene is not great. She would stay in her pyjamas and does not care about what she wears. Her husband Peter prompts her to change clothes and he organises her to go to the hairdresser. She does not put makeup on. Ms Wein brushes once a day and showers most days. Ms Wein would wake up then have breakfast does not have lunch and has a dinner. Ms Wein does not do cleaning, vacuuming, laundry, however, she may feed the dogs at home. Her husband looks after her children and her husband will do grocery shopping as well. In my opinion, Ms Wein will be able to live independently and look after herself adequately and she would classify under mild impairment in this category.”
Despite taking a history that the appellant has to be prompted by her husband to change clothes, he organises her to go to the hairdresser, he wakes her up in the morning and gives her medication and her breakfast (which is the only meal she eats) and he does all the housework and the grocery shopping and looks after her children, the Medical Assessor assessed her as being able to live independently and look after herself adequately and thus having a mild impairment only. The Appeal Panel considers this assessment to be on the basis of incorrect criteria and amounting to a demonstrable error. It does not accord with the appellants self-reported history which is supported by the other evidence which was before the Medical Assessor. Moreover the M own history describes a level of impairment best described as moderate. Even though both IMEs who had provided independent reports in the matter had assessed a class 2, these assessments took place prior to the evidence from her psychologist in a report dated 30 January 2024 which indicated that the appellant required urgent attention as she was suicidal. The appellant’s dependence on her husband in the arena of self care and personal hygiene increased after this time and remained so at the time of the assessment by the medical assessor and in accordance with the history provided to him. Assessment on the basis of correct criteria is a class 3 or moderate impairment for self care and personal hygiene.
In respect of concentration, persistence and pace, Table 11.5 of the Guides provides 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.” |
The Medical Assessor rated a class 2 with the following reasoning (emphasis in original):
“Ms Wein described her concentration as poor and finds it difficult to focus for sustained period. She cannot multitask and needs help from her husband Peter to read and reply to the emails. In my opinion, she would be able to undertake a basic course but at a slower pace and normally can focus on tasks for a short period of time and then feels fatigued. During the assessment, she was able to focus quite well throughout the interview for almost an hour. “
The appellant submitted that a moderate impairment or class 3 should have been assessed.
The Medical Assessor is required to use his clinical expertise in making an assessment of the impairment in concentration, persistence and pace and a significant part of the assessment of concentration persistence and pace is clinical evaluation by the Medical Assessor on the day of examination. However the assessment must be based on correct criteria and take due account of self-reported restrictions if they accord with the other evidence. Here the Medical Assessor took a history from the appellant as follows: (emphasis in original)
“Ms Wein told me that she is not good and awakes several times in a night. She just has these racing thoughts in her head and nightmares. She takes Prazosin to help her with sleep. She said ‘my mind goes to suicide. I get anxious very easily and get angry as well. I feel overwhelmed all the time and so I stay at home. I get startled easily and I am hypervigilant. I isolate myself. I feel safe when I isolate myself and I am not interacting with people. I am not motivated to do things and I feel tired all the time. I have no enjoyment in anything and have restricted ability to do things that give any pleasure’.”
This self-report is consistent with the other evidence and consistent with the rating by both IMEs of class 3. The Medical Assessor noted she needed help from her husband to read emails and there was no evidence she could focus on intellectually demanding tasks, to support the conclusion she could undertake basic retraining, and did not explain why his assessment for concentration, persistence and pace differed from both IMEs and it is not possible to understand his path of reasoning in reaching a class assessment in light of the history given and the other evidence. Assessment on the basis of correct criteria results in a class 3 or moderate impairment.
In respect of Employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
The Medical Assessor explained his reasoning for the assessment of severe impairment at class 4 for employability as follows:
“Ms Wein has not thought of working and said that all her doctors are of the opinion that she cannot return to her teaching job. She has not explored any other form of work. She would like to do something in the future and has not given up and it depends on her mental capacity and the improvement in her symptoms. In my opinion, she would be able to work less than 20 hours per fortnight however, her pace would be reduced and she may work for one or two days at a time.”
The assessment of class 4 ignores the history that she has been assessed as being totally unfit for any work, that she has not been able to perform any work, that her husband reads and responds to her emails because she cannot even manage this task. The appellant talks about her future wish to work when she is mentally able to do so but the assessment must be based on capacity at the time of examination. There is no adequate path of reasoning even when the MAC is read as a whole that supports a rating of class 4 for employability. The Medical Assessor appears to have based his assessment on a possible future situation rather than the capacity of the worker (from his own description) on the day of assessment. The most appropriate assessment taking into account the appellant’s self-report which is consistent with the other evidence that was before the Medical Assessor that the appellant is totally impaired in this category and class 5 should have been assessed.
The Appeal Panel has found error in the three categories of PIRS which were complained about on appeal, namely self care and personal hygiene, concentration persistence and pace and employability. This means that the scores become as follows:
“Score
Median Class
2
2
3
3
3
5
=3
Aggregate Score Impairment
Total
%
+2
+4
+7
+10
+13
18
22
The Medical Assessor made no deduction under s 323 for any pre-existing condition, abnormality or injury and neither did he make any allowance for the effects of treatment. Neither of these were the subject of complaint on appeal.
This means that the final whole person impairment assessment will be 22% and the MAC will be revoked.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 June 2024 should be revoked, and a new MAC should 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: | W2490/24 |
Applicant: | Marianne Wein |
Respondent: | Michael Hong |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Himanshu Singh 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 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 Injury | 27/09/2023 (deemed) | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines: 11.11,11.12 Table: 11.1,11.2,11.3,11. 5,11.5,11.6 | 22% | nil | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22 % | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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