Westpac Banking Corporation v Miller
[2024] NSWPICMP 101
•26 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Westpac Banking Corporation v Miller [2024] NSWPICMP 101 |
| APPELLANT: | Westpac Banking Corporation |
| RESPONDENT: | Deborah Lee Miller |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 26 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant alleged error in the assessment under two of the categories under the Psychiatric Impairment Rating Scale, namely, concentration, persistence and pace and employability; the rating of class 3 in each class were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 October 2023 the employer Westpac Banking Corporation(the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, who issued a Medical Assessment Certificate (MAC) on
20 September 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request that the respondent worker undergo a re-examination. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination because the Appeal Panel was not satisfied as to error and absent a finding of error the Appeal Panel has no power to require the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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 as follows:
“The following matters have been referred for assessment (s319 of the 1998 Act):
· the degree of permanent impairment of the worker as a result of an injury (s319(c))
· whether 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))
· whether impairment is permanent (s319(f))
· whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
· Date of injury: 25 February 2020 (deemed)
· Body parts/systems referred: Psychological/Psychiatric disorder
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC 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. Psycho-logical | 11, page 55-60 | 14 | 15% | n/a | 15% | |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The assessment of impairment was based on the ratings ascribed by the Medical Assessor under the psychiatric impairment ratings scale (PIRS) as follows:
Table 11.8: PIRS Rating Form
| Name | Deborah Miller | Claim reference number (if known) | W1097/23 |
| DOB | XXXX | Age at time of injury | 49 |
| Date of Injury | 25 February 2020 (deemed). | Occupation at time of injury | Incoming Call Centre Lending Banker |
| Date of Assessment | 8 September 2023 | Marital Status before injury | Divorced |
| Psychiatric diagnoses | 1. Persistent depressive disorder. | 2. | |||||||||
| 3. | 4. | ||||||||||
| Psychiatric treatment | Antidepressants and psychotherapy. | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 mind impairment | Ms Miller can live independently and look after herself adequately. She is not as particular with her appearance as before the injury. She neglects her diet and has gained weight. She skips showering and is unmotivated to exercise or look after herself. | |||||||||
| Social and recreational activities | 3 moderate impairment | Ms Miller rarely attends social events with a limited group of trusted people. She is uneasy or apprehensive in social settings other than with a small group of trusted friends. She can cope when accompanied in low-key social venues without crowds. She is unmotivated to participate in social activities or recreation, preferring to spend time at home. She stopped recreational activities, such as regular exercise, entertaining friends, and attending social venues. | |||||||||
| Travel | 2 mild impairment | Travels without a support person, but only in a familiar area, such as locally. She has problems concentrating when driving. | |||||||||
| Social functioning | 2 mild impairment | While I accept that Ms Miller could not maintain a relationship due to her psychological symptoms, she has maintained enduring relationships with her immediate family and a few close friends. She can assist with looking after her children, although they are mostly independent. She has felt guilty about the effects of her condition on her family. This is more consistent with a class 2 impairment. | |||||||||
| Concentration, persistence and pace | 3 moderate impairment | ||||||||||
| Ms Miller has difficulties absorbing information. She has difficulty managing her time and procrastinates. She is distractible and finds it difficult to follow complex instructions. She is easily overwhelmed. Her mind freezes under pressure. She avoids intellectually demanding activities. | |||||||||||
| Employability | 3 moderate impairment | She cannot work at all in the same position. She can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different and less stressful, most recently, her eyelash business. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 3 | = 3 | |||||
| Aggregate Score Impairment | Total | ||||||||||
| 2+2 | +2 | +3 | +3 | +3 | 15 | ||||||
Whole person impairment 15%.
The employer appealed.
In summary, the appellant submitted on appeal that the Medical Assessor made demonstrable error and made assessments on the basis of incorrect criteria as follows:
(a) when assessing Class 3 for concentration, persistence and pace when he should have assessed Class 2, and
(b) when assessing Class 3 for employability when he should have assessed Class 2.
In summary, the worker Ms Deborah Lee Miller (the respondent) submitted on appeal that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an 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 Medical Assessor took a detailed history as follows:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Miller is a 52-year-old single woman. She divorced four years ago and was separated for 10 years. She was married for 14 years. She has two sons living with her ages 15 and 23. They have lived in a rental unit in Wolli Creek for eight years since she separated from her husband. She works part time as a self-employed eyelash technician.
The Respondent employed her for 20 years as a lending consultation banker. She alleged bullying and harassment by her team leader and as a result suffered psychological injury. In her statement, dated 13 February 2023, she noted she began working with St George Bank in 2001. She was employed for 20 years in various teams over the years. Two years ago, she worked three days and was reduced to two days per week while working two part-time jobs. She detailed problems with the team leader, Ms Elgamal, resulting in a toxic work environment where the entire team was unhappy and demotivated. She was breaking down at her desk, had problems with her concentration, was teary, with abdominal discomfort, and nervous diarrhoea. She had to visit the toilet frequently at work. She eventually had an emotional breakdown at work.
She returned to work after lodging a Workers’ Compensation claim with a new team leader and, with support, felt she was improving. Still, she continued to be bullied, harassed and intimidated by Ms El-Gamal. She was still having problems concentrating and had difficulty absorbing the new information and processes for the new team. She noted that work again became a very stressful and toxic environment. Her emotions were brittle. She began to feel anxious, stressed and emotional before walking into the building. She had irritable bowel syndrome with nervous diarrhoea and was publicly humiliated about her frequency of bathroom visits. She suffered panic attacks. She felt unsupported by management. Her medical records were shared without her consent to bank staff in a breach of confidentiality, causing her embarrassment and anguish.
She was referred to a psychologist and consulted with her general practitioner. She was prescribed antidepressants, melatonin, diazepam and a special diet for irritable bowel syndrome. She continued to report symptoms of anxiety and depression. She had a panic attack and an emotional breakdown on 25 February 2020 when she was notified that she would be removed from what she considered a very supportive working environment and could not return to work.
She had a one-off appointment with a psychiatrist soon after the injury, was given options for medication, which the GP managed, and was referred to see Tom Jones, a psychologist.
· Present treatment:
She continues to take escitalopram 20mg. She takes diazepam as needed 5mg, every few weeks if she is having difficulty sleeping. She said a script for 50 tablets lasts for months. She takes melatonin 2mg and perindopril for high blood pressure. She takes esomeprazole for reflux 20mg, and vitamin D. She stopped agomelatine four months ago due to the cost. She recently started weekly injections with Ozempic for weight loss.
She was seeing her psychologist regularly but has not seen him for several months due to conflicting appointments. She recently had a breast cancer scare and had to attend multiple appointments. She was also having trouble organising herself and procrastinating. She said she was generally overwhelmed with medical appointments. She was seeing him once or twice a month until April 2023. She cancelled her last appointment.
She told me that a psychiatrist is too costly, as is the cost of seeing a psychologist, particularly as the treatment is not being funded. She has never seen a psychiatrist for ongoing treatment.
· Present symptoms:
Her mood is often flat or depressed. She has problems getting out of bed some days. She is sluggish on Sunday, Monday and Tuesday and reluctant to leave her room or house. Once she is in a routine during the week and has an eyelash client, she forces herself to get out, knowing she needs the money. Everything feels effortful.
She said she feels embarrassed by her state because she had always been a ‘together person, employed for 20 years in finance’. Her confidence has suffered. She told me she feels as if she is blocked. She said some days she feels good; other days she crashes, feels anxious and decompensates over the smallest things. For example, she had difficulties getting her computer working for today’s assessment and panicked. She said she struggles with even basic decisions and activities. She questions how she came to this point.
Her motivation is low. She procrastinates and feels frustrated that she is so slow completing things. She is behind in her levies for the investment property in her super fund and now must justify why she has not paid it and has been unable to bring herself to it. She said although it is a priority and she had all day yesterday, she could not make it herself. The property’s value has gone down, she cannot sell it, she has no money in her super and interest rates have gone up. She is under financial pressure. She worries about an uncertain future, how to pay her bills, and what she might have to do during the day. She often feels overwhelmed. She said she was behind on her bills and was almost at the point where she was declared bankrupt. She said she is trying desperately to keep her head above water.
She has problems sleeping. She wakes up with reflux and feels sick in the night. Her blood pressure recently increased, and she was started on antihypertensives. She goes to bed late, wakes up several times during the night and feels exhausted when she wakes up. She is reluctant to get out of bed.
She feels anxious about any reminders of the workplace. For example, she had to go to the hospital and drive past where she used to work, and her heart was racing. She felt teary, and she wanted to avoid driving in that direction. If she knows she has something to do, her stomach becomes upset, she feels nauseated, her heart races, and she feels overwhelmed with emotions and teary. She said anything could set her off. She said even being asked how are you is a trigger.
When she has something to do, she feels trapped, and the anxiety builds, particularly if there is somewhere she must be at a particular time the apprehension builds. She feels anxious preparing to see a client. She feels anxious under any pressure. She said her clients know her and what she has been through. She has broken down with clients when they ask how she is.
She feels a sense of loss at losing her career. She said she worked hard to buy a property for her children and feels that that dream was stolen. She said she felt she was pushed to this point. She said that ultimately, she felt as if the situation was turned into an attack on her instead of supporting her.
She misses her job and the people she worked with and thinks about the situation at work every day. She doubts she will ever get back to her pre-injury self.
She told me that initially, she had problems articulating herself, but that has improved. When she is not talking about the situation at work, she can feel somewhat better, but any reminders cause distress.
She denied symptoms consistent with obsessive compulsive disorder, mania, hypomania or psychosis. She denied suicidal thoughts.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Miller said she was prescribed escitalopram in 2012 but never took it. She said she fully recovered without any intervention. From the medical records, she was prescribed escitalopram in 2012 while she was separating. Only one script was given, and there was no mention of her mental health in the medical records until 2020.
She denied any contact with mental health services, psychiatric hospitalisations, any history of suicide or self-harm or treatment by a psychiatrist.
She denied any family history of psychiatric disorders.
She denied exposure to developmental trauma. She denied exposure to trauma, meeting criterion A for post-traumatic stress disorder over her lifetime. She denied any subsequent accidents, injuries or conditions. I note she had a recent health scare with benign breast cysts.
· General health:
Ms Miller has irritable bowel syndrome with abdominal discomfort and frequent diarrhoea. She has hypertension, weight gain, and impaired blood sugar control. Her thyroid function is normal, and she has not required thyroid medication for six years. Her general practitioner regularly monitors her thyroid function.
She said she might drink a bottle of wine weekly, one to two glasses some weeknights. She denied illicit or recreational drug use, problem gambling, or forensic history. She is a non-smoker.
· Work history including previous work history if relevant:
She worked with the bank for 20 years. While working at the bank, she ran an eyelash technician business part-time. Her lash business is by appointment and whenever work is available. Sometimes, she will not work for weeks; other times, she might work for several days. She averages two to three clients daily for an hour to an hour and a half with each client. On average, she is working 15 hours per week. She lost her shopfront and an employee three months ago because she could not maintain her clients. She now conducts her business from a private room at another practitioner’s premises. She could not keep as many clients because she could not be consistent. She had another employee managing her business because there were weeks when she could not work. Her income declined, and she could not keep the employee. She has also had several breaks from her business, taking several months off when she was most unwell.
She earns $500 to $800 per week. She receives $1,800 per month child support from her ex-partner. She receives family payments and uses savings from her settlement. She was receiving a Workcover Benefit the first year before payments were stopped based on Dr Vickery’s report.
· Social activities/ADL:
She said she showers once or twice a week. She cannot afford to go to the beautician. Her friend comes to her house every few months to do her hair. She usually wears her hair casually in a ponytail. She has not had regular dental check-ups. A tooth broke because of bruxism. She had that fixed over the last few months but had not been to the dentist since 2014. She is not brushing her teeth daily. She is not eating properly. She typically will not eat during the day, skips breakfast and lunch, and eats in the afternoon. She might eat takeaways because she is not motivated to cook. Her children tend to cook for themselves, and her son does most of the cooking in the household. Her oldest son mostly does the groceries. She does not shop for groceries at all. She avoids big crowds and has not visited a big shopping centre in two years. She orders online. When she can, she avoids being around people. She used to take great pride in her appearance and now prefers not to attract attention. She feels embarrassed by her appearance because she has gained weight and is reluctant to leave the car. She will if her son accompanies her. She feels self-conscious around people.
Apart from her immediate family, she has two supportive friends who will visit and help her or push her to go places and do things. A friend will pick her up and take her to her house to get her out. They will spend time together every one or two weeks. They might pop out for a coffee, walk down to the shops or a café. She has not attended any movies, concerts or large-scale social events. She might occasionally go to a restaurant if her friends push her. She has been once or twice in the last six months. Her children’s godmother took them to a pizza restaurant, and only three other people were there.
She does not feel uncomfortable with people she knows and trusts but does not want to be seen and avoids busy or crowded places.
Her concentration is still impaired. She is not reading books, although she used to love reading. She is easily distracted. Her mind wanders, and she has difficulty absorbing information. She has trouble making decisions and procrastinates. She said she knows she must do things but ignores calls, bills and emails. She said it would take her all day to do one thing.
On the days she must, she takes her son to school. She gets up and takes him to school. That helps force her to get out of bed. Otherwise, she might have a bad night’s sleep and sleep in and have trouble getting out of bed in the morning. She drives him 10 minutes to school and comes home. She picks him up at 3 p.m. While she waits in the car, her son might pop into the IGA on the way home. He does his homework. During the day, unless she has an eyelash client, she mostly stays at home, potters around the house watches television and sleeps. She used to love going to the gym, Pilates, concerts, socialising and having people over, but she has not done any of these activities for months. She is not motivated to exercise and has gained weight.
A friend helps with deep cleaning the house occasionally, but the house still looks messy. Her boys help, for example, unpacking the dishwasher or doing a load of washing.
She is not involved in any social community or sporting clubs or associations.
She travelled to Queensland last year to visit a friend struggling with depression. They stayed in her friend’s unit for several days. She has not travelled overseas. She is driving sometimes. She said she is driving less because when she was at her worst, she had two accidents; returning from her psychologist, she ran a red light because she was distracted.
I asked her about her confidence in returning to work in the banking sector. She is anxious about being able to cope with pressure or meeting KPIs. She is worried about her memory. She said banking was complex, and she may have needed to use 10 applications and understand legal policies and processes. She said her brain cannot absorb information like it used to, and she worries that she would freeze. She is worried she will fall to pieces. For example, if someone upset her over the phone, she would break down, her heart racing, and she would have to go to the bathroom. She said she previously felt confident and never worried about losing control of her emotions.
She feels humiliated that she has lost her confidence. She said trying to go back and having another breakdown further affected her confidence. She said she would be okay for a day or two, then would fall to pieces. She had multiple breakdowns at work, particularly when she encountered Ms El-Gamal. She had a lot of time off and had difficulty with the constant demands to learn new information.”
The Medical Assessor conducted a mental state examination of which he recorded as follows:
“Ms Miller presented punctually via teleconference. At the end of the examination, I checked on her safety. She denied any suicidal or self-harm thoughts.
She was tidy and well presented with a pendant, a black top and her hair done. She was pleasant and cooperative but apologetic, anxious and easily flustered. She was tearful throughout the assessment. Her speech was of normal rate, tone and volume. Her mood was described as flat and anxious. Her affect was reactive, brittle, and distressed at times.
Her thought content included anxious and depressed themes, including guilt, shame, worthlessness and loss of confidence, sensitivity to reminders of her former employer, and unfavourable comparisons with her pre-injury self. She questioned her purpose, role and meaning. She denied suicidal thoughts. There was no evidence of psychotic symptoms.
She was alert and oriented. I estimated her intelligence to be in the average range. There were no overt cognitive deficits during the examination, although she was easily flustered. Her insight and judgment were intact.”
The Medical Assessor summarised the injury and diagnosis and noted any differences with the other expert opinions as follows:
“Summary of injuries and diagnoses:
Ms Miller is a 52-year-old woman, formally employed as a banking assistant for St George Bank. She developed an adjustment disorder with mixed anxiety and depressed mood in the context of perceived workplace bullying. Her condition has progressed to a DSM-V persistent depressive disorder, consistent with chronic stress models of depression.
She reported a depressed mood and loss of pleasure in previously enjoyed activities for most of the day, for more days than not, for at least two years. She described insomnia, impaired motivation, lowered self-esteem, impaired concentration and intrusive depressive thoughts. She described changes in appetite, weight gain, anhedonia and reduced motivation.
She has never been without the symptoms described above for more than two months at a time. There is associated functional impairment compared with her pre-injury function.
She had a brief adjustment reaction to the end of her relationship in 2012 that resolved without treatment, and I do not consider this a pre-existing condition that would contribute to her current level of impairment. No other vulnerabilities to psychiatric disorders were identified.
After the injury, life stressors have contributed to her anxiety. However, most of these have been consequences of work-related injury, such as financial pressures. Had she not been injured, she may have dealt with recent health issues more resiliently, and these do not contribute to her current impairment, particularly as she does not have a malignancy.”
The Medical Assessor considered that the worker was consistent in her presentation stating as follows:
“Ms Miller presented as a consistent historian. There was no evidence of exaggeration, hyperbole or malingering. Her presentation was consistent with the medical evidence provided by her treating clinicians. Her presentation was consistent with the mechanism of the injury and the mental state examination.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The Medical Assessor made brief comment on the other evidence and opinions that were before him as follows:
“The Amended Certificate of Determination, dated 20 July 2023, confirmed the Applicant suffered a psychological injury arising out of or in the course of her employment.
I note on a Section 78 Notice, dated 16 July 2020, her claim was declined on the basis of Section 11A of the Workers’ Compensation Act. This was based on her being transferred out of a supportive team where she had been placed after her initial return to work in 2020, precipitating a panic attack. This was based on the opinion of Dr Vickery on 6 June 2022, noting that her injury was due to being informed of the transfer. The employer noted that there were performance issues, and that Ms Miller was not meeting her KPIs.
In a report dated 15 September 2022, Dr Tarun Yadav, Psychiatrist and Independent Medical Examiner, detailed the circumstances of the injury. She left work in February 2020 and took time off between February and October 2020. She was started on escitalopram and diazepam and referred to a psychologist. She returned to work in a different team but struggled to cope. Dr Yadav noted that her relationship broke down because of her psychological condition. Dr Yadav noted she had been trialled on Valdoxan 25mg. The diagnosis was major depressive disorder. He noted that the prognosis was favourable. Dr Yadav did not comment on maximum medical improvement. They assessed whole person impairment at 15%, self-care and personal hygiene at class 2, social and recreational activities at class 3, travel at class 3, social and relationship functioning at class 3, concentration, persistence and pace at class 2 and adaptation employability at class 2. No adjustment was made for a pre-existing condition or the effects of treatment. Dr Yadav’s travel, concentration and employability ratings were inconsistent with the current impairment levels in these domains.
K10 scores from Tom Jones, Psychologist, noted minimal improvement in symptoms from early 2020 through to October/December 2021. No inconsistencies were identified in Mr Jones’ clinical notes. She was treated with CBT and evidence-based treatment.
In progress notes dated 2 July 2012, Dr Khyne Nyunt noted a history of panic attacks and other symptoms of anxiety and depression. It was noted to have been aggravated by a recent break-up and separation six months ago. She was prescribed citalopram. There was no mention of her mental health after that, and no further scripts for escitalopram, until 18 February 2020, when she presented with anxiety, panic attacks and depression for a Workers’ Compensation claim for workplace bullying and harassment for the last six months. Dr Nyunt noted, “Had panic attack yesterday due to stress at work. She reported every day of work she is being monitored, she is getting blurred vision, forgetting what the customer has told her earlier, she feels herself and her team is falling apart. Skin is breaking out due to extreme stress. She has been through it before but got over it. She reported she has a team leader from hell, and they monitor her going to the bathroom. Her team leader has not been supporting her with a new system upgrade – team leader was reported to be aggressive and would threaten her – they are asking her to go to the doctor to get a reason why she needs to go to the toilet frequently. She feels her panic attack is induced by extreme stress at work, which has gotten worse in the last couple of weeks. This has been building up for the past six months. She had to walk out of work yesterday, as she was sobbing hyperventilating – she is getting to the point where she has no sick leave. She cannot afford not to work as she is a single mother. They have cut her pay to half already. The company is going through Fair Trading for the pay all the staff should have got for Sunday penalties, which they have just been paid out. She can’t sleep, feeling anxious, with low mood and poor concentration, with short term memory deficit and unable to sleep. She has gone to her manager that things are getting difficult for her and other staff, but the patient reported that the manager has not made any allowance for it and disregarded her plea for help. She reported being threatened by her team leader constantly to meet the KPI targets, which needs to be met by the company and staff”. He prescribed escitalopram. This was later increased to 20mg. No inconsistencies were noted in subsequent records. She was noted to have ongoing symptoms of anxiety and depression. Agomelatine was added in June 2020, as her symptoms were not improving. There was an improvement around September 2020, when she returned to work with a new team leader, with a later deterioration as she could not cope with the cognitive demands of working in a new team and a new role. She appeared to be struggling through much of 2021. She began working from home. On 2 November 2021, she reported a panic attack on 26 October 2021 after a conversation with her manager, who told her to work with a new team and Ms Miller found them unsupportive and believed that they did not have the knowledge to help her. She was unable to return to work.
In a report, dated 9 April 2020, A/Prof Robert Kaplan, Independent Medical Examiner and Psychiatrist, detailed the circumstances of the injury. No inconsistencies were noted. He diagnosed an adjustment disorder with depression and anxiety. He noted the prognosis was good.
A Factual Report dated 29 April 2020 noted that Ms El-Gamal denied claims of bullying and harassment. It noted that Ms Miller claimed ongoing bullying and micromanagement from her direct manager as being the cause of her condition. It noted that evidence provided by Ms El-Gamal and manager Chami, did not support the micromanagement of the claimant, seeing performance issues with the claimant relating to her adherence to schedule, including late system logins and breaks recorded as having exceeded the allocated break time. Chami denied not actioning Ms Miller’s concerns.
In his report, dated 26 July 2021, Dr Ashwinder Anand, Psychiatrist and Independent Medical Examiner, detailed the circumstances of the injury. No significant inconsistencies were identified. He noted she had a part-time job as a beautician. He diagnosed an adjustment disorder with anxiety and depressed mood. She had experienced regression in her mental health due to workplace difficulties.
In a report, dated 6 June 2022, Dr Graham Vickery, Independent Medical Examiner and Psychiatrist, detailed the circumstances of the injury. She returned to a different team on restricted duties in October 2020. She was working six hours a day, but was about to return to full duties when she was informed she was being transferred from a very supportive team to a different team. She subsequently had an emotional breakdown, and her capacity was downgraded. He diagnosed an adjustment disorder in partial remission. He concluded the injury was due to being informed of her transfer. He has not commented on maximum medical improvement. He assessed whole person impairment at 0%, self-care and personal hygiene assessed at class 1, social and recreational activities at class 2, travel at class 1, social functioning at class 1, concentration, persistence and pace class 1 and employability at class 1. He noted she was working with a rehabilitation provider to find a part-time job for two days a week. He noted no psychiatric incapacity for employment. In my view Dr Vickery’s history and symptom review was brief, and on further enquiry she meets DSM-V criteria for a persistent depressive disorder. Dr Vickery’s impairment ratings are inconsistent with her current function.
In a report dated 29 November 2022, Dr Vickery noted that Ms Miller was employed for two days a week in her own beauty salon, Lash Diva Studio. She had ongoing symptoms of anxiety and depression. She worked in her beauty salon when capable and able to go to the toilet when needed and worked for five to 10 hours a week in a peaceful environment. He diagnosed an adjustment disorder. Her condition had relapsed, associated with the stressors of health issues with irritable bowel syndrome, the break-up of a relationship, financial stressors and body image stressors. He apportioned 25% of the relative contribution to her impairment to employment with the insured and 75% to non-work-related factors. He noted her symptoms were primarily due to personal stressors. These personal stressors were a consequence of the initial work-related injury.
A statement by Nazia Mahmud noted she was listed as a Witness to provide a witness account in a statement dated 6 March 2023. She noted the poor treatment by Ms El-Gamal. She noted once she was moved from Ms El-Gamal’s team to a new team leader it took her over a year to recover. She relocated from the contact call centre, was now happy and content in her current role, was working with a supportive manager, and felt valued and continued working for Westpac. She had no social contact with Ms Miller outside the bank and only worked with her briefly in the role but understood how she felt as she had experienced the same treatment in her team. An email from Mia Dritsakis, dated 15 March 2023, confirmed problems with Ms El-Gamal and unhappiness in the team.”
The appellant complains that the Medical Assessor has erred in respect of two of the categories assessed, namely Concentration, Persistence and Pace, and Employability.
The Panel cannot interfere with these ratings absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Panel will deal with each category in turn.
The appellant complained on appeal that the Medical Assessor should have assessed a Class 2 or mild impairment for concentration, persistence and pace rather than the Class 3 or moderate impairment that was assessed.
| 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. |
In respect of concentration, persistence and pace, Table 11.5 of the Guides provides as follows:
The Medical Assessor assessed Class 3 or moderate impairment with the following reasoning:
“Ms Miller has difficulties absorbing information. She has difficulty managing her time and procrastinates. She is distractible and finds it difficult to follow complex instructions. She is easily overwhelmed. Her mind freezes under pressure. She avoids intellectually demanding activities.”
The appellant submitted that a mild impairment or Class 2 should have been assessed.
The appellant submitted that a Class 2 rating should have been assessed particularly having regard to the worker’s part time employment as an eyebrow technician. The worker averaged two to three clients daily (to total an average of 15 hours a week) and each appointment lasts 1 to 1.5 hours. The appellant says this was not properly taken into account by the Medical Assessor when assessing a mild impairment for concentration, persistence and pace.
The Medical Assessor turned his mind to the assessment of Dr Yadav, the independent medical examiner (IME), who had assessed a Class 2 and indicated that his assessment for concentration, persistence and pace at Class 3 was as found on the day of examination. The Medical assessor is entitled to rely on his findings on the day of examination. He conducted a medical examination of the worker, had due regard to the history and other evidence and reached an assessment using his clinical expertise that she fits best into class 3 for concentration, persistence and pace for reasons he adequately explained.
The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise. The Medical Assessor has done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 2 which is the best fit, particularly noting the difficulties the Medical Assessor found with concentration, persistence and pace which fit within the criteria for Class 3. It is noted that she conducted the eyebrow business concurrently with her employment with the appellant and prior to injury. She has been able to continue with the eyebrow business which is a trained skill in a mechanical task, and performed in an automatic way. She has been unreliable after injury and lost clients. The Medical Assessor when the entire MAC is read as a whole has properly and appropriately taken workers conduct of the eyebrow business into account when assessing concentration, persistence and pace at a class 3 and the Appeal Panel can discern no error.
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. |
Table 11.6: Psychiatric impairment rating scale – employability
The Medical Assessor rated Class 3 with the following explanation:
“She cannot work at all in the same position. She can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different and less stressful, most recently, her eyelash business.”
The appellant submitted a Class 2 should have been assessed. The appellant submitted that although the worker was not able to return to her pre-injury employment with Westpac she was able to maintain her concurrent employment as an eyebrow technician working 20 hours per week. The appellant submits that this fits more neatly into Class 2 or mild impairment.
The Appeal Panel can discern no error in the assessment of Class 3 when the MAC is read as a whole as the Medical Assessor’s findings were open to him on the basis of his findings on the day of assessment, using his clinical judgment and they accord with the criteria for that class and it is the best fit. The worker cannot work in her pre-injury employment with the appellant but is able to do the less stressful job of eyebrow technician which is a trained skill and an over-learned mechanical task. The Medical Assessor noted that the respondent was working less than 20 hours weekly, on average 15.
The Appeal Panel can discern no error in the rating of a moderate impairment. The guides give examples and it is up to the Medical Assessor to use his or her clinical judgment in deciding the best fit. The Appeal Panel cannot interfere because reasonable minds might differ in ascribing Class 2 or 3. Rather the Appeal Panel must be satisfied as to error. Here the Appeal Panel considers that a Class 3 for employability was open to the Medical Assessor in accordance with application of correct criteria and the Appeal Panel can discern no error.
The assessment by the Medical Assessor was open to him and is in accordance with correct criteria. The appeal panel can discern no error in the Class 3 rating.
For these reasons, the Appeal Panel has determined that the MAC issued on
20 September 2023 should be confirmed.
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