Woolworths Group Limited v Newman
[2022] NSWPICMP 77
•31 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Woolworths Group Limited v Newman [2022] NSWPICMP 77 |
| APPELLANT: | Woolworths Group Limited |
| RESPONDENT: | Joseph John Newman |
| APPEAL PANEL: | Member William Dalley Dr Douglas Andrews Professor Nicholas Glozier |
| DATE OF DECISION: | 31 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by insurer asserting availability of additional relevant information, incorrect criteria and demonstrable error in respect of psychological injury acquired by gradual process; additional material relating to capacity to earn, relevant to error with respect to the Psychiatric Impairment Rating Scale area of function, “employability”; all material predated Medical Assessment Certificate (MAC) examination and appeared to have been in the possession of the insurer; that material, apart from one post MAC certificate of capacity, not admitted; application of Petrovic v BC Serv No 14 Pty Ltd and Ors; further application by appellant to admit other late documents including certificates of capacity, reports of treating psychiatrist and psychologist; not objected to by respondent worker; admitted pursuant to section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998; Held- the additional material admitted required re-examination of the respondent worker; error established with respect to failure to provide reasons for assessment of Class 5 with respect to “employability”; following re-examination Panel was satisfied that respondent worker is appropriately assessed within Class 5 “employability”; the additional evidence and the opinion of the Medical Assessor member of the Panel established that the respondent worker appeared to have suffered an increased level of impairment with respect to “social and recreational activities” and was now appropriately assessed as falling within class 3 rather than Class 2 assessed in the MAC; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 October 2021, Woolworths Group Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 September 2021.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The respondent, John Joseph Newman, commenced employment with the appellant, Woolworths Ltd, in 2015. As a result of events that occurred in the workplace over a period of time, Mr Newman suffered a psychological injury. He consulted his general practitioner and was referred to a psychiatrist, Dr Su Kalava, as well as receiving counselling with a psychologist, Ms Kate Moylan.
In October 2020 Mr Newman was assessed by an independent medical expert, Dr John Baker, at the request of Mr Newman’s solicitors, for the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). Dr Baker diagnosed Mr Newman as suffering a Major Depressive Disorder with comorbid Alcohol Use Disorder. Dr Baker assessed Mr Newman as suffering 24% whole person impairment (WPI). He assessed a one 10th deduction in respect of a pre-existing psychological condition which contributed to the overall level of impairment, so as to yield an assessment of 22% WPI in respect of the subject psychological injury.
Mr Newman’s solicitors made a claim for lump-sum compensation pursuant to section 66 of the 1987 Act. The insurer’s solicitors arranged for Mr Newman to be examined by an independent medical expert, Dr Yajuvendra Bisht, psychiatrist, who examined Mr Newman on 18 December 2020. Dr Bisht diagnosed Mr Newman as having suffered a major depressive episode and substance use disorder. He assessed Mr Newman as suffering 7% WPI, one tenth of which he attributed to a pre-existing psychological condition, giving a total of 6% WPI resulting from the subject injury.
Mr Newman’s solicitors lodged an Application to Resolve a Dispute in the Commission. The respondent maintained its denial of liability and the medical dispute was referred to the Medical Assessor with a deemed date of injury, 20 February 2019.
Mr Newman was assessed by the Medical Assessor on 30 August 2021. The Medical Assessor diagnosed Mr Newman as currently suffering a Major Depressive Disorder with associated anxiety and Alcohol Abuse Disorder. The Medical Assessor assessed
Mr Newman as suffering 19% WPI. The Medical Assessor agreed with Dr Baker and Dr Bisht that Mr Newman had suffered a pre-existing condition which contributed to the overall level of impairment assessed and deducted one tenth so as to yield 17% WPI (after rounding) as a result of the subject psychological injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because there was additional relevant information in the matter that required an updating of the history which could be obtained in the course of re-examination and further consideration of the extent of impairment.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Labour Market Analysis dated 12 February 2021;
(b) Work Capacity Decision dated 14 May 2021;
(c) Email correspondence (24 March 2021 to 16 June 2021);
(d) Allied Health Recovery (Ms Kate Moylan) requests (6 June 2020 to 2 December 2020);
(e) Report of Kate Moylan dated 18 August 2021, and
(f) Certificates of Capacity (Dr Umer - 16 December 2020 to 7 September 2021).
The appellant submits that the evidence is “additional relevant information” for the purposes of section 327(3)(b) of the 1998 Act and is relevant to the capacity of Mr Newman for employment which, in turn, is relevant to assessment of the assessment of WPI under the Psychiatric Impairment Rating Scale (PIRS) rating system. The appellant submits that the evidence was not available but does not explain why it could not have been obtained. The appellant submits that certain of the documents came into existence after the date of the referral to the Medical Assessor.
The appellant noted the decision of Hoeben J in Petrovic v BC Serv No 14 Pty Ltd and Ors[1] at [31] where His Honour said;
“In my opinion the words “availability of additional relevant information” qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, “additional relevant information” for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS.”
[1] [2007] NSWSC 1156
The respondent objected to the admission of the evidence, submitting that the material was available to the appellant prior to the examination and was not evidence of a medical kind. The Panel considers that, although it is arguable that the evidence is not of a medical kind it is arguably evidence “which is directly related to the decision required to be made”.
The Panel notes that “additional relevant information” is able to be admitted pursuant to section 327(3)(b) “only if the additional information was not available to , and could not reasonably have been obtained by, the appellant before the medical assessment appealed against”. Similarly, section 328(3) provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The Appeal Panel determines that the evidence which predates the examination should not be received on the appeal because, on the face of the material sought to be admitted, those documents were in the possession of the appellant prior to the date of examination on
30 August 2021 and would therefore have been available to the appellant. The Certificate of Capacity dated 7 September 2021 would not have been available to the appellant. It contains the opinion of a medical practitioner as to Mr Newman’s fitness for employment at that time and is accordingly relevant to the assessment of impairment.The certificate of Dr Umer dated 7 September 2021, which was not available prior to the examination will be admitted and taken into consideration.
In addition, the appellant filed an Application to Admit Late Documents dated 2 March 2022 seeking to have the following documents admitted pursuant to rule 10.3 of the Workers Compensation Commission Rules 2011[2]:
[2] The Panel accepts that this is intended to be a reference to Rule 67 of the Personal Injury Commission Rules 2021.
(a) Report Dr Sujatha Kalava 15 February 2022;
(b) Report Dr Sujatha Kalava 7 December 2021;
(c) Report Dr Sujatha Kalava 23 August 2021;
(d) Certificate of Capacity Dr Syed Kaleemuddin Syed Hameed 16 February 2022;
(e) Certificate of Capacity Dr Syed Kaleemuddin Syed Hameed 17 January 2022;
(f) Certificate of Capacity Dr Syed Kaleemuddin Syed Hameed 21 December 2021;
(g) Certificate of Capacity Dr Syed Kaleemuddin Syed Hameed 15 November 2021;
(h) Allied Health Recovery Request Kate Moylan 11 October 2021, and
(i) Fees estimate Brisbane Waters Private Hospital 31 January 2022.
That material postdates the examination by the Medical Assessor and would not have been available to the appellant prior to the examination. The respondent worker does not object to admission of that material. Accordingly, the Panel determines that this evidence should be received on the appeal.
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 together with the documents admitted by the Panel.
Further medical examination
Dr Douglas Andrews of the Appeal Panel conducted an examination of the worker on 2 March 2022 and reported to the Appeal Panel. His report is set out below.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that, in applying the Guidelines and assessing
Mr Newman by reference to the PIRS, the Medical Assessor had failed to give adequate reasons for his assessment of Mr Newman as falling within Class 5[3] of the area of function described in Table 11.6 of the Guidelines – employability. The appellant further submitted that additional evidence directly contradicted the finding that Mr Newman had no capacity for work accordingly fell into Class 5 in that area of function. That finding was not open on the evidence.[3] "Totally impaired: Cannot work at all"
In reply, the respondent submits that it was open to the Medical Assessor to assess
Mr Newman as falling within Class 5 “employability” and that the Medical Assessor had provided adequate reasons, explaining that assessment.
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[4] (Vegan) 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.
[4] [2006] NSWCA 284
The Medical Assessor recorded a detailed history of Mr Newman’s social, employment and medical history. The Medical Assessor recorded the onset of symptoms in 2019 which had led Mr Newman to consult his general practitioner for assistance. He was then diagnosed with Major Depressive Disorder and Anxiety and was prescribed antidepressant medication. He commenced treatment sessions with a psychologist which were interrupted by Covid restrictions. After changing general practitioners, Mr Newman’s medication was increased and he was referred to a psychiatrist, Dr Kalava.
The Medical Assessor noted that Mr Newman had developed increasing symptoms with feelings of helplessness, hopelessness and despair as well as ongoing anxiety with a relapse to abuse of methamphetamine. The Medical Assessor noted that Mr Newman had ceased work in mid-2020 and not worked since that time. His methamphetamine use increased in frequency and he subsequently suffered an apparent psychotic episode leading to hospital admission following attempted suicide.
The Medical Assessor recorded that Mr Newman’s symptoms had improved overall in the last six months which he felt was related to cessation of substance abuse but also increasing distance from work triggers which gave rise to his symptoms. He had ceased antidepressants in early 2021. He noted that Mr Newman was continuing to consult his treating psychiatrist and psychologist for management of his anxiety and depression. The Medical Assessor identified attendance at Narcotics Anonymous as providing not only support in dealing with addiction but also as a source of social connection.
The Medical Assessor recorded that Mr Newman continued to feel depressed but felt there was some improvement. He noted improved appetite and sleep as well as personal care. He cared for a dwelling and for his adult son. The Medical Assessor reported:
“His motivation is still low and whilst he is managing around the house he has to force himself to do things. He is also much more easily fatigued than he previously was. Generally his self-confidence has been impaired and he tends to feel badly about himself. This sometimes leads to concerns about his future and occasionally he still has suicidal ideation, which even includes planning although he says that he is now protected because of his need to look after his children.
He continues to experience considerable anxiety and is still much more withdrawn than he was prior to his injury. He suffers from irritability but is able to manage this better now.”
The Medical Assessor noted previous work history, noting that after a series of short-term jobs, Mr Newman had worked at Woolworths from 2015 through to 2020. He noted that
Mr Newman had not worked since. He said; “given his current symptomatology it is unlikely that he will be able to work in the foreseeable future”. The Medical Assessor summarised the situation:“Mr Newman continues to suffer a range of significant symptoms related to his injury at Woolworths. He has not worked for over 12 months now. His symptoms and impairment persist despite appropriate treatment. It is difficult to see that he will be able to function at all in the workforce in the foreseeable future.”
On mental state examination Mr Newman appeared depressed and anxious with acknowledged ongoing intermittent suicidal ideation which the Medical Assessor felt was “generally more passive than active”. He accepted Mr Newman as a “motivated, honest and engaged witness”. The Medical Assessor noted the pre-existing history of addiction to stimulants and alcohol abuse.
The Medical Assessor reviewed the reports of the independent medical experts, Dr Baker and Dr Bisht. He agreed with Dr Baker’s diagnosis of Major Depressive Disorder and Alcohol Abuse Disorder. The Medical Assessor felt that Mr Newman’s condition had significantly improved since Dr Baker’s assessment. He noted Dr Bisht’s diagnosis of Major Depressive Disorder although Dr Bisht had felt that maximum medical improvement had not been reached. The Medical Assessor disagreed with a number of Dr Bisht’s class readings noting his reasons for disagreement. The Medical Assessor noted:
“Finally Dr Bisht determined that Mr Newman suffered from Class 3 on employability. At a loss as to how he determined this. At the time that I reviewed Mr Newman he had not worked for 12 months and continues to have significant symptoms that I believe would make it highly unlikely is able to work at all. I think the class 5 is more appropriate. I agree with the 10% standard deduction.”
In providing reasons for assigning Class 5 in the area of function “employability” the Medical Assessor said:
“Mr Newman continues to suffer a range of significant symptoms related to his injury at Woolworths. He has not worked for over 12 months now. His symptoms and impairment persist despite appropriate treatment. He is unable to work at all, now or in the foreseeable future.”
The appellant submitted that the Medical Assessor had “failed to provide adequate reasons to support the assessment of Class 5 employability”, asserting “it has been established that there is an implied obligation to provide reasons”, noting the statements of Basten JA in Vegan at [399].
The judgement of Basten JA in Vegan, in fact, addresses the obligation of an Appeal Panel to provide reasons. The Panel accepts that there is a statutory obligation on a Medical Assessor to provide reasons for the assessment in the MAC[5]. The obligation to give reasons sufficient to enable the path of reasoning to be followed was described by the Appeal Panel in Stewart v Camden Council[6] as “the relatively lenient requirements to give reasons stated by the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 (Wingfoot)”.
[5] Section (2) (c)
[6] [2021] NSWPICMP 106 at [13]
The Medical Assessor has failed to provide sufficient appropriate reasons for assessing
Mr Newman as falling within Class 5 with respect to the area of function, “employability”. The Medical Assessor, in the PIRS Table, assessed Mr Newman as falling within Class 5 stating “His symptoms and impairment persist despite appropriate treatment”.At an earlier point in the MAC, the Medical Assessor noted that Mr Newman had not worked for more than 12 months: “and continues to have significant symptoms that I believe would make it highly unlikely that he is able to work at all”.
The Panel considers that the use of the phrase “symptoms and impairment” and “significant symptoms” do not explain the relationship between the effects of the psychological injury and the assessment that Mr Newman has no capacity for employment and so falls within Class 5.
Although symptoms are recorded at various places throughout the MAC, the reasons provided by the Medical Assessor do not make it clear whether he considers particular symptoms to be relevant to this aspect of the assessment.
Accordingly, the Panel is satisfied that demonstrable error has been established. It is therefore necessary for the Panel to review the material in order to assess the extent of impairment arising from the subject psychological injury.
In addition to the material before the Medical Assessor, the material now includes the certificate of capacity dated 7 September 2021 by the general practitioner, Dr Sophia Umer, stating that Mr Newman has “capacity for some type of work from 8/9/2021 to 30/9/2021 for normal hours/day 2 days/week”. A number of subsequent certificates of capacity by the general practitioner, Dr Syed Hameed, from 15 November 2021 to 16 February 2022 certified Mr Newman as fit for normal duties one day per week were also admitted without objection.
There are also a number of reports from the treating psychiatrist, Dr Sujatha Kalava. In his letter dated 23 August 2021 to the general practitioner, Dr Umer, Dr Kalava records the diagnosis of “adjustment disorder – polysubstance use disorder – THC, alcohol and amphetamines”. Medication is recorded as Quetiapine – 25 mg at night increasing to 50 mg. The psychiatrist notes “patient ceased escitalopram and recommenced quetiapine 25 mg nocte – finding it useful. Ongoing THC use – advised re cessation”.
In a letter dated 7 December 2021 to Dr Umer, the treating psychiatrist records a similar diagnosis and notes the need for supportive “psychotherapy and individual psychotherapy – trauma based”. Dr Kalava noted “less paranoid lately – has stopped substance use – 2 to 3 weeks – encouraged to maintain sobriety”.
In a letter to the insurer dated 15 February 2022 Dr Kalava notes that Mr Newman has been free of substance abuse for about three months but continues to “feel anxious, agitated, distressed, paranoid and generally unable to engage in self-care/study/work-related activities”. Dr Kalava was of the opinion that Mr Newman would benefit from inpatient admission “to review medications, establish healthy routines, and engage in group therapy program for substance use and mood management”.
A request for approval of a Recovery Plan by way of psychological therapy by Kate Moylan, (the treating psychologist) dated 11 October 2021 notes a diagnosis:
“Joseph (Joe) presents with symptoms consistent with Major Depressive Disorder and Generalised Anxiety Disorder that appears to have been triggered by workplace bullying and harassment. In May 2021 Dr Kalava, Psychiatrist, Brisbane Waters Private Hospital, diagnosed Joe with Adjustment Disorder and Polysubstance Use Disorder. THC, Alcohol and Amphetamines.”
Under the heading “Current signs and symptoms” Ms Moylan has noted:
“Joe’s estimated global assessment of functioning indicates that he continues to struggle with emotional and psychological difficulties that appear to interfere with perceptions, judgement, thinking, communication and mood. The client’s mental state includes rumination and difficulty concentrating.
He continues to report feeling depressed in mood, and his energy levels have increased. Joe is less socially isolated, having moved in with his family. He has recently engaged with a new rehab provider and is making promising steps towards engaging in the workforce.
Joe recently completed a Depression, Anxiety and Stress Scale 21 (DASS 21), the scores indicate that relative to the sample population, Joe is in the moderate range for depression; extremely severe range for anxiety; severe range for stress.
He also completed the Impact of Event Scale – Revised (IES-R), this indicated that Joe is currently experiencing moderate overall symptoms; moderate avoidance symptoms; moderate intrusion symptoms; moderate hyperarousal symptoms.”
The Panel considers that there is additional relevant information which is of a nature requiring re-examination of Mr Newman by a Medical Assessor member of the panel with respect to assessment of the area of function “employability” and his level of function in each of the other areas of function in the light of the additional material.
Examination of Mr Newman was carried out by Dr Douglas Andrews, a Medical Assessor member of the Panel on 2 March 2022. Dr Andrews’ report to the panel is as follows:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
1.The workers medical history, where it differs from previous records
Mr Newman continues to consult a psychologist Ms Kate Moylan and psychiatrist Dr Su Kalava, every 4 to 6 weeks.
He takes no psychiatric medication, although he has had discussions with his psychiatrist about admission to a Brisbane Waters Private Hospital to explore medication options. He hasn’t tolerated previously used drugs well.
Mr Newman has a history of substance abuse, favouring methamphetamine. He had two stints in drug and alcohol rehabilitation units about ten years ago, each lasting about 12 months. He continues to have occasional relapses at times of stress, the most recent being about one month ago when he used methamphetamine over about two days.
His symptoms remain severe. He has frequent low moods with a reduced ability to experience positive emotions. He is irritable and prone to anger, tending to self-isolate to cope with this. He has subjective difficulties with concentration, attention and short-term memory, primarily due to distraction by internal dialogue. He continues to have frequent thoughts of suicide, but his daughters are protective factors.
He goes to bed late with a sleep latency often of several hours. He frequently wakes through the night.
He has been comfort-eating and has gained 10 kg over the last month. He currently weighs 105 kg; at 178 cm, his BMI is 33.1, in the obese range.
He has reduced libido.
Mr Newman meets the diagnostic criteria for a major depressive disorder with anxious distress, as diagnosed by Dr Blom.
2.Additional history since the original Medical Assessment Certificate was performed
Mr Newman has moved frequently over the last few years. He is now living in rental accommodation at Blacktown with his partner, Lolita, their six-year-old and eight-year-old daughters, and his 17-year-old stepdaughter. He has two adult sons who live on the Central Coast.
He has been with Lolita for about ten years, although they have had periods of separation. They were not living together when the MA assessed Mr Newman. They have been back together for several months, but their relationship remains volatile. After arguments, Lolita often leaves to stay with her mother, who lives locally, taking the girls with her. She has frequently threatened to end the relationship.
Mr Newman has not worked since leaving his employment with Woolworths. He had attempted to return to work in June or July 2021 and had secured a job offer with a meat processing plant. He attended induction but failed to return the next day because he found the process confronting and anxiety-provoking. He said that he “self-sabotaged” and relapsed into substance use briefly.
He has done no other work, including in a voluntary capacity.
I have reviewed all the PIRS impairments categories to ensure that they are current.
Mr Newman rises shortly after 7:30 AM when his young daughters get up. He may help prepare their lunch, assist with breakfast, and sometimes drive them to school.
Although he has little motivation to help around the house, he may assist with laundry and cooking (he has experience as a chef).
He showers and wears clean clothes most days, sometimes after prompting.
He overeats, favouring junk food, sometimes binge-eating during the night.
He has stopped his exercise regimen.
Before becoming unwell, he enjoyed skateboarding, cycling, riding a dirtbike, and going to the gym. He was socially active with his family and friends.
He has sold his dirtbike. He still owns a mountain bicycle and skateboard but does not use them. He rarely goes out with the family or sees friends.
Most of his travel is local, such as driving his daughters to and from school. When he goes shopping, he prefers to do so with Lolita. He occasionally drives further afield; for example, he has travelled to the Central Coast to see his sons about a month ago. He is anxious when driving and prefers not to go out.
His relationship with Lolita is strained, and they have discussed further and more permanent separation. Although he feels emotionally distant from them, he describes reasonably good relationships with his daughters and stepdaughter. He keeps in touch with his sons. He has one friend, whom he sees infrequently but talks with on the phone.
He spends much of his time in his bedroom. He may watch movies but pays them little attention, offering dozing during the movie. He has never had an interest in reading. He has no projects or hobbies.
3.Findings on clinical examination
I assessed Mr Newman in his home by video link. The connection quality was excellent, allowing me to do a comprehensive assessment.
He appeared casually attired and well-groomed. He is anxious about the interview and described being depressed. His affect was restricted, consistent with his stated mood and coherent with the content of the interview.
The interview lasted about one hour. Mr Newman was cooperative but struggled with details, dates and sequences of events. He became visibly distressed on several occasions but recovered quickly.
He acknowledged thoughts of suicide.
4.Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done since the original medical assessment certificate.
Mr Newman isolates himself in his bedroom much of the day. He does a few chores around the house, including the laundry and cooking, often after prompting or encouragement from his partner. He showers and wears clean clothes most days. He has stopped exercising and eats a poor quality diet; as a result, he is now overweight. This is consistent with a Class 2 rating for self-care and personal hygiene.
Mr Newman remains socially withdrawn and has given up previously-enjoyed activities such as cycling, dirt bike riding and attending the gym. He rarely has social outings.
Dr Blom cites his attendance at Narcotics Anonymous as a social outing and that he is ‘started to keep contact’ with ex-work colleagues from Woolworths. The MA also notes that he plans (my emphasis) to ride his skateboard and hopes to return to motor bike riding. Mr Newman has sold his motor bike and still owns a skateboard. The MA had determined a Class 2 rating for social and recreational activities, but this is more consistent with a Class 3. I note that neither party appealed the rating given by the Medical Assessor.He travels independently locally but is more anxious about doing so. Rarely he will travel further afield, preferring to have his partner present when he is away from home. This is consistent with a Class 2 rating for travel.
He is again living with his partner, stepdaughter and daughters. However, his relationship with his partner is fragile, with regular short periods of separation; they have discussed permanent separation. When his partner leaves, she takes the children to her mother’s house. He keeps in touch with one old friend, whom he has known from this stay in rehabilitation ten years ago. He does not have contact with a broader group of friends. This accords with Dr Blom’s rating of Class 3 for social functioning.
I have read and considered the late documents that arrived after my assessment. They provide letters from psychiatrist Dr Kalava, Certificates of Capacity signed by general practitioner Dr Syed Hameed completed late 2021 and early 2022, and an Allied Health Recovery Request form filled in by Ms Kate Moylan on 11 October 2021.
Dr Kalava confirms that she has requested support from the insurer for a hospital stay for Mr Newman, also noting that he “has been fearful/reluctant to trial medications.”
The Certificates of Capacity note ‘capacity for some type of work for the dates up until 18/02/22 (the latest Certificate) for 8 hours/day 1 days/week.” This mirrors the opinion of Ms Moylan, who suggests that Mr Newman work in another area of his workplace for “eight hours per week, either eight hours in a day or two four hours shifts.”
Dr Kalava has not offered an opinion regarding employability, but a request for hospitalisation and noting problems with using medications, suggests at least a moderately severe disorder with limited progress in therapy.
It is unclear how Dr Hameed and Ms Moylan determined that Mr Newman could work in a limited way and whether they arrived at their opinions independently.
IME Dr John Baker, 31 October 2020, has determined a Class 5 impairment for employability, stating:
“Mr Newman was unemployed at the time of this assessment. He was unfit for work due to recurrent suicidal thoughts and intrusive ideas of hopelessness. He was impulsive and had punched holes in walls and thrown objects when agitated and aggressive. His depressed mood and increased irritability placed him at risk of harm to himself and others in the workplace at the time of this assessment.”
Dr Bisht, 11 February 2021, determined Class 3 for employability, simply asserting, “Joseph can work part-time, in a different environment, and requiring different skillset” suggesting the capacity for “8 hours a day, 3 days a week.”
Mr Newman has not worked for more than two years. He had attempted to return to work in 2021 unsuccessfully; he became anxious during his induction day and failed to return the next. He then briefly relapsed into methamphetamine use. His symptoms of depression and anxiety remain moderately severe, and he has lost trust in others and self-confidence. He struggles to control his emotions and behaviours. He has reduced motivation and isolates himself, preferring not to leave home. He would not cope in a structured work environment. The MA has determined a Class 5 impairment in the employability, and I agree with that assessment for the reasons given.”
The Panel accepts the report of Dr Andrews as an accurate assessment of Mr Newman’s condition at the date of examination. The Panel also notes the recent reports of the treating psychiatrist, Dr Kalava, who recommended hospitalisation, noting that Mr Newman “continues to feel anxious, agitated, distressed, paranoid and generally unable to engage in self-care/study/work-related activities”.
The Panel accords substantially greater weight to the opinion of Dr Kalava in the light of the assessment of Dr Andrews. The opinions of the general practitioners and the psychologist, Ms Moylan, who respectively certify Mr Newman as having capacity to perform one or two days work per week are not supported by reasons and the Panel prefers the opinion of the treating psychiatrist, Dr Kalava, and that of Dr Andrews with respect to “employability”.
The Panel is accordingly satisfied that, at the date of examination by Dr Andrews,
Mr Newman is appropriately assessed as having no capacity for work due to his psychological symptoms of anxiety, agitation, distress and paranoia which combine to render him unable to engage in work-related activities. The symptoms described would prevent
Mr Newman from functioning in the workplace. Mr Newman is appropriately classified as Class 5 in respect of this area of function.The parties have not addressed submissions to the other areas of function but the appellant has relied upon a ground of appeal pursuant to section 327(3)(b) and has provided additional relevant information which, in the opinion of the Panel, requires that consideration be given to the assessment of each of the other areas of function.
The more recent material, and in particular the request for approval of treatment by the treating psychologist, Ms Moylan, and the assessment of Mr Newman’s condition provided by Dr Kalava, support the view of Dr Andrews in his report with respect to the areas of function, “self-care and personal hygiene”, and “travel” which are appropriately assessed as Class 2 and the areas of function, “social functioning” and “concentration persistence and pace” are appropriately assessed as Class 3. The reasons for those assessments set out by the Medical Assessor in the MAC are consistent with the findings of Dr Andrews upon examination and the more recent material.
The Panel notes that, upon re-examination, Dr Andrews assessed Mr Newman as falling within Class 3 with respect to the area of function “social and recreational activities”. The Medical Assessor, at the time of his examination in August 2021, assessed Mr Newman as falling within Class 2 with respect to that area of function. The Medical Assessor noted that Mr Newman had informed him that:
“he now had contact with his friends on a regular basis and that when the lockdown was over he hoped to be able to skateboard and ride motorcycles with them. Nevertheless he still remains somewhat withdrawn and avoidant. Class 2 is more appropriate.”
The Medical Assessor recorded his reasons for assessing Mr Newman as within Class 2 in the PIRS Table as follows:
“Whilst Mr Newman remains withdrawn he has begun to have more social contact with friends. He attends Narcotics Anonymous for support with his addiction but this also provides a social outlet for him. He also has some friends from Woolworths with whom he has started to keep contact. While he is currently restricted at the moment because of the lockdown when the lockdown is finished he states that his (sic – he) plans to ride his skateboard with his friends and also hopes to return to motor bike riding.”
Dr Andrews, at the examination on 2 March 2022, was told by Mr Newman that, before becoming unwell, he had enjoyed skateboarding, cycling, riding a dirt bike, going to the gym and had been socially active with family and friends. Dr Andrews noted that Mr Newman had since sold his dirt bike and, although he continued to own a mountain bike and skateboard, did not use them. Mr Newman stated that he rarely went out with family or sees friends. He was noted to spend most of his daylight hours in his bedroom.
Dr Andrews reported:
“Mr Newman remains socially withdrawn and has given up previously-enjoyed activities such as cycling, dirt bike riding and attending the gym. He rarely has social outings. Dr Blom [The Medical Assessor] cites his attendance at Narcotics Anonymous as a social outing and that he is ‘started to keep contact’ with ex-work colleagues from Woolworths. The MA also notes that he plans (my emphasis) to ride his skateboard and hopes to return to motor bike riding. Mr Newman has sold his motor bike and still owns a skateboard. The MA had determined a Class 2 rating for social and recreational activities, but this is more consistent with a Class 3.”
The class descriptors provided in Table 11.2 of the Guidelines relevantly provide:
“Class 2 – Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).
Class 3 – Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
In the light of the symptoms more recently recorded by Dr Kalava[7], it appears likely to the Panel that Mr Newman suffers a moderate degree of impairment in the area of function “social and recreational activities” and that, as a result, his planned resumption of certain activities post lockdown has not occurred. That lack of engagement is consistent with the symptoms of anxiety, depression and paranoia described by Dr Kalava.
[7] Report dated 15 February 2022
Mr Newman’s attendance at Narcotics Anonymous could not, in the opinion of the Panel, constitute social or recreational activity. The Panel accepts that the opinion of the treating psychiatrist, Dr Kalava, recommending hospitalisation, is consistent with the opinion of
Dr Andrews who reported:“His symptoms remain severe. He has frequent low moods with a reduced ability to experience positive emotions. He is irritable and prone to anger, tending to self-isolate to cope with this.”
The Panel is satisfied that it is appropriate to assess Mr Newman as falling within Class 3 in respect of this area of function.
For the reasons set out above, Mr Newman is assessed in accordance with the Guidelines as follows:
Self-care and personal hygiene – Class 2
Social and recreational activities – Class 3
Travel – Class 2
Social functioning – Class 3
Concentration, persistence and pace – Class 3
Employability – Class 5
The median score is three and the total is 18. Applying the conversion Table 11.7 of the Guidelines yields a measurement of permanent impairment of 22%.
The Panel considers that treatment of Mr Newman’s condition has not resulted in “apparent substantial or total elimination” of his impairment and no additional allowance is to be made pursuant to paragraph 1.31 of the Guidelines.
The Medical Assessor, Dr Baker and Dr Bisht agree with the assessment that a deduction of 1/10 is appropriate pursuant to section 323 the 1998 Act in respect of a psychological condition which pre-existed the commencement of Mr Newman’s employment with the respondent in 2015. The lack of contemporaneous medical evidence at that time makes it difficult to apply paragraph 11.10 of the Guidelines or to precisely assess the extent to which that condition contributes to the overall level of impairment assessed. The Panel is satisfied that a deduction of 1/10 in respect of the pre-existing condition as at the commencement of Mr Newman’s employment is not at odds with the evidence.
Accordingly, the level of impairment assessed as arising as a result of the subject psychological injury is 20% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 September 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Graham Blom and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in 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) |
| 1. Psychological | 20/02/19 (deemed) | Chapter 11, pages 60 – 68 | Not applicable | 22% | 1/10 | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
William Dalley
Member
Douglas Andrews
Medical Assessor
Nicholas Glozier
Medical Assessor
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