Yarnold v Peter Cush ATF Melville Trust
[2023] NSWPICMP 33
•3 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Yarnold v Peter Cush ATF Melville Trust [2023] NSWPICMP 33 |
| APPELLANT: | Melissa Jayne Yarnold |
| RESPONDENT: | Peter Cush ATF Melville Trust |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 3 February 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Assessment of permanent impairment from psychiatric injury; appellant contended Medical Assessor did not provide sufficient reasons for rating her impairment as mild for concentration, persistence and pace; Appeal Panel agreed; appellant re-examined; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 September 2022 Melissa Jayne Yarnold, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 August 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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 WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was employed as an office manager from 2002 by Peter Cush in his capacity as trustee of the Melville Trust, the respondent. As a consequence of matters that occurred between December 2019 and January 2020 in her employment, the appellant suffered a psychiatric injury.
The appellant’s solicitors referred the appellant to consultant psychiatrist Dr Christopher Canaris to report on various aspects of the appellant’s injury including the degree of permanent impairment she suffered from that injury. In a report dated 7 September 2021 Dr Canaris advised as an office manager from 2002 that he had assessed the degree of permanent impairment the appellant had from her injury was 15% whole person impairment (WPI).
Relying on that report, the appellant’s solicitors wrote to the respondent on 30 September 2021 to advise him that the appellant claimed compensation from him in the amount of $36,000 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 15% WPI resulting from her injury. The appellant’s solicitors enclosed several documents with their letter to support the appellant’s claim, including Dr Canaris’ report.
The respondent’s solicitors thereupon arranged for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht on 19 January 2022. In a report dated 15 March 2022 Dr Bisht advised the respondent’s solicitors that he had assessed the appellant had 6% WPI resulting from her injury. On 18 March 2022 the respondent’s insurer wrote to the appellant, care of her solicitors, and notified her, under s 78 of the 1998 Act, that it was “disputing your claim for compensation”. It provided her with a copy of Dr Bisht’s report of 15 March 2022. It advised her that “based on Dr Bisht’s assessment you do not satisfy the 15% WPI threshold provided by s65A(3) of the 1987 Act”. The Appeal Panel observes that s 65A(3) of the 1987 Act requires that the degree of permanent impairment resulting from a primary psychiatric injury be at least 15% in order that a worker be entitled to compensation for permanent impairment from that injury under s 66 of the 1987 Act.
On 7 June 2022 the respondent’s insurer again wrote to the appellant. It is apparent from that letter that the appellant’s solicitors had earlier requested the insurer to have Dr Bisht provide a further report to clarify various elements of his assessment of the appellant’s WPI. The evidence or other communication by which the appellant’s solicitors did that is not before the Appeal Panel. Further the correspondence by which the respondent, the insurer or its solicitors requested Dr Bisht to review his report is also not in evidence. It seems the clarification related to how Dr Bisht had computed the medium of his ratings for the several permanent impairment rating scale (PIRS) categories by which he had assessed the appellant’s WPI. In his initial report he had erroneously computed that to be 2, whereas in his further report he corrected that to 3.
In its letter of 7June 2022 to the appellant, the insurer attached the further report of Dr Bisht dated 13 April 2022. In that, Dr Bisht advised that he did not vary his assessment of the appellant’s overall permanent impairment from her injury. The insurer in its letter of 7 June 2022 advised the appellant that it still disputed she had an entitlement to compensation under s66 of the 1987 Act for permanent impairment from her injury.
Thereupon the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her disputed claim for compensation for permanent impairment from her injury and also a disputed claim for weekly payments of compensation and compensation for the cost of treatment. The matter was referred to member Mr Richard Perrignon who, with the consent of the parties, made orders on 15 June 2022 disposing of the appellant’s claim for weekly payments of compensation and compensation for medical related expenses and made a direction remitting the appellant’s claim for compensation for permanent impairment to the President of the Commission so that it could be referred to a Medical Assessor.
A delegate of the President duly issued that referral on 16 June 2022. The Medical Assessor examined the appellant on 28 July 2022 in response to that referral and, as mentioned above, on 18 August 2022 issued the MAC. In that he certified that he had assessed the appellant had 8% WPI from her injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel considered, for reasons explained below, the MAC contained a demonstrable error and the Appeal Panel would need to examine the appellant so as to be able to correct that error. The Appeal Panel appointed Professor Nicholas Glozier to conduct that examination. His report to the Appeal Panel on his examination is extracted below.
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. It has also taken into account Professor Glozier’s report.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal against the MAC relates to the Medical Assessor’s rating of her impairment in the PIRS category of concentration, persistence and pace, in which the Medical Assessor rated her impairment as Class 2, that is a mild impairment.
Relevant to that, the Medical Assessor obtained a history from the appellant that she struggles with concentration and that her mind is wandering everywhere. The Medical Assessor noted that the appellant said that she would occasionally feel overwhelmed if she was outside at work or in a shopping area. He noted that the appellant struggles to have a conversation if there are two or more people.
The Medical Assessor recorded that he observed from his mental state examination of the appellant that she was anxious from the start of the interview but her speech was spontaneous and normal in prosody. The Medical Assessor recorded that the appellant presented with a mix of anxious and dysphoric affect and with restricted affective range and reactivity. He recorded that the appellant continues to ruminate about past work issues and the effect of her mental health and general functioning. He recorded that the appellant continues to experience depressive cognition, including thoughts of hopelessness, helplessness and worthlessness. The Medical Assessor recorded that he was not able to elicit thought disorder, perceptual disturbances, persecutory ideation or any other forms of psychotic symptoms.
The Medical Assessor referred to various pieces of the evidence before him, including a statements of the appellant dated 11 June 2020 and 12 May 2022, the report of Dr Bisht dated 15 March 2022 and the report of Dr Canaris dated 7 September 2021. The Medical Assessor made very brief comments relating to that evidence. With respect to the issues the appellant raised in her Appeal against the MAC, the Medical Assessor’s commentary on the reports of Dr Bisht and Dr Canaris was limited to their respective diagnoses of the appellant and their respective assessments of the appellant’s WPI.
The Medical Assessor said that the appellant’s presentation between 2020 and 2022 indicated that she experienced fluctuation of her mental health and that she continued to struggle with a mix of anxiety and depressive symptoms.
In the PIRS Rating Form attached to the MAC the Medical Assessor set out how he had rated the appellant’s impairment in the several PIRS categories and provided brief reasons for his ratings. As mentioned, his rating for the appellant’s impairment in the Category of Concentration, Persistence and Pace was Class 2. The reasons he provided for that rating were as follows:
“Ms Yarnold told me that she struggles with her concentration ‘I can sit maximum for 20 min in any movie. My mind is wandering around’. She told me that she is struggling with recall/short term memory. She told me that she does not want take up any learning task”. ‘I feel dull’”.
Neither the appellant in her appeal against the MAC nor the respondent in its Reply to the appellant’s appeal raise any issue with respect to the Medical Assessor’s assessment of the appellant’s impairment in the other PIRS categories, or the Medical Assessor not making any deduction under s 323 of the 1998 Act for any proportion of the appellant’s impairment due to her pre-existing condition she had, or the Medical Assessor adding 1% WPI pursuant to [1.32] of the Guidelines.
For completeness however the Appeal Panel observes that the Medical Assessor found that the appellant did have a pre-existing psychological condition but did not make any deduction under s 323 because the appellant had been stable on anti-depressant medication for around 16 years with nil adverse effects on her job or general functioning. The Medical Assessor also scored the appellant’s impairment in the category of Self Care and Personal Hygiene as Class 2, her impairment in Social and Recreational Activities as Class 3, her impairment in Travel as Class 2, her impairment in Social Functioning as Class 2, and her impairment in Employability as Class 3. The medium of those scores and score for the appellant’s impairment in Concentration, Persistence and Pace was 2. The aggregate was 14. That correlated with a WPI of 7%. As said, the Medical Assessor added 1% WPI to that pursuant to [1.32] of the Guidelines on account of “the positive clinical response to psychotropic treatment trial and psychological input”, the inference from that being that the Medical Assessor considered that if the treatment the appellant was having was withdrawn the appellant’s impairment would revert to 7% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor “failed to disclose a path of reasoning for disagreeing with the opinion” of Dr Canaris and of Dr Bisht, whom the Appeal Panel observes each rated the appellant’s impairment in the category of Concentration, Persistence and Pace as Class 3.
The appellant submitted that the Medical Assessor failed to have regard to both the lay and medical evidence that she struggled to watch TV and is forgetful and experiences difficulty following complex instructions. The appellant submitted, relying on Lederer v Insurance Australia Ltd T/as NRMA InsuranceACN 000016722[1], the Medical Assessor was required to engage with this evidence and give reasons why he rejected Dr Canaris’ opinion.
[1] [2022] NSWSC 322 (Lederer).
The appellant submitted that the Medical Assessor did not address any of the descriptors provided within Table 11.5 of [11.12] of the Guidelines. The appellant submitted, in substance, that the lay and medical evidence before the Medical Assessor provided a history that indicated she has significant difficulty concentrating. The appellant submitted that had the Medical Assessor considered the examples within Table 11.5 he would have found that she had a moderate impairment with concentration, persistence and pace.
In reply, the respondent submitted that Lederer had no application to the matter before the Appeal Panel. The respondent submitted that the Medical Assessor applied the Guidelines, specifically PIRS, to assess the appellant’s impairment from her injury. The respondent submitted that the Medical Assessor therefore used the correct criteria to assess the appellant’s impairment.
The respondent noted that in Dr Bisht’s latest report he rated the appellant’s impairment as Class 2 for Concentration, Persistence and Pace. The respondent submitted that the Medical Assessor was required to undertake a clinical examination of the appellant as she presented before the Medical Assessor and to take into account the relevant history and medical evidence. The respondent submitted to the effect that the Medical Assessor had done that.
The respondent submitted that the Medical Assessor was entitled to give primacy to his observations of the appellant rather than the historical clinical material that was available to the Medical Assessor. The respondent submitted that the appellant was, in effect, contending that the Medical Assessor made a demonstrable error on the basis that the Medical Assessor ought to have completely disregarded his findings from his assessment of the appellant on the day he conducted the examination in favour of findings of other assessors that pre-dated the examination.
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.
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to explain his or her opinion by revealing the actual path of reasoning by which he or she arrived at that opinion in sufficient detail such that Appeal Panel can ascertain whether there is any error in the Medical Assessor’s reasoning.[2] The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an opinion or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[3]
[2] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[3] Campbelltown City Counsel v Vegan [2006] NSWCA 284, 67 NSWLR 372; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
The obligation of a Medical Assessor does not require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other medical examiners.[4] Nor does it require the Medical Assessor to sit as a decision maker choosing between competing medical opinions put forward by the parties.[5]
[4] Wingfoot at [56].
[5] Kaur at [26].
Lederer is not inconsistent with those principles. Lederer involved different legislation and related to a situation in which a Medical Assessor was required to determine whether a specific event caused a “degenerative cascade” of the plaintiff’s cervical spine. Brereton JA held in that case that the Medical Assessor had not responded to an argument the plaintiff had put to the Medical Assessor with respect to that issue. The court held that the Medical Assessor was required to show how he had considered the issue. The case is not authority for the proposition that a Medical Assessor is required to explain, in a circumstance where he or she is assessing a worker’s permanent impairment in accordance with s 322 of the 1998 Act, why his or her opinion differs from the assessment another examiner has made. Again, the Medical Assessor is only required to reveal in sufficient detail the path by which he or she arrived at his or her opinion.
That said however, the Appeal Panel considers that in the reasons the Medical Assessor provided in the table attached to the MAC, the Medical Assessor did not sufficiently explain why he rated the appellant’s impairment in the category of Concentration, Persistence and Pace as being mild. In the Appeal Panel’s view, even when the MAC is read as a whole, it is not clear to the Appeal Panel how it is that the Medical Assessor could conclude that the appellant’s impairment in this category is mild. The reasons he provided do not square up with the history he obtained. The examples he did provide within the table, being that the appellant can sit for a maximum of 20 minutes in a movie, that her mind wanders and that she does not want to take up any learning tasks because she feels dull, do not substantiate that the appellant’s impairment is mild.
Because of that, the Appeal Panel considered that the MAC contains a demonstrable error. As mentioned above, in order for the Appeal Panel to correct that error it considered it would need one of its expert members to examine the appellant and the Appeal Panel appointed Professor Glozier to do that. Professor Glozier’s report to the Appeal Panel on his examination is extracted below. The Appeal Panel considers his examination was thorough and it adopts his findings. Having adopted his findings, the Appeal Panel also adopts his conclusion that the appellant’s impairment in the category of Concentration, Persistence and Pace is moderate.
Noting that there was no challenge to, firstly, the Medical Assessor’s ratings of the appellant’s impairment in the other PIRS categories, secondly, the Medical Assessor not making a deduction under s 323, the Appeal Panel, and to the Medical Assessor adding 1% WPI under [1.32] of the Guidelines the Appeal Panel, therefore assesses the appellant’s permanent impairment from her injury to be 16% WPI.
For completeness, the Appeal Panel notes that following the Appeal Panel receiving the report of Professor Glozier the Appeal Panel conducted a further review of the original MAC. On that occasion the Appeal Panel considered that potentially an issue arose, based on Professor Glozier’s findings, which the Appeal Panel adopted, that potentially it might need to consider in order for it to determine the Appeal, in regards to which neither party had made submissions. The Appeal Panel consequently called for submissions from the parties regarding that issue which was as follows:
“In the event that the Appeal Panel:
a) found that the Medical Assessment Certificate contains a demonstrable error with respect to the Medical Assessor’s rating of the appellant’s impairment in the PIRS category of concentration, persistence and pace, and
b) assessed the appellant’s impairment in the PIRS category of concentration, persistence and pace as being moderate, that is Class 3, so as to correct that error, which would result in the appellant’s permanent impairment being assessed as 15% whole person impairment, noting the Medical Assessor’s assessment of the appellant’s impairment in the other PIRS Categories were not challenged by either party,
is the Appeal Panel then able to find that the appellant’s long term treatment of her injury has not resulted in apparent substantial or total elimination of the appellant’s permanent impairment and [1.32] of the NSW Workers Compensation Guidelines for the evaluation of permanent impairment, fourth ed 1 April 2016 has no application.”
The Appeal Panel considered that potentially this arose as an issue as a consequence of Professor Glozier’s examination of the appellant revealing that her total permanent impairment was of the order of 15% WPI. The Appeal Panel considered that the appellant’s long term treatment had not resulted in apparent substantial or total elimination of that permanent impairment. The Medical Assessor had incorrectly assessed the appellant’s permanent impairment to be 7% WPI. In a circumstance where the appellant’s permanent impairment was only 7% WPI then potentially a conclusion was open that her long term treatment had resulted in an apparent substantial total elimination of her permanent impairment. Hence, the issue of whether [1.32] of the Guidelines was correctly engaged really only arose after a correct assessment had been made of the appellant’s WPI.
The appellant in response to the Appeal Panel’s invitation for further submissions submitted, in substance, that the Appeal Panel could not alter the Medical Assessor’s finding that 1% WPI was to be added under [1.32] of the Guidelines, and this was because that was not an issue that had been raised in any of the grounds of appeal on which she had appealed.
The respondent submitted that the Appeal Panel was not restricted to reviewing those aspects of the MAC that were appealed. The responded referred to Siddick v WorkCover Authority of NSW[6] and Gardner John v Rail Corporation NSW.[7] The respondent submitted that the appellant’s treatment had not resulted in apparent substantial elimination of the appellant’s permanent impairment. The respondent submitted that it was open therefore for the Appeal Panel not ot add 1% WPI under [1.32].
[6] [2008] NSWCA 116.
[7] [2013] NSWSC 649.
The authorities on which the respondent relied predate an amendment to s328(2) of the 1998 Act which stipulates that an appeal is limited to the grounds of appeal on which the appeal is made. The Court of Appeal in Queanbeyan Racing Club Ltd v Burton[8] has held that under the currently enacted s 328(2) it is impermissible for an Appeal Panel to look for errors which are not part of the grounds of appeal on which the appeal is made. Consequently, although the Appeal Panel considers that [1.32] of the Guidelines is not engaged in the appellant’s circumstances, given that that was not an issue that either party raised in their respective application to appeal and reply, the Appeal Panel is unable to correct that error.
[8] [2021] NSWCA 304 at [26]-[35].
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W2978/22 |
Appellant: | Melissa Yarnold |
Respondent: | Peter Cush ATM Melville Trust |
Date of Determination: | 4 January 2023 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 21 December 2022 |
1. The worker’s medical history, where it differs from previous records
Ms Yarnold reported little significant change since seeing the AMS. She continues to be treated regularly by her psychologist although the frequency has now decreased to fortnightly. She describes relaxation, Acceptance & Commitment Therapy, and challenging the occasional thoughts of her employer. They have discussed ending the treatment as she feels as though she is at the end of her treatment gains. She takes two medications for hypertension: Inderal and Prexum, Lipitor for familial hypercholesterolaemia, and 45mg Mirtazapine approximately 30 minutes before bedtime. She drinks no alcohol, smokes 20 cigarettes a day and does not use any illicit drugs or medicinal cannabinoids.
2. Additional history since the original Medical Assessment Certificate was performed
She continues to live with her partner Steve, whom she has been with for approximately 25 years. They live on acreage near Tallong, with horses, a pet cow and dogs, but no children. She still rides on her property and occasionally in the local national park but less frequently than previously. As noted by the MA, Steve stopped being a welder and established a property maintenance business that Ms Yarnold helps with. She says she restricts herself to her 16 hours a week as she feels overly fatigued by any cognitive demands beyond this although the exact pattern of hours and days will vary. She said that because of living rurally, they may have to work weekends or odd times during the week. At times she may even work a full day although feels fatigued afterwards. There is little work routine as a result. Although she used to be a senior manager, dealing with lots of people and demanding tasks,, she finds that she loses the thread of conversations, particularly if questioned. As a result she avoids new customers as she is out of her comfort zone and cannot handle any queries, even though many of them relate to timber which she has great experience in. She finds conversations demanding even outside of work, often needing a nap after any lengthy conversation, and finds herself forgetting what people say if there is more than one person as she cannot keep focusing on two different people. This appears to be cognitive than anxiety-driven as although she is slightly apprehensive on the way to meet new clients or see people, she does not describe a pervasive anxiety or anticipatory physical arousal. She also finds it hard to keep up with the television programmes they watch in the evening. She reported she is trying to watch The Last Kingdom with Steve but cannot focus on even one episode at a time, is frequently distracted and asks him questions which can lead to difficulties as she cannot find herself following the plot. She has withdrawn from much of her Facebook and other social media including a horse Facebook page she used to watch. She now rarely reads because she cannot focus for long, and scrolls through Facebook for her news, again in a distracted fashion. She finds her mind wandering when trying to focus on cognitively-demanding tasks, which further undermines her confidence.
With treatment she finds she is better able to get to sleep now, although still goes to bed early, around 9-9:30pm. She lies there ruminating until about 11:30pm, about life and also her experiences. She gets up around 5:30-5:45pm with rare nocturnal arousals, gaining a probable normal sleep duration, if somewhat inefficient due to her early bedtimes.
After she wakes in the morning, she may tidy up, do some gardening, grocery shop and household chores, depending upon how much work she has to do. She no longer shows or prepares her horses, and rides less as she is somewhat demotivated and life is ‘a bit flat.’ She continues to worry about the finances as they are poorer than they used to be, although not in poverty. She is close to her mother who lives in Mittagong and sees her weekly, generally for lunch. Her father passed in February 2020 and she has recovered from the temporary grief. She continues to be in contact with her younger brother and they had a family event the week before I saw them as the pre-Christmas period is busy. She was able to go to lunch with Steve and the family in Bowral and enjoyed this.
3. Findings on clinical examination
Ms Yarnold was casually-dressed, wearing glasses and not overly apprehensive although reported herself to be somewhat anxious. During the hour-long assessment she showed a loss of the determining tendency of her thought, and at times some failure of concentration. She describes her moods as being ‘grumpy and flat’ with no pervasive misery, although is more tearful than previously. She is not anhedonic but has reduced enjoyment, mainly through lack of motivation, as she feels ‘in limbo.’ She did not describe a pervasive generalised anxiety and worry about many day-to-day activities out of proportion to actual stressor, with few episodes of significant arousal and no recent panics. She has a number of negative cognitions with reduced confidence and self-esteem but the intrusive thoughts and prior nightmares regarding her workplace have substantially reduced. When driving she finds her mind wanders and she pulls up with a jolt as she has lost track of some time but has not had any actual panics on the motorway. There were no psychotic phenomena.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Ms Yarnold continues to have anxious, depressive and cognitive features that would meet the criteria for a Pervasive Depressive Disorder or a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Although there is some anxious component to this, she no longer meets the criteria for a Generalised Anxiety Disorder and does not have either the Criterion A events or sufficient symptoms of an adequate severity in the domains required for Post-Traumatic Stress Disorder. I note the Appeal focuses only on one category, that of Concentration, Persistence and Pace. The MA noted that she ruminates, worries and struggles with concentration as ‘my mind is wandering everywhere.’ She feels overwhelmed at times and struggles to concentrate for long: ‘I struggle to have a conversation if there are two more people.’ In his mental state examination he noted she was anxious and distressed but he made no specific comment on either the presence or absence of any cognitive dysfunction objectively. The MA has not made any specific comments as to why he agrees or disagrees with any of the other medical opinions, either treating, IME or the cognitive aspects within Ms Yarnold’s statement dated 12 May 2022 which are consistent with those elicited today.
Given that she can only focus on conversations with one person and for a limited period of time, reports ‘losing the plot’ of not particularly cognitively-demanding Netflix shows, and being unable to undertake cognitive tasks in subject areas where she previously was highly competent, e.g. timber products and quoting, as well as the objective deficits in concentrating and persisting with the focus of the assessment today, Ms Yarnold is moderately impaired in the category of Concentration, Persistence and Pace.
Signed: Professor Nicholas Glozier
Date: 4 January 2023”
For these reasons, the Appeal Panel has determined that the MAC issued on 18 August 2022 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
Matter Number: | W2978/22 |
Applicant: | Melissa Jayne Yarnold |
Respondent: | Peter Cush ATF Melville Trust |
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 Aman Suman 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 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) |
| Psychological injury | 08/01/2020 | Par 1.32 and Ch 11 | 16% | - | 16% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0
9
0