Woolf v Venue Cafe Bar Orange Pty Ltd
[2023] NSWPICMP 422
•30 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Woolf v Venue Cafe Bar - Orange Pty Ltd [2023] NSWPICMP 422 |
| APPELLANT: | Joanne Michelle Woolf |
| RESPONDENT: | Venue Café Bar – Orange Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 30 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of psychiatric injury; worker appealed assessments in five of the six Psychiatric Impairment Rating Scale (PIRS) categories; Held – Panel found no error or application of incorrect criteria in assessment of self-care and personal hygiene, social and recreational activities and travel; Panel satisfied error in assessment of concentration, persistence and pace and employability; worker re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 March 2023 Joanne Michelle Woolf (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
24 February 2023.2. 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).
RELEVANT FACTUAL BACKGROUND
The appellant sustained a primary psychological injury in the course of her employment with Venus Café Bar – Orange Pty Ltd (the respondent).
The appellant commenced proceedings in the Personal Injury Commission (Commission) on 12 August 2022 claiming 26% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury on 21 August 2019.
The Medical Assessor examined the appellant on 20 February 2023 through video link. The Medical Assessor assessed 7% WPI as a result of the injury on 21 August 2019.
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 requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which 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.
Further medical examination
Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 18 August 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) Error in assessments of Class 2 in the Psychiatric Impairment Rating Scales (PIRS) for self care and personal hygiene, travel and concentration, persistence and pace and of Class 3 for social and recreational activities and employability.
(b) The Medical Assessor in providing his assessment ignored the assessment of
Dr Frukasz and failed to address his opinion as required in Part 10(c) of the MAC. Further, the Medical Assessor failed to consider the report of the treating psychologist, Collette Mills.(c) In respect of self care and personal hygiene, the Medical Assessor assessed the appellant as Class 2 whereas the evidence indicated that she fell into Class 3.
Dr Frukacz, treating psychiatrist, assessed her as Class 3 and Dr Paisley also assessed her as Class 3. The Medical Assessor failed to consider Dr Frulacz’s opinion and made an assessment contrary to the assessments of both
Dr Frukacz and Dr Paisley. The Medical Assessor failed to explain why his opinion differed to that of Dr Frukacz and Dr Paisley. The Medical Assessor noted that she did not get out of her pyjamas and could go five days without showering, which was not a mild impairment. Dr Paisley noted that the appellant had lost weight and her appetite was reduced. The Medical Assessor failed to take this into account and have regard to it when assessing the extent of impairment in this category.(d) The classification in this category involved a demonstrable error and was based on incorrect criteria. The assessment should be revised from mild impairment under Class 2 to moderate impairment in keeping with the evidence and criterial of Class 3.
(e) In respect of social and recreational activities, the Medical Assessor assessed the appellant as Class 3 whereas the evidence indicated that she fell into Class 4. There was no evidence of any engagement by the appellant in social activities. There was no instance when she left her residence to engage in a social and recreational event. The only example referred to by the Medical Assessor was when she was visited by friends who “sat at her home for a short time” over a year and a half ago. The Medical Assessor incorrectly recorded that she "last caught up with her brother and father over six months ago, as he wasn't well". That encounter was with her father, not her brother and visiting an ill parent cannot reasonably be characterised as being a social and recreational event. That single exceptional encounter cannot alter the evidence of the appellant's reclusive existence and suggest that she engaged in social and recreational activities.
(f) Dr Frukacz recorded a Class 4 assessment. There was no up-to-date evidence of rare visits by the appellant to friends. Dr Paisley explained his assessment of moderate impairment on the basis that the appellant is "socially withdrawn and rarely engaged in recreational activities". That was an understatement. Rather than establishing that she rarely engaged in recreational activities, the evidence did not disclose any engagement in social recreation. Dr Paisley also referred to matters which were not relevant to the category of social and recreational activities noting that "she maintains relationships with her children and has some contact with her friends".
Dr Paisley also noted that"[s]he also does some gardening", as supporting his assessment of Class 3, but solitary gardening was not a social activity.(g) The Medical Assessor’s classification in this category involved a demonstrable error, was based upon incorrect criteria, and should be revised from moderate impairment under Class 3 to severe impairment in keeping with the evidence and the criteria of Class 4.
(h) In respect of travel the Medical Assessor placed the appellant in Class 2, whereas the evidence indicated that she falls within Class 3. The Medical Assessor considered that the appellant's impairment in this category was merely moderate because: "She drives down to the supermarket and to her appointments". The Medical Assessor failed to acknowledge the severity of her condition and that she has excessive and impairing anxiety which had a substantial and adverse impact on her ability to go out and to travel to places beyond her home.
(i) Dr Frukacz noted that the appellant:
•reported being petrified of going out;
•described being hypervigilant being constantly on watch whenever she goes out;
•described being worried about what would happen next and this would lead to het feeling anxious and sweaty;
•would particularly worry about her safety and the safety of her family;
•feels constantly on edge;
•had to choose carefully where she would go and continues to take a knife with her whenever she walks the dog;
•is always looking around being hypervigilant, and
•fears being bashed or killed.
(j) The appellant's treating psychologist, Collette Mills, recorded the following results of the DASS 21 assessment of the appellant: Anxiety: Extremely Severe range. Anxiety in the extremely severe range would significantly limit the capacity of the appellant to leave her home and to travel.
(k) Dr Frukacz assessed the appellant at Class 3 of the PIRS category of travel. Dr Paisley, who assessed the appellant at Class 2 of the PIRS category of travel, recorded his reasons as follows: "Anxious whilst travelling by car. Prefers to stay at home. Can drive to Bathurst and Canberra if required".
Dr Paisley failed to acknowledge the effect of the extreme nature of the appellant's anxiety in significantly curtailing her capacity to leave home and to travel. Dr Paisley relied upon two exceptional episodes - a journey to Bathurst on "one occasion" and driving to Canberra "approximately 18 months ago". These two episodes were not representative of the appellant's enduring symptoms and circumstances, or the fact that she was subject to overwhelming anxiety which made leaving her home and travelling an ordeal.(l) Therefore, the Medical Assessor's classification in this category involved a demonstrable error, was based upon incorrect criteria, and should be revised from mild impairment under Class 2 to moderate impairment in keeping with the evidence and the criteria of Class 3.
(m) In respect of concentration, persistence and pace the Medical Assessor placed the appellant in Class 2, i.e. mild impairment in this category, whereas the evidence indicated that she falls within Class 3. The Medical Assessor considered that the appellant's impairment in this category was merely mild, yet even the details he drew upon in making his assessment would support a finding of moderate impairment: The Medical Assessor has failed to acknowledge the severity of the appellant's condition and that she has excessive and impairing anxiety which would obviously interfere with her capacity to concentrate.
(n) Dr Frukacz assessed the appellant at Class 3 of this PIRS category. The Medical Assessor failed to consider Dr Frukacz's report and his assessment in this category, and to explain why his assessment differed from that of
Dr Frukacz.(o) Dr Paisley recorded an assessment of Class 2 for this PIRS category: "Reads newspapers and magazines. Completes paperwork, manages finances and pays bills. Complains of poor concentration". The Medical Assessor did not record that the appellant read newspapers and magazines but noted specifically that she "doesn't read the newspaper" and that she "only looked at the pictures". The Medical Assessor did not record any details of paperwork, managing finances and paying bills. In any event, going to the post office to pay bills was not evidence of a capacity to concentrate. The appellant would, given the overwhelming anxiety noted by her treating psychiatrist and psychologist, find it extremely difficult to concentrate, thus warranting an assessment of Class 3 for this PIRS category.
(p) The Medical Assessor's classification in this category involved a demonstrable error, was based upon incorrect criteria, and should be revised from mild impairment under Class 2 to moderate impairment in keeping with the evidence and the criteria of Class 3.
(q) In respect of employability the Medical Assessor placed the appellant in Class 3, i.e. moderate impairment in this category, whereas the evidence indicates that she fell within Class 5, and was total impaired and cannot work at all.
(r) The Medical Assessor failed to have regard to the criteria of assessment in the category of employability and the other categories which indicate a profound level of dysfunction incompatible with the ability to secure and maintain a real job. The Medical Assessor's speculation that the appellant's "level of anxiety in leaving the house is possibly exaggerated" was unsatisfactory and unfounded. If he considered that the appellant was exaggerating her symptoms, he was bound to engage in a proper forensic examination and to reach a conclusion on the balance of probabilities, referring to evidence he considered to establish exaggeration. He did not do so.
(s) As noted above, the Medical Assessor failed to consider the opinions of the appellant's treating psychiatrist, Dr Frukacz and her treating psychologist, Ms Mills. The extent and severity of the symptoms recorded by her treaters, required reasoned consideration and evaluation by the Medical Assessor. He simply failed to note the evidence of the appellant's treaters, and to explain why he did not accept their record of the appellant's symptoms.
(t) Dr Paisley did not consider that the appellant was exaggerating. There was an obvious typographical error at page 7 of his report. In response to the question "Are there any signs or indications of exaggeration, malingering, inconsistency or unreliability? If so, please discuss them", Dr Paisley wrote: “I could find evidence of any inconsistencies or suggestions of exaggeration or malingering." It was obvious that Dr Paisley intended to state that he could find no evidence of any inconsistencies or suggestions of exaggeration or malingering. He would have discussed any inconsistencies or suggestions of exaggeration or malingering, if he considered them to be relevant. Dr Paisley considered the applicant's psychiatric symptoms to be severe. He would not characterise her symptoms in that way, or provide an assessment of 19%WPI, if he considered that she was exaggerating her level of anxiety, as suggested by the Medical Assessor. Dr Paisley considered that the appellant "continues to experience symptoms of her condition" and that her "symptoms have not improved despite treatment".
Dr Paisley acknowledged that given the severity of the appellant's condition, she was totally impaired, warranting assessment of Class 5 in the category of employability. He considered that the appellant "currently has no capacity to work in any role, including on the open labour market because of the severity of her condition".(u) The Medical Assessor's observations regarding the appellant's deficit with regard to concentration were incompatible with any capacity to secure and retain employment: "She finds that her concentration has been terrible, and she said she struggled with recalling things, pin numbers, phone numbers, and dates. She also struggles with zoning out easily into "a complete trance", thinking about what has happened".
(v) Dr Frukacz recorded his opinion that "due to the severity of Ms Woolf's symptoms she currently has no capacity for employment". It followed that the consensus of the psychiatrists who have provided opinions for either party was that the appellant cannot work. The Medical Assessor’s assessment was in conflict with the evidence and his conclusions were flawed in that he failed to consider and address the opinions of Dr Frukacz and Ms Mills. It was inconceivable that the appellant could secure and retain employment, and follow instructions, and discharge responsibilities in an employment setting, given the severity of her anxiety, and the undisputed evidence that she was petrified to go out, that she feared being bashed or killed, that she was avoidant of people and places, and was plagued by constant hypervigilance.
(w) Therefore the Medical Assessor's classification in this category involved a demonstrable error, is based upon incorrect criteria, and should be revised from moderate impairment under Class 3 to totally impaired in keeping with the evidence and the criteria of Class 5.
(x) The MAC should be revoked and a new certificate issued.
The respondent’s submissions included the following:
(a) Only one report by Dr Frukacz was attached to the ARD, that being dated
3 December 2021. The Medical Assessor acknowledged that report in the MAC and confirmed that Dr Frukacz had made a diagnosis of post-traumatic stress disorder and commented that no incidents in the content of the report met criterion A to meet the diagnosis of post-traumatic stress disorder. The Medical Assessor did not ignore the report of Dr Frukacz but examined the report and commented about the diagnosis from which it can be inferred that he had properly read the report.(b) In relation to the appellant’s submission that the Medical Assessor ignored the assessment of Collette Mills, a report from Ms Mills dated 28 September 2020, was attached to the ARD. The appellant did not advise what information the Medical Assessor should have derived from Ms Mills’ report of 28 September 2020 so as to contradict or cause his opinion to be in error due to it being contrary to Ms Mills reporting. Accordingly, the appellant did not specify the need for the Medical Assessor to make specific reference to Ms Mills’ report, that the issue raised is too general in nature so as to satisfy the requirements under ss 327(c) and 327(d) of the 1998 Act. Further, while the Medical Assessor was required to consider all of the treating and expert evidence before him (which he did as noted under point 10 of the MAC), the Medical Assessor was not required to outline each aspect of every treating and/or expert report within the decision. It was open to the Medical Assessor to refer only to the evidence which is considered pertinent to the impact of his decision.
(c) In relation to self care and personal hygiene, both Dr Frukacz and Dr Paisley assessed the appellant as Class 3. Both experts confirmed that the appellant would shower irregularly. The Medical Assessor acknowledged this in the MAC, but found a degree of exaggeration of her level of functional impairment and considered that there was a degree of symptom exaggeration. Based on the apparent inconsistency that the Medical Assessor found during his examination, it was open to him to consider the appellant having a greater level of functionality than that recorded by
Dr Frukacz and Dr Paisley.(d) In relation to social and recreational activities, the appellant stated that there was no evidence of any engagement by the appellant in social activities. However, it was conceded that the appellant did leave her house to visit her ill father. Dr Paisley noted that the appellant did go out to coffee shops. The appellant reported leaving home to go to the shops, physiotherapist, medical appointments or the mechanic. She reported she participated in gardening. Dr Frukacz acknowledged that the appellant did visit friends, as he stated ‘rarely visits friends’, satisfying Class 3 criteria. This was consistent with
Dr Paisley’s rational for assessing the appellant under Class 3 as she was ‘socially withdrawn and rarely engaged in recreational activities’.(e) In relation to travel, it was open to the Medical Assessor to assess the appellant as Class 2 for travel. Dr Paisley provided the same assessment on the basis that she was able to travel to Bathurst and Canberra for an appointment, being a significant distance beyond that what one would consider ‘local’. In the alternative, the Medical Assessor confirmed that the appellant was able to drive down to the supermarket and to her appointments. This description fitted well into Class 2 being able to travel without a support person, but only in a familiar area such as local shops.
(f) The appellant sought to suggest that the Medical Assessor failed to acknowledge the impact of her anxiety on her ability to go out and to travel to places beyond her home. It was open to the Medical Assessor to assess Class 2 for Travel noting his concern that the appellant’s presentation appeared to involve an element of exaggeration. This was evident where he stated ‘Given her level of anxiety in leaving the house is possibly exaggerated…’
(g) In relation to concentration, persistence and pace, the appellant seemed to rely on her own reporting to the Medical Assessor to suggest that she had moderate level of impairment. There was no doubt that the appellant’s own reporting would suggest she was significantly impaired. However, the Medical Assessor stated that there was a degree of inconsistency and he found a degree of symptom exaggeration. The Medical Assessor noted an inconsistency with regards to ability to concentrate stating that she did not read the newspaper but then later stated that ‘she only saw the newspapers and only looked at the pictures’. The Medical Assessor concluded that there was ‘likely some exaggeration with regards to her capacity to pay attention’ and that he did not accept that she had such significant impairment as she suggested she had. The appellant reported to Dr Paisley that she read the newspaper, was able to complete paperwork for the household and go to the post office to pay bills.
(h) Based on the reported inconsistencies and exaggerations, which is open to the Medical Assessor to find, the Medical Assessor has appropriately assessed Class 2, consistent with the assessment of Dr Paisley.
(i) In relation to employability, the Medical Assessor, following his examination of the appellant, found various inconsistencies and evidence of exaggeration on the basis that the appellant’s reporting did not match the level of impairment he found on examination. Regardless of whether or not the IMEs had found evidence of exaggeration, it was open to the Medical Assessor to make this finding based on his own clinical judgement and the appellant’s presentation at the time of the assessment.
(j) It was open to the Medical Assessor to make a finding that was different to that of the experts engaged provided an explanation was provided. There was sufficient explanation in the body of the MAC.
(k) The MAC did not contain any demonstrable error and was based on the correct criteria and, therefore, the assessment should be confirmed.
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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
PIRS Categories
The appellant alleged error in respect of the assessment of the PIRS categories of self care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace and employability.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J was Campbell J in Ferguson v State of New South Wales [2017] NSWSC 857, where his Honour in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the AMS unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Self care and personal hygiene
The appellant submitted that the Medical Assessor assessed the appellant as Class 2 whereas the evidence indicated that she fell into Class 3.
The appellant submitted that the Medical Assessor noted that the appellant did not get out of her pyjamas and could go five days without showering, which was not a mild impairment and Dr Paisley noted that the appellant had lost weight and her appetite was reduced.
The examples under Table 11. 1 for “Self care and personal hygiene” in the Guidelines are:
“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.”
The Medical Assessor assessed the appellant as Class 2 for self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self-care and personal hygiene - Class 2
During the day, she mainly stays at home, and she said she is targeted when she goes out and her car is destroyed. She said she doesn’t get out of her pyjamas some days, and she only showers infrequently, sometimes up to 5 days without showering. She has been doing some cooking, but not as complex as before, such as eggs and rice and she organises take-aways for the meals, with her husband. She doesn’t do a lot of cleaning at home, apart from light cleaning after they eat. She goes with someone to go shopping, to feel safer. She drives down to the supermarket and to her appointments. She said she last caught up with her brother and father over six months ago, as he wasn’t well, and she doesn’t go out for meals for 3 years, or anyone’s place for meals. Dr Paisley classified her self-care = 3 (showers irregularly and skips meals, reliant on takeaway) Overall, she has sufficient preserved skills that she would be able to look after herself, though not as optimally as before. Hence, I have classed her as mildly impaired.”
Under “present symptoms” the Medical Assessor noted: “Her appetite has been variable, with some days she eats all day and other days she doesn’t feel like eating, and she has put on about 8 kg”.
Under “consistency of presentation” the Medical Assessor wrote:
“There was also a degree of exaggeration of her level of functional
impairment, such as saying she didn’t do any cleaning or cooking, until when it was put to her if she did not do it at all, after which she clarified she did so, though qualified it with restrictions of those tasks. There is also a degree of inconsistency with the level of reported symptom severity and her observable appearance.”In commenting on the other medical opinions, the Medical Assessor wrote:
“My assessment is that she is not as impaired as Dr Paisley’s assessment, with my
reasoning provided for each domain in the PIRS worksheet, with the main differences being in the domains of self-care and employability.”The Medical Assessor referred to the report of Ms Mills dated 28 September 2020 and her diagnosis of adjustment disorder. The Medical Assessor referred to the report of Dr Frukacz dated 3 December 2021 and the diagnosis of post-traumatic stress disorder noting that there were no incidents in the context of the report that met Criterion A. The Medical Assessor did not refer to the PIRS rating form dated 6 October 2021 that was attached to Dr Frukacz’s report.
Dr Frukacz, in the PIRS rating form dated 6 October 2021, assessed the appellant as Class 3 for self care and personal hygiene. He provided the following reasons: “Has to push herself to shower husband says don’t you think you should - … 4 days, will miss meds. Not cooking”.
Dr Paisley in his report dated 15 March 2022 noted that the appellant’s appetite was reduced, and she had lost 10kg of weight. He wrote:
“She brushes her teeth regularly. She rarely cooks and sometimes skips meals. She is more reliant on takeaway food. She does not shower regularly and can go for five days without a shower. Her house is more untidy than it used to be.”
Dr Paisley assessed the appellant as Class 3 for for self care and personal hygiene. He provided the following reasons: “Showers irregularly and skips meals. More reliant on takeaway food”.
The appellant submitted that the classification in this category involved a demonstrable error and was based on incorrect criteria and the assessment should be revised from mild impairment under Class 2 to moderate impairment in keeping with the evidence and criteria of Class 3. In particular, the appellant argued that the Medical Assessor failed to consider
Dr Frukacz’s opinion, made an assessment contrary to the assessments of both Dr Frukacz and Dr Paisley and failed to explain why his opinion differed to that of Dr Frukacz and
Dr Paisley.The Appeal Panel considered that the Medical Assessor had considered the report of
Dr Frukacz although he had merely commented on the diagnosis. It appeared that there had been some improvement since the assessment by Dr Frukacz in that the appellant at the time of the assessment by the Medical Assessor was doing some cooking and light cleaning. The Medical Assessor did make an assessment in this category that differed from the assessments made by Dr Frukacz and Dr Paisley. The Appeal Panel considered that the Medical Assessor had demonstrated the appellant’s function in this category had improved slightly since the assessments by Dr Frukacz and Dr Paisley.Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for self care and personal hygiene. The Medical Assessor is required to make an assessment of impairment based on his findings on the day of assessment.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of self care and personal hygiene and the assessment in this class was not made on the basis of correct criteria. The categorisation of Class 2 for self care and personal hygiene was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Social and recreational activities
The appellant submitted that the Medical Assessor assessed the appellant as Class 3 whereas the evidence indicated that she fell into Class 4. The appellant argued that there was no evidence of any engagement by her in social activities and the only example referred to by the Medical Assessor was when she was visited by friends who “sat at her home for a short time” over a year and a half ago. Further, the appellant submitted that visiting an ill parent cannot reasonably be characterised as being a social and recreational event.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4: Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.”
Clause 11.11 of the Guidelines classified social and recreational activities as an activity of daily living.
The Medical Assessor assessed the appellant as Class 3 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 3
She used to have a lot of friends, but since the subject injury, she has not been able to associate with a lot of friends. She said she last caught up with friends about over a year and a half ago, when she was 60 years old, when they visited her and they sat at her home for a short time. She hasn’t spoken to her friends in over 12 months. She said she doesn’t enjoy much, and she doesn’t do much apart from looking after her dog. She said she last caught up with her brother and father over six months ago, as he wasn’t well, and she doesn’t go out for meals for 3 years, or anyone’s place for meals.
Dr Paisley classed her social activities = 3 (socially withdrawn and rarely engaged in recreational activities)
Overall, I would agree with a moderate impairment.”Dr Frukacz recorded a Class 4 assessment for social and recreational activities. His reasons were as follows: “Rarely visits friends. Declined invitation to go out. Cancelled going to school reunion”.
Dr Frukcz, in his report dated 3 December 2021, noted: "She also said, ‘I'm so depressed’, saying she is no longer undertaking activities that she previously enjoyed such as scrapbooking nor is she visiting friends".
Dr Paisley in his report dated 15 March 2022 noted:
“She has not been on any holidays. She does not go out for meals but
may go to a coffee shop. She does some gardening. She rarely sees her friends. She said that she had not seen her friends for 18 months but did see a close friend when her husband was dying of lung cancer. She has lost several friends”.Dr Paisley assessed the appellant as Class 3 for social and recreational activities. He provided the following reasons: “Socially withdrawn and rarely engages in activities recreational activities”. Dr Paisley commented:
“I rated her social and recreational activities as a Class 3 instead of 4 because she maintains relationships with her children and has some contact with her friends. She was able to travel to Canberra to visit her daughter. She also does some gardening.”
The appellant argued that the evidence did not disclose any engagement in social recreation and the Medical Assessor’s classification in this category involved a demonstrable error, was based upon incorrect criteria, and should be revised from moderate impairment under Class 3 to severe impairment in keeping with the evidence and the criteria of Class 4.
The Appeal Panel did not accept that the evidence did not disclose any engagement in social recreation. Dr Paisley referred to maintaining relationships with her children, going out to a coffee shop and having some contact with her friends. Dr Frukacz, in his PIRS assessment, noted that she rarely visited friends.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 3 for social and recreational activities.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social and recreational activities and the assessment in this class was not made on the basis of correct criteria. The categorisation of Class 3 for social and recreational activities was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Travel
The appellant submitted that the Medical Assessor placed the appellant in Class 2, because she drove to the supermarket and to her appointments, but the evidence indicated that she fell within Class 3. The appellant argued that the Medical Assessor failed to acknowledge the severity of the appellant's condition and her excessive and impairing anxiety which has a substantial and adverse impact on her ability to go out and to travel to places beyond her home.
The examples under Table 11. 3 for “Travel” in the Guidelines are:
“Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
Clause 11.11 of the Guidelines classified travel as an activity of daily living.
The Medical Assessor assessed the appellant as Class 2 for travel. In the PIRS Rating Form, the Medical Assessor wrote:
“Travel - Class 2
She drives down to the supermarket and to her appointments.
Dr Paisley classed her travel =2 (anxious while driving, can drive to Bathurst and Canberra).
I agree that she has mild impairment, given she can still drive in the local area..”
Dr Frukacz, in the PIRS rating form dated 6 October 2021, assessed the appellant as Class 3 for travel. He provided the following reasons: “…sick when had to travel to Dubbo. Even anxious when has to travel to shops”.
Dr Frukacz, in his report dated 3 December 2021, noted that the appellant reported being petrified of going out. He wrote:
“She described how she had to choose carefully where she would go and that she continues to take a knife with her whenever she walks the dog and is always looking around being hypervigilant.”
Dr Paisley in his report dated 15 March 2022 noted:
“She leaves home to go to the shops, physiotherapist, medical appointments or to the mechanic. She said that she needs to buy clothes and shoes but is reluctant to go shopping. On one occasion, she drove 40 minutes to Bathurst for a shoe fitting but was very anxious about it. She drove to Canberra to visit her daughter approximately 18 months ago. She did not feel confident to drive to Sydney. She has not been on any holidays.”
Dr Paisley assessed the appellant as Class 2 for travel. He provided the following reasons: “Anxious whilst travelling by car. Prefers to stay at home. Can drive to Bathurst and Canberra if required”.
The appellant's treating psychologist, Collette Mills, recorded the following results of the DASS 21 assessment of the appellant: Anxiety: Extremely Severe range.
The appellant submitted that the classification in this category involved a demonstrable error and was based on incorrect criteria and the assessment should be revised from mild impairment under Class 2 to moderate impairment in keeping with the evidence and criteria of Class 3. In particular, the appellant argued that Dr Paisley failed to acknowledge the effect of the extreme nature of the appellant's anxiety in significantly curtailing her capacity to leave home and to travel. The appellant argued that Dr Paisley relied upon two exceptional episodes, a journey to Bathurst and driving to Canberra "approximately 18 months ago" but these two episodes were not representative of the appellant's enduring symptoms and circumstances, or the fact that she was subject to overwhelming anxiety which made leaving her home and travelling an ordeal.
The appellant submitted that the extreme nature of the appellant's anxiety was borne out by the following details recorded by Dr Paisley:
“Mrs Woolf said that he feels mentally exhausted and drained. She is on edge the whole time and startles easily. She lives in fear and keeps baseball bats next to each door and a knife under her bed for self-defence. She is hypervigilant and frequently checks cars in the street and locks on her doors. She writes down details of unfamiliar numberplates of cars on her street. If she hears a noise during the night shall get up to investigate. She locks her car doors at traffic lights. She said – ‘the moment I let my guard down, then something will happen’."
Dr Paisley also noted that:
“She is in the process of installing safety cameras. She feels hypervigilant to possible threat and always on edge. She said – ‘I feel like I am going to wet myself if people tap me on the shoulder in public.’ She experiences nightmares of being humiliated, threatened and chased by her colleagues at work. She writes down the numberplates of suspicious cars in her area. She worries that she is being followed. She is afraid of doing gardening in her front yard."
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for travel. The appellant was able to travel on her own, without a support person, and go to shops and appointments and could drive in her local area. The fact that the appellant did not like to leave home and was anxious did not detract from the fact that she was capable of going out on her own and did so in her local area.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of travel and the assessment in this class was not made on the basis of correct criteria. The categorisation of Class 2 for travel was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Concentration, persistence and pace
The appellant submitted that although the Medical Assessor assessed the appellant's impairment in this category as merely mild, the details he drew upon in making his assessment supported a finding of moderate impairment. The Medical Assessor failed to acknowledge the severity of the appellant's condition and that she had excessive and impairing anxiety which obviously interfered with her capacity to concentrate.
The examples under Table 11.5 for “Concentration, persistence and pace” in the Guidelines are:
“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.”
The Medical Assessor assessed Class 2 in relation to concentration, persistence and pace noting:
“She finds that her concentration has been terrible, and she said she struggled with recalling things, pin numbers, phone numbers, and dates. She also struggles with zoning out easily into “a complete trance”, thinking about what has happened. She generally has the TV in the background, and watches 60 Minutes and the news. She said she doesn’t read the newspaper. She then later said she only saw the newspaper and only looked at the pictures.
She was alert and appeared grossly cognitively intact in the assessment.
Dr Paisley classed her concentration = 2 (reads newspapers and magazines, completes paperwork and pays bills)
There is likely some exaggeration with regards to her capacity to pay attention. I did not think she had such significant impairment as she suggested she had, and I note she appears cognitively intact to the previous medical assessors, so I would be inclined to think she has a mild impairment.”Under “Findings on physical “examination, the Medical Assessor noted:
“She presented as a casually dressed and reasonably groomed bespectacled woman. She had an average build and appeared to be her stated age. She engaged cordially in the assessment and provided relevant answers to questions asked.
She told me she was feeling depressed and anxious and vigilant. She displayed no restriction to her range of emotional reactivity during the interview.
She spoke articulately and in a logical sequence most of the time, without reduction of prosody.
There were ongoing fears of being targeted by her previous employer, and hypervigilance.
She had pessimistic thinking and death fantasies with no suicidal ideations.
She was alert and appeared grossly cognitively intact in the assessment.”Dr Frukacz recorded a Class 3 assessment for concentration, persistence and pace. His reasons were as follows: "Low energy can't work in garden. Can't remember passwords. Has to get her daughter to type emails".
Dr Frukcz, in his report dated 3 December 2021, noted that the appellant’s concentration was poor and she reported having a bad memory. He noted that she described how it was an effort to do anything and she felt mentally exhausted. The appellant told him that she was no longer doing activities that she previously enjoyed such as scrapbooking. He noted that symptoms included fatigue and a loss of drive.
Dr Paisley in his report dated 15 March 2022 noted that the appellant lacked motivation and was tired. He wrote:
“She may read newspapers and magazines but does not read books. She does not have any regular hobbies. She sometimes naps during the day.
She does the paperwork for her household and will go to the post office to pay bills.”Dr Paisley assessed the appellant as Class 2 for concentration, persistence and pace. He provided the following reasons: “Reads newspapers and magazines. Completes paperwork, manages finances and pays bills. Complains of poor concentration”.
Under “Mental state examination”, Dr Paisley wrote:
“Mrs Woolf presented as a reasonably groomed middle-aged woman. She was not tearful or distressed during the interview. There were no psychomotor abnormalities and her speech was normal. Her mood was anxious and depressed. She was hypervigilant and fearful. There was no formal thought disorder or delusions. She had occasional passive suicidal thoughts without any specific plans or intentions to act upon them. She was cognitively intact and gave a clear coherent history. Her insight and judgement were reasonable.”
In considering Dr Frukacz’s report, Dr Paisley commented:
“I rated her concentration, persistence and pace as a Class 2 instead of 3 because she reads newspapers and magazines as well as having the ability to pay bills and manage her paperwork.”
The Medical Assessor noted specifically that the appellant "doesn't read the newspaper" and that she "only looked at the pictures". The Medical Assessor did not record any details of paperwork, managing finances and paying bills. He did note that she struggled with recalling things, pin numbers, phone numbers, and dates and also struggled with zoning out easily into “a complete trance”.
The appellant submitted that the Medical Assessor's classification in this category involved a demonstrable error, was based upon incorrect criteria, and should be revised from mild impairment under Class 2 to moderate impairment in keeping with the evidence and the criteria of Class 3. In particular, the appellant submitted that the Medical Assessor failed to consider Dr Frukacz's report and his assessment in this category, and to explain why his assessment differed from that of Dr Frukacz.
The Appeal Panel noted that some of the reasons for assessments (such as not reading newspapers, remembering passwords and having her daughter type her emails) reported by the Medical Assessor and Dr Frukacz supported a finding of moderate impairment. The Medical Assessor commented that there was likely some exaggeration with regards to her capacity to pay attention and he did not think she had such significant impairment as she suggested she had. It appeared that it was on that basis of the possible exaggeration and the fact that she appeared cognitively intact to the previous Medical Assessors, that the Medical Assessor assessed her as having a mild impairment.
The Medical Assessor did not, in the view of the Appeal Panel, provide adequate reasons for his conclusion that there was likely some exaggeration with regards to the appellant’s capacity to pay attention. The appellant had told the Medical Assessor, Dr Paisley and
Dr Frukacz that she has poor concentration. There were some inconsistencies in the history obtained by the Medical Assessor, which he appeared to attribute to some form of exaggeration. The Appeal Panel considered that in those circumstances, the Medical Assessor did not provide an adequate indication of her level of functioning. The failure to provide adequate reasons for his conclusion that there was likely some exaggeration with regards to the appellant’s capacity to pay attention was a demonstrable error.
Employability
The examples under Table 11.6 for “employability” in the Guidelines are:
“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 assessed the appellant as Class 3 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability- Class 3.
She said she feels it would take years to return to work.
Dr Paisley classed her employability = 5.
Given her level of anxiety in leaving the house is possibly exaggerated and her cognition is likely relatively intact, but given the loss of her social identity and reputation in a regional City, I would suggest she could work on a part-time basis, in a different
setting/region, different role, with a different employer, with a moderate impairment.”
Dr Frukacz, in the PIRS rating form dated 6 October 2021, assessed the appellant as Class 5 for employability. He provided the following reasons: “Can’t see herself working in hospitality – no confidence, vulnerable”.
Dr Frukacz, in his report dated 3 December 2021, noted: “It is my opinion that due to the severity of Ms Woolf symptoms she currently has no capacity for employment”.
Dr Paisley in his report dated 15 March 2022 noted: “Mrs Woolf currently has no capacity to work in any role because of the severity of her condition”.
Dr Paisley assessed the appellant as Class 5 for employability. He provided the following reasons: “Unable to work at all because of the severity of her psychiatric symptoms”.
The appellant submitted that the evidence indicated that the appellant fell within Class 5 and was total impaired and could not work at all. The appellant submitted that the Medical Assessor's speculation that the appellant's "level of anxiety in leaving the house is possibly exaggerated" was unsatisfactory and unfounded and he did not engage in a proper forensic examination and refer to evidence he considered to establish exaggeration.
Further, the appellant submitted that the Medical Assessor failed to consider the opinions of the appellant's treating psychiatrist, Dr Frukacz and her treating psychologist, Ms Mills, the extent and severity of the symptoms recorded in their reports and explain why he did not accept their opinions. The appellant argued that the Medical Assessor's observations regarding the appellant's deficit with regard to concentration were incompatible with any capacity to secure and retain employment: "She finds that her concentration has been terrible, and she said she struggled with recalling things, pin numbers, phone numbers, and dates. She also struggles with zoning out easily into "a complete trance", thinking about what has happened". Both Dr Frukacz and Dr Paisley concluded that the appellant could not work. The appellant argued that it was inconceivable that the appellant could secure and retain employment, and follow instructions, and discharge responsibilities in an employment setting, given the severity of her anxiety.
Therefore the appellant submitted that the Medical Assessor's classification in this category involved a demonstrable error, was based upon incorrect criteria, and should be revised from moderate impairment under Class 3 to totally impaired in keeping with the evidence and the criteria of Class 5.
The Appeal Panel considered that the Medical Assessor fell into error when assessing
the appellant as Class 3 in the category of employability in circumstances where she had not worked at all since 20 August 2019. The Medical Assessor appeared to suggest that there was an impairment in this category because of where she lived. There was no evidence in the opinion of the Appeal Panel supporting the Medical Assessor’s reasoning that the appellant could perform less than 20 hours per week in a different position, which required less skill or was qualitatively different. The Medical Assessor stated that the appellant’s level of anxiety in leaving the house was possibly exaggerated but he did not provide adequate reasons for that conclusion. The Appeal Panel concluded that the assessment in this class was not made on the basis of correct criteria and this was a demonstrable error.The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of self care and personal hygiene, social and recreational activities and travel. The Appeal Panel found that the assessment in the classes of concentration, persistence and pace and employability were not made on the basis of correct criteria and this was a demonstrable error.
The Appeal Panel concluded that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination. Having found error, the Appeal Panel considered it necessary to re-assess the PIRS categories of concentration, persistence and pace and employability.
As noted above, Medical Assessor Glozier re-examined the appellant on 18 August 2023. Medical Assessor Glozier provided the following report:
“1.The worker’s medical history, where it differs from previous records
There was little difference in the medical history although some difference in the description of the social activities/ADLs of a limited nature.
Ms Woolf continues to live with her husband Michael, although they have effectively separated under one roof for many years. They have separate beds/baths, she manages her own accounts and they talk to each other but do little else together. He has always done the washing but otherwise she is responsible for her own chores, food etc. She reports frequent use of takeaways although manages her gluten diet well because of her gluten intolerance. This is also linked to her diverticular disease. She had an episode after the last PIC review which she managed at home with Augmentin, heat packs and more Valium, exacerbated by stress. She has had a recent dermatitis rash for which she has been prescribed cream.
She reports going to bed around 8:30-9pm and lying there, trying to unwind whilst at the same time is hypervigilant about noises outside. It may take her hours to fall asleep. She did try doing some body scans without success. She will have a few hours sleep before waking and then from the early hours of the morning has broken sleep/dozing, getting a few more hours, achieving a low sleep duration. In the morning her getting-up time is determined by whether she hears noises which she will have to go outside and investigate. She has little routine and says that she eats a couple of meals a day. She suggested she has put on a few kilos this year. Although she said this was attributed to the medication, given this has very few innate calories, it must be due to a combination of reduced activity and eating. She continues to shower infrequently, generally only if she has to leave home, and because she does not see people does not need to necessary get dressed during the day.
She says that she has really not seen anybody for a long time. She will not go to see people because of her fears, vigilance, anxiety and panic when outside. She will not allow people to come to her house because she feels that this will lead them to be associated with her and thus potentially subject to harassment and victimisation. She fears what will happen to anyone who has associated with her. She noted that she will be followed at times by her tormentor’s associates, that she continues to have her car vandalised and has notes left, with the same derogatory accusations as previously or will have such things as a coffee cup from a café in Bathurst left on her veranda. Due to fear of these incidents she says she has not been out for a coffee, meal or any other social activity for some years. She has some contact with her sister-in-law who lives two blocks away but this appears to be when she gets her sister-in-law to accompany her to the shops and wait outside, while she goes in and does her shopping. She said otherwise she sees no-one. She had some limited contact with colleagues quite some time ago but none since.
During the day she will walk quite frequently although almost solely around her home, for her leg condition. She has frequent appointments with GP, physio, dentist and podiatrist in town. She says she tries to go at the last minute, ensuring that no-one goes in behind her and sits in the corner because she is so vigilant and aware. Otherwise she will do a bit of cleaning and food preparation. When she shops she ‘gets in and out quickly’ and, if possible, prefers someone to drive her down there. Whilst there she described hypervigilance, panics with full-blown panic symptoms and an increased startle reflex when someone touches her or comes close. When she does leave the house she reports that she always carries a knife with her, even if she is going to appointments or shopping, and is highly vigilant.
At home she has the TV on in the background at a low noise so she can hear outside and will really only watch the news. She may have a bath to relax as she finds herself very physically tense much of the time with frequent migraines. Otherwise she says she does little but ruminate about her treatment at work, what happened to her, how unfair this is, and the implications of what she sees as a highly-vindictive, victimising tormentor. She says that these thoughts distract her from focusing on other things, e.g. reading and watching television, and dominate her thoughts. At times it is so bad that she wishes she wouldn’t wake up in the morning. She seems convinced that something bad will happen to her at the hands of her ex-boss in the future, that this will ‘not end well’ and she is likely to die. She can see no escape from her situation. She continues to believe that she is a major focus of this man’s anger and victimisation and that he operates through other people, despite apparently being a multimillionaire drug dealer with numerous other demands. She acknowledged that this seemed hard to believe but says that she has all the evidence, that others do not know him and that others have seen evidence of such things as her car being vandalised. She says she was also warned by previous colleagues who have taken steps to protect themselves when they left.
Her relationship with her daughter and son who live in the same place as in the report is much the same. Her son will come around occasionally, and her daughter contacts her regularly whilst her husband, who is much older, appears to provide a similar minimal level of support as he has done since their separation. Her father lives about four blocks away with his partner and, although sick, does not need any care.
She reports using her phone for basic things such as internet banking, bills and some emails. She says she has looked at Seek for jobs, but feels she cannot mentally do things and that if she did work, would feel trapped there and that he would find out where she was and harm her. She is too fearful to attend work so sees this searching as a somewhat pointless task. She tried to look at some meditation techniques but found these difficult to follow and it is hard to explain although does use some apps, e.g. ‘Calm.’2. Additional history since the original Medical Assessment Certificate was performed
She continues to see her psychologist on a monthly basis. She describes her as validating, non-judgemental and very supportive. She could not describe any significant improvement that she has made with this treatment, but rather this is the only person she feels she can talk to. She saw Dr Frucasz once last year and then consulted via telephone. She has now been told that she needs to have telehealth appointments and so is on a waiting list for another appointment. She continues to see her GP to manage her various conditions. Current medications are Crestor, Mirtazapine 15-30mg, Mersyndol when she has a headache, and up to 3-4 Valium per week according to her degree of anxiety.
3.Findings on clinical examination
Ms Woolf was reasonably-kempt. There was 20 minutes’ delay due to her technical difficulties with the Teams platform but she was not overly thrown by this and displayed some reactivity. She was coherent and logical but frequently reverted to focusing on the threats, victimisation and consequences, moving off the topic of the assessment. She could be brought to bear back on the focus of the questions. She has a generally dysphoric affect. Her main emotions are of profound fear and anxiety but also can be low and angry associated with this. She now enjoys nothing and has a passive sense of not wanting to be here. Her thoughts are dominated by fear, torment and victimisation, both in the past and the likelihood of them continuing in the future, and extending to friends and family. She sees herself as trapped and unable to move on in any way. Any suggestion of change is dismissed due to this man’s apparent immense power reach and focus on perpetually tormenting her. Although this appears extremely over-valued, I could elicit no elaboration to other people outside of those associated with him, other agencies or actions. She has full-blown panic attacks, high degrees of hyperstartle/ hypervigilance, avoidance of people/numerous situations, in large part to protect them from her perceived situation, as opposed to arising from her condition. She is very vigilant for noises, has a broken light sleep of low duration with onset and middle insomnia and reduced daytime energy and motivation.
4.Results of any additional investigations since the original Medical Assessment Certificate
Nil.Summary
Ms Woolf had episodes at work that she considered life-threatening and continuing threatening experiences that have perpetuated this fear. She has features in all of the domains of re-experiencing, avoidance, arousal and cognition required for the diagnosis of a Post-Traumatic Stress Disorder. Of note, some of her ‘impairment’ actually arises not from her condition but from her desire to protect herself and others from victimisation, and intimidation by her previous employer and the consequences of what happened when working with him. As with other assessors, from the information I have I am not convinced that this is delusional, although many of her ideas are held with a quite intense valuation. She acknowledged how bizarre they may seem to many, undermining the idea that this is a paranoid psychotic illness.
Ms Woolf effectively lives independently, manages a range of home activities, is able to do her shopping quickly although may need some assistance to travel there at times. She manages a good gluten-free diet although will rely on takeaways and some support from her husband that has been present for a long time. Her care of her home is not as good and she may not dress or shower if she has no reason to leave home:
She will not leave her home for any social events as she fears the implications for herself if she were to do so and others if they were seen with her, and has withdrawn from all of her friends. She says that she has also stopped them from coming around, again because of her fears for their safety should they do so. This is challenging in that it is difficult to disentangle to what extent this relates to her mental health condition and to what extent an accurate appraisal of her reality given all of the other episodes that happened to her. Given what she said, it would appear that much of this is the latter, but there is impairment as a result of her actual psychiatric condition rather than the reality of the threats and victimisation that she faces and how others have been caught up in this, e.g. veiled threats to her daughter.
She is able to travel locally to various appointments, meetings and at times go to the shops on her own but prefers to do the latter with other people and otherwise really does not leave her home. She noted that she is always armed when she does so.
In regards to social functioning she has withdrawn from many friends because of the fear of the implications for them, has a similar relationship to her husband that she has had for many years and remains supported by her daughter and son:
The panel had found error in two classes of the PIRS which required reassessment.
She reports only being able to watch some news but otherwise is highly distractible, focused on the noises outside, potential victimisation, stalking which disrupts her ability to persist and focus. This was observable during the interview today although otherwise she was logical and consistent: a moderate impairment in Concentration, persistence and pace.
In terms of employability, although she has looked at other jobs, her fears, arousal, hypervigilance, panic prevent her from obtaining any job on the open job market and she is totally impaired.
Classes in ascending order: 2, 2, 2, 3, 3, 5
Aggregate score: 17
Median class: 3
Whole person impairment: 19%”
The Appeal Panel has adopted the report and findings of Medical Assessor Glozier.
As noted above, the appellant alleged error in respect of the assessment of the PIRS categories of self care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace and employability.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for self care and personal hygiene, Class 3 for social and recreational activities, and Class 2 for travel. The assessments made by the Medical Assessor in these categories were on balance consistent with the descriptors set out in Tables 11.1, 11.2 and Table 11.3 of the Guidelines.
The Appeal Panel was satisfied that the ratings of Class 2 for concentration, persistence and pace and Class 3 for employability were in error and the assessments made on the basis of incorrect criteria.
Medical Assessor Glozier carried out an assessment of two of the PIRS categories in his re-examination, namely concentration, persistence and pace and employability. The Appeal Panel agreed with his assessment in these two categories.
Following the re-examination by Medical Assessor Glozier, the Appeal Panel assessed concentration, persistence and pace as Class 3 (not Class 2 as assessed by the Medical Assessor), and employability as Class 5 (not Class 3 as assessed by the Medical Assessor).
In summary, the Medical Assessor made an assessment of 7% WPI in respect of a psychological injury. The Appeal Panel has made the same ratings in respect of the scale for self care and personal hygiene, social and recreational activities and travel. However, the Appeal Panel has assessed Class 3 in the scale for concentration, persistence and pace and Class 5 for employability. The Appeal Panel therefore made an assessment of 19% WPI in respect of a psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 February 2023 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: | W5159/22 |
Applicant: | Joanne Michelle Woolf |
Respondent: | Venus Café Bar – Orange Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below.
Table - whole person impairment (WPI)
| Date of Injury | Chapter, page and paragraphnumber in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 21 August 2019 | Chapter 11 page 54 | 19% | 0 | 19% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | ||||
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.
0
5
0