Yumul v Scottish Pacific Business Finance
[2023] NSWPICMP 147
•17 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Yumul v Scottish Pacific Business Finance [2023] NSWPICMP 147 |
| APPELLANT: | Roanne Yumul |
| RESPONDENT: | Scottish Pacific Business Finance |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 17 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Worker’s appeal against a determination by a Medical Assessor (MA) that she suffered 1% WPI as a result of an accepted psychological injury; MA performed and relied upon psychometric testing to support his view that the worker was feigning or exaggerating her psychological symptoms; worker alleged that as there was no forewarning of the psychometric testing she had been denied procedural fairness and that MA had erroneously assessed each of the psychiatric impairment rating scale (PIRS) categories; Queanbeyan Racing Club Ltd v Burton and Maricic v The Registrar, Workers Compensation Commission considered; Held – as the MA had rejected the worker’s case on a basis not previously raised or addressed in the evidence, he was obliged to provide her with an opportunity to deal with it; as the results of the psychometric testing were not recorded in the Medical Assessment Certificate (MAC) and as the MA’s description of the results appeared equivocal the Appeal Panel were unable to ascertain the actual path of his reasoning; MAC revoked and, after re-examination of the worker, new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 November 2022, Roanne Yumul 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 (MA), who issued a Medical Assessment Certificate (MAC) on 1 November 2022.
Roanne Yumul (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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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 was employed by Scottish Pacific Business Finance (the respondent) as a collection officer from August 2017. Her duties involved liaising with debtors and collecting payments from them.
During her employment, the appellant perceived that she was bullied by a female employee. Subsequently, she perceived that she was bullied and sexually harassed by her manager. She reports that a number of her colleagues made personal comments and complaints in respect of her conduct. Ultimately, she reports that she was “micro-managed and sat by herself and was isolated”.
On 2 March 2019, she commenced treatment with a psychologist, Theodora Huggins, under the respondent’s Employees Assistance Program. On 21 April 2019, she consulted Dr Ramanathan at the Chatswood Medical Centre and was certified unfit for work on 23 and 24 April 2019. After consulting several other medical practitioners in the second half of 2019, the appellant saw Dr Andrew Lin at the Hyde Park Medical Centre on 25 September 2019. Dr Lin certified the appellant as unfit for work from 25 September to 9 October 2019. He also referred her to Louise Morrow, a psychologist. The appellant has not returned to work.
On 27 November 2019, the appellant saw Dr Patrick Toohey, a psychiatrist, on referral from Dr Lin. He found no obvious signs of anxiety or depression during the assessment but noted that she:
“described becoming significantly anxious and worried about the work incident and this is accompanied by somatic symptoms”
Dr Toohey thought that the nearest diagnosis was Adjustment Disorder with anxiety and depression. He recommended Lexapro 20mg to help in lowering her autonomic arousal. He suggested “workplace clarification and reconciliation.”
On 13 November 2019, the appellant saw Dr Graham George, a psychiatrist, at the request of the respondent’s insurer. He diagnosed the appellant as suffering from an Adjustment Disorder with anxious mood. He thought that she was taking the appropriate psychotropic medication. He expressed the opinion that the workplace appeared to have been the cause of her psychiatric condition. He expressed the opinion that her prognosis was favourable and that she could commence a graduated return to work plan.
In 2020, Dr Lin referred the appellant to Dr Sian Ong, a consulting psychiatrist. He treated her with Reboxetine.
On 29 June 2020, the appellant saw Dr Assad Saboor, a psychiatrist, at the request of the respondent’s insurer. He recorded that the appellant was experiencing delusions of reference and auditory hallucinations. He recommended that the appellant be started on anti-psychotic medication and be admitted to a private psychiatric hospital for stabilisation of her mental state. He opined that she was “very unwell” and that it was inappropriate to express an opinion on the likelihood of her return to work until her condition had stabilised
On 9 July 2020, the appellant saw Dr Richa Rastogi, a psychiatrist at the request of her solicitors. She diagnosed a generalised Anxiety Disorder with Panic Disorder and Agoraphobia and an Adjustment Disorder with Depressed Mood. She expressed the opinion that the appellant was fit to work in suitable duties “in step down role with rehabilitation.” The doctor thought that with ongoing support her prognosis was good. She assessed 23% whole person impairment (WPI) in accordance with the Psychiatric Impairment Rating Scale (PIRS).
On 28 August 2020, the appellant was admitted to the Northside Clinic under Dr Ong. The discharge summary of the clinic describes the principal diagnoses as:
“Acute paranoid psychosis;
Depression ‘apparently since workplace harassment;’
Trauma syndrome.”
The notes record that the appellant reported psychotic symptoms including a delusional belief of cameras being installed in the ward and people watching her by pretending to be patients and staff. She was treated with Risperidone.
On 30 September 2020, Dr George saw the appellant for a medico-legal review. Dr George recorded that the appellant reported delusional ideas of “being followed and watched” and that auditory hallucinations would govern her actions. She also reported ideas of reference “whereby she believed people were talking about her when she passed them.” She stated that she had experienced these voices during her employment and at the time of her initial consultation with the doctor. Dr George diagnosed paranoid schizophrenia. He stated that the diagnosis of Dr Saboor of “depression with psychotic symptoms” was an alternative explanation. He stated that this was a “serious mental illness “which required continuing treatment with risperidone to bring about a “complete remission of symptoms.”
The difference of opinion between Dr Rastogi and Dr George as to whether the appellant had reached maximum medical improvement (MMI), with Dr George not determining impairment, gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the Registrar of the former Workers Compensation Commission referred the matter to an MA (formerly an Approved Medical Specialist (AMS)) to determine the dispute as to WPI resulting from the accepted psychological injury.
On 28 January 2021, Dr Morris, an MA, found that the appellant worker suffered from a Major Depressive Disorder with Melancholic Features and Mood-Congruent Psychotic Features. He certified that the appellant had not reached MMI and her WPI was not fully ascertainable. He observed that the appellant’s treatment regime had only recently been modified and that assessment should be deferred in order to ascertain whether it improved her psychological condition.
Dr Morris saw the appellant on a second occasion and issued a further MAC dated 8 December 2021. He confirmed his earlier diagnosis. He noted that the appellant was attending a depression management group program on a weekly basis at Northside Clinic Private Hospital. He also recorded that Dr Ong, her treating psychiatrist was considering electro-convulsive therapy (ECT), if she did not respond to her current medication. As Dr Morris considered that the appellant’s psychological condition might respond to ECT, he again certified that she had not reached MMI and suggested a further medical assessment in six months.
As Dr Morris ceased to be an MA, on 13 September 2022, a delegate of the President referred the assessment to another MA, Dr Yu-Tang Shen. On 24 October 2022, Dr Shen issued a MAC by which he certified that the appellant suffered 1% WPI as a result of her psychological injury. It is from that MAC that the appellant brings this appeal.
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.
As a result of that preliminary review, the Appeal Panel determined that as there was error in the MAC the worker should be re-examined by a specialist member of the Appeal Panel. The Panel’s reasons for finding error are set out below under the heading Findings and Reasons.
EVIDENCE
The Appeal Panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
The MAC
The parts of the MAC given by the MA which are relevant to the appeal are set out in the body of this decision
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the Appeal Panel.
In summary, the appellant submitted that three were three broad errors in the MAC. First, the MA’s undertaking of and reliance on cognitive testing (RBANS) and performance validity testing (SIRS-2) in assessing WPI constituted a denial of procedural fairness. She submitted:
“Medical Assessor Shen relied on performance validity testing that he undertook but he did not disclose the test or the results to the Appellant Worker (or indeed to the respondent employer) to enable the Appellant Worker to obtain a medical opinion of the test and the results and to make submissions in relation to them. The test results have not been disclosed for scrutiny and the conditions under which the test were applied are also unknown. This is new evidence ought to have been made available to the Appellant Worker and her legal representatives.
There was no indication that such tests were to be applied and no indication in any of the medical evidence that was before the MA that they were necessary or desirable – not even from Dr George or Dr Saboor, the medical specialists qualified for the respondent employer.”
In support of her submission the appellant relied on the reasoning of Button J in Pascoe v Mechita Pty Ltd[1] where his Honour held that the introduction of “important, new, disputable material” at an assessment that was significant or determinative of the outcome constituted a denial of procedural fairness.
[1] [2019] NSWSC 454.
The appellant argued that she had not been given an opportunity to be heard in respect of the results of the cognitive or performance validity testing. She continued:
“The Medical Assessor has an obligation to provide the Appellant Worker and the Respondent Employer ‘with notice to confront the adverse material, and an obligation to provide an opportunity to respond before taking into account the material.’”
She also referred to Kinchela v Insurance Australia Group t/as NRMA Insurance[2], Minister for Immigration and Citizenship v Szgur[3], and Commissioner for ACT Revenue v Alphaone[4].
[2] [2021] NSWSC 804, [34]-[35].
[3] (2011) 241 CLR 594.
[4] (1994) 49 FCR 576.
The appellant also argued that no other medical practitioner, including the two psychiatrists qualified by the respondent and the previous MA, who had consulted with the appellant on two occasions, had suggested exaggeration or feigning. They had not suggested the need for cognitive testing or performance validity tests to assist in making a diagnosis. On the contrary, each had found that the appellant was suffering from “a serious mental illness as a result of her employment.”
Secondly, the appellant alleged that the MA exceeded jurisdiction. He referred repeatedly to the statements contained in the factual investigation undertaken by Procare stating that there was no substantiation of the appellant’s allegations by other witnesses. The appellant asserts that these matters go to the question of injury and not to the assessment of “permanent impairment resulting from injury.” They were, therefore, irrelevant considerations to the issue before the MA.
Thirdly, the appellant argued that the MA had erroneously assessed each of the PIRS categories. He had assessed each category on the basis that she was “likely amplifying or exaggerating her symptoms.” The assignment of classes was also “infected by the other two errors made by the Medical Assessor.”
In view of these errors, the appellant sought a re-examination by a member of the panel.
In respect of the procedural fairness issue, the respondent submitted that it was unnecessary for the MA to disclose to the appellant the results of the cognitive and validity testing undertaken at the medical assessment. It relied upon the reasoning in the Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors[5] and Maricic v The Registrar, Workers Compensation Commission[6]. It was unnecessary for the MA to disclose material where its source is information furnished by the worker. It continued:
“The Respondent submits that the Appellant provided the history and information on which the Medical Assessor relied on in performing the cognitive and validity tests. The respondent submits that the appellant was not denied procedural fairness due to the Medical Assessor not disclosing the cognitive and validity tests to her (Brockmann and Maricic).”
[5] [2006] NSWSC 235.
[6] [2011] NSWCA 42.
On the issue of excess of jurisdiction, the respondent argued that there was no basis for the appellant’s contention that the MA had concluded worker had not suffered a psychiatric or psychological injury. On the contrary, he had diagnosed the appellant with an Adjustment Disorder as a result of the injury. Further, the documents which the appellant maintained duly influenced the MA were put into evidence by her.
Generally, the respondent argued that the MA carried out his task in accordance with the SIRA Guidelines. While he considered the opinions of other medical practitioners, he formed his own opinion as to the appellant’s impairment at the time of his examination. He provided a detailed analysis of his assessment of the appellant and disclosed his reasoning in the PIRS rating form.
Medical examination
Douglas Andrews of the Appeal Panel conducted an examination of the appellant on 10 March 2023 and reported to the Appeal Panel. To the extent that it is relevant, his report is as follows:
“1. The worker's medical history where it differs from previous records
The history given by Ms Yumul today was consistent with previous records.
2. Additional history since the original Medical Assessment Certificate was performed
I had Ms Yumul describe any changes to her condition and treatment since the examination by the MA on 24 October 2022. Other aspects of her history remained relatively unchanged.
Ms Yumul lives with her mother and four cats at Willow Creek. Her mother came from the Philippines about 18 months ago to care for and assist Ms Yumul. She no longer has flatmate.
She remains on the same medication regimen: desvenlafaxine (Pristiq) 200 mg daily and lurasidone (Latuda) 160 mg daily.
She sees her psychiatrist, Dr Sian Ong, monthly and her psychologist, Ms Louise Morrow, every two weeks. She attends a day program at Northside Clinic weekly.
Since receiving the MA's report, she has been more distressed because of the accusation of feigning her condition. She said, ‘who wants to feign this kind of suffering?’
Current symptoms:
Ms Yumul's mood is pervasively low without diurnal variation. She takes some pleasure in interacting with her cats but otherwise has anhedonia.
She is anxious, with prominent concerns about her future and financial situation. She fears that her ex-employer is still pursuing or stalking her. She worries that there may be other people who wish to harm her.
She describes mood-congruent auditory hallucinations. There is a single distorted voice, external to her, that states that she is ‘not good enough… Life is not worth living… Friends hate you’ and suggests that she should kill herself. She also describes referential messages from the radio and television along similar lines; these are sufficiently distressing that she no longer uses the radio or television.
She has subjective difficulties with concentration, attention and memory. Her memory has worsened since her electroconvulsive therapy (ECT) in June 2022. Unfortunately, the ECT was unsuccessful in relieving her symptoms.
Her sleep is impaired; she often goes to bed in the early morning hours and sleeps fitfully. During the night, she is bothered by anxious ruminations.
Her appetite is reduced; she estimates she has lost 4 kg since June 2022. At 72 kg and 166 cm, her BMI is 26.1, in the overweight range.
She has ‘no libido.’
Diagnosis:
·major depressive disorder (chronic) with melancholic features and psychosis
Her condition is chronic, stable and has reached maximum medical improvement.
Permanent impairment ratings:
Self-care and personal hygiene – Class 3
Ms Yumul is highly dependent on her mother, who has migrated from the Philippines to care for her. Her mother does all of the housework, shopping and cooking. Ms Yumul eats a poor-quality diet, often misses meals, and has lost 4 kg in weight since June 2022. She brushes her teeth about once a week and showers 2-3 times a week, usually after criticism and prompting from her mother. She would struggle to live independently.
Social and recreational activities – Class 4
Before becoming unwell, she attended church regularly and had a wide circle of friends. She went to the gym and yoga classes most days. She enjoyed social outings with friends, enjoying dinners and visiting each other's homes.
She no longer has social outings and has given up attending church, the gym and yoga classes. She has three friends who contact her on social media, but she does not initiate contact. She no longer visits friends or has them see her at home.
Travel – Class 2
Ms Young visited the Philippines to see her family in 2020 after the onset of her illness. However, her condition has deteriorated since then, and no further trips have occurred. She no longer drives her car but will use Uber if she has to go out. For example, she travels this way when she visits the Northside Clinic, a 40-minute trip, weekly. She and her mother also took an Uber to Parramatta recently, also a 40-minute trip, to pick up a kitten.
Social functioning – Class 3
Ms Yumul's primary relationship is with her mother. There is a strain in this relationship, and Ms Yumul said, ‘she doesn't understand me; we always fight, and she is easily upset; she hates that I'm always on my bed; it is difficult to live with her, but I want her here.’
She is estranged from her father after a falling out last year when he asked for money. She has a brother and half-brother in the Philippines but doesn't speak to them directly; she keeps in touch with their lives because of her mother.
She broke up with her boyfriend six weeks ago. This relationship was conducted over distance as he lives in Thailand. They had met on-line during the COVID pandemic lockdown and he lived in Perth. In 2020, he moved to Thailand. They didn’t have in-person contact during their relationship. She felt that he was drifting away from her, and she ended the friendship.
Concentration, persistence and pace – Class 3
Ms Yumul skims through social media on her smartphone. She has never been interested in reading. She sometimes watches videos on YouTube about self-help or mental illness. She doesn't watch television or listen to the radio because of the referential ideas. She has no hobbies or projects. She has subjective problems with concentration and memory, and during my interview, she showed signs of distraction and needed redirection.
Employability – Class 5
Ms Yumul has severe symptoms of mental illness with significant global impairment. She has continuing psychotic symptoms that make it difficult for her to trust others. For these reasons, I consider her unfit to work.
The total score is 20, with a median of 3; the WPI is 26%.
Comments on reports:
Treating psychologist Ms Theodora Huggins described seeing Ms Yumul over an extended period for ‘stress and anxiety.’
Treating psychiatrist Dr Patrick Toohey, 27 November 2019, described symptoms of low dysphoria and diagnosed an ‘adjustment disorder with anxiety and depression symptoms.’
IME psychiatrist Dr Graham George, 13 November 2019, diagnosed an ‘adjustment disorder with anxious mood.’ However, on 6 October 2020, Dr George elicited paranoid delusions and auditory hallucinations symptoms and changed his diagnosis to ‘paranoid schizophrenia.’
IME psychiatrist Dr Richa Rastogi, 9 July 2020, diagnosed a ‘generalised anxiety disorder with panic disorder and agoraphobia’ and an ‘adjustment disorder with depressed mood.’ She determined a 22% WPI (classes 2, 4, 3, 2, 3, and 4) and adjusted it by 1% WPI for the effect of treatment, arriving at a final 23% WPI.
IME psychiatrist Dr Assad Saboor, 29 June 2020, also described ‘depression and psychotic symptoms.’
Treating psychiatrist Dr Sian Ong, 29 December 2020, reported ‘Major depressive symptoms" and "psychotic symptoms at a fluctuating level.’
Medical assessor (MA) Dr Yu-Tang Shen, 1 November 2022, noted:
Her mood has been down, all the time. She said that her sleep was poor, and she struggles to going to sleep. She has ongoing nightmares about her manager coming to her house and bullying her and her colleagues. Her appetite has been increased and she has been over-eating sweets, to make her mood happy, and she said that it can make her mood happy for a bit, but then it becomes sad again. Her energy has been always low. Her concentration has been poor, and she cannot concentrate on movies, read the news or listen to music or radio. She has ongoing death ideations.
She has been having panic attacks, but she said it is minimised on the medications she has been taking.
I asked if she had any psychosis, and she said when alone at night awake, she has them and is scared. I asked for more details, and she said there are people telling her to kill herself. She said it is better now when she is having ECT.
The MA had little confidence in the obtained history but suggested that Ms Yumul had an ‘adjustment disorder with depressed mood.’ His description is more in keeping with psychotic depression.
Ms Yumul has presented in several settings since the onset of her injury with anxiety and depression. Later, she developed symptoms of paranoia, ideas of reference and derogatory auditory hallucinations. This evolution of symptoms has caused diagnostic uncertainty, but on my assessment today, and with the hindsight of a complete file review, I have arrived at the diagnosis stated above.
I note the MA's concern about symptom feigning but give weight to the consistency of presentation in various settings over an extended period.
The MA described social activities and activities of daily living:
She lives in Wolli Creek, with her mother, and her Australian flatmate. She has a boyfriend of 2 years in Perth, and she said that lately they have not been talking much recently. She said that her friends message her on Facebook messenger. She said she doesn't see them at all and doesn't go out much, and she goes for a walk with her mother. She said she doesn't go shopping at all.
She doesn't shower or dress regularly, but said that it depends on her mood, 3 times a week. She said she skips meals at dinner as she is gaining weight.
I asked if she has gone out at all for social activities since 2019, and she said ‘yes’ she has not gone out at all. She said she has travelled overseas in 2020 to see her parents, and that was all.
She went alone.
She said she only does online shopping.
She has lost most of her friends, and only has a few left. She has an ongoing relationship with her boyfriend.
She said she has poor concentration and cannot even read the newspaper
3. This description is at odds with his PIRS table, where he found no impairment in self-care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace. He found a mild impairment in social functioning and employability. It appears that the MA discounted much of this history because he believed Ms Yumul was malingering, a belief that he based on neuropsychological testing
4. Findings on clinical examination
I assessed Ms Yumul in her home by video link. The connection quality was adequate to do a comprehensive assessment.
She presented as a mildly overweight young woman with long black hair, appearing casually attired and slightly unkempt. She sat in front of an unmade bed in a messy bedroom.
She said that she was depressed and very anxious about the interview. She expressed concern that I would consider her ‘feigning’ her condition. She appeared distressed, and her affect was significantly restricted, consistent with her mood and congruent with the interview content.
I found no disorder of thought form, but she described psychotic phenomena: perceptual difficulties, paranoid ideation and ideas of reference.
Although she appeared distracted, she answered my questions openly but sometimes needed redirection.
She has frequent thoughts of suicide and has contemplated means: medication overdosing or jumping from a height.
5. Results of any additional investigations since the original Medical Assessment Certificate
I have done no additional investigations.”
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (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.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Procedural fairness
After obtaining a history and conducting a physical examination of the appellant, the MA referred to the special investigations which he had undertaken on the assessment. In the MAC, he recorded that:
“She had a cognitive test (RBANS) with two embedded performance validity testing (ES, PEI) and depression symptoms score (GS), and underwent a performance validity testing for psychiatric symptoms (SIRS-2).
She demonstrated sub-optimal effort in those performance validity tests of cognitive performance and was extremely low in all the test scores of verbal learning, verbal recall, visual recall and attentional capacity. Her test scores are significantly disproportionate to someone with depression, even with ETC treatment several months ago. Her GES remains extremely elevated.
She was classified as likely feigning her psychiatric symptoms on the SIRS-2, with definite tendency to report very unusual symptoms, may reflect uncommon sensory experience or markedly impaired thinking, probable reporting of unusually high proportion of symptoms associated with a major mental disorder, definite endorsement of higher than expected proportion of psychological problems and general symptoms or complex trauma, probable endorsement of wide range of symptoms, occasionally genuine, sometimes attempt to appear mentally disordered and definite endorsement of high proportion of symptoms at extreme levels, sometimes found in genuine patients, or clear exaggeration of intensity of symptoms.”
The MA then addressed inconsistency in the appellant’s presentation. He thought there were significant inconsistencies between her account of the severity of symptoms and her presentation and other evidence before him including the psychological testing. He enumerated the following:
· Inconsistencies with other accounts in the factual investigation;
· Inconsistent symptoms;
· Unusual progression of symptoms with worsening depression, psychosis and functional impairment;
· Minimising her preserved function compared to what she informed her GP in the clinical notes;
· Inconsistent progression of symptoms; all
· Lack of progressive improvement despite escalation of her treatment; and
· The results of cognitive and psychiatric symptom performance validity test.
As he did not accept that she was a reliable witness, the MA discounted the appellant’s evidence in respect of her social activities/activities of daily living. He certified the appellant as suffering from 1% WPI. Undoubtedly, the results of the cognitive and psychiatric performance validity tests were influential factors in the MA’s reasoning.
The appellant’s reliance on the reasoning in Pascoe in support of her contention that she was denied procedural fairness is probably misplaced. In Queanbeyan Racing Club Ltd v Burton[7], Basten JA in the Court of Appeal stated that the reasoning in Pascoe provided “no appropriate guidance in this field of decision-making.” Medical Assessors are able to refer to and decide matters on the basis of medical literature without any obligation to disclose it to the parties. The right of the parties to comment on medical authority or literature referred to in a MAC is confined by the legislative scheme. Burton probably also undermines the reasoning on the issue of procedural fairness in the other NSW cases referred to in the appellant’s submissions. But these criticisms do not detract from the general principle that there must be fairness in the procedure of a tribunal.
[7] [2021] NSWCA 304 (10 December 2021).
Plainly, at common law there is an obligation on a tribunal which has access to information not available to a party to provide it with the substance of any adverse material and an opportunity to respond before determining the matter on the basis of that material. The content of this principle of procedural fairness is obviously dependent on the legislative scheme. After considering the case law referred to by the respondent in its submissions, Hodgson JA, in Maricic v The Registrar, Workers Compensation Commission,[8] said this at [35]-[36]:
“In my opinion Brockmann was correct, insofar as it decided that the relevant requirement to afford procedural fairness did not generally require disclosure to an appellant of an adverse report to an appeal panel by a member of that appeal panel who has, as an approved medical specialist, carried out a further medical examination for the purposes of an appeal to that appeal panel.
However, in my opinion it should not be read as deciding that in no circumstances would failure to provide such a report be a denial of procedural fairness; and in my opinion, if it were to be so read, it would be an error. For example, if such a report were to reject an applicant's case on a basis not previously raised and not addressed in material provided by the applicant, procedural fairness may well require that the applicant be given an opportunity to deal with it: cf Siddik v WorkCover Authority of NSW [2008] NSWCA 116.”
While Hodgson JA was addressing the obligation of an Appeal Panel, it is probable that the principle he stated has wider application. When an MA rejects a case on a basis “not previously raised and not addressed in the material provided” there may be a denial of procedural fairness.
[8][2011] NSWCA 42 (11 March 2011).
Guidelines 11.6 is as follows:
“It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI).”
The Guideline is silent as to whether it is appropriate for an MA to perform psychometric testing on an assessment. Plainly, an MA may be required to comment on psychometric testing put into evidence by a party. As the parties in this case have not addressed on the issue, the panel concluded that it was inappropriate to address the question of whether it was permissible to carry out psychometric testing as part of an assessment on this appeal.
A review of the medical history in this case unequivocally establishes that neither the issue of feigning/malingering or the need for psychometric testing had previously been raised by any specialist psychiatrist who saw the appellant for treatment or for the purposes of litigation. Peculiarly, the appellant had seen an MA, Dr Morris, on two occasions prior to the appointment with Dr Shen. He concluded that she had a severe psychiatric illness. Dr Morris’ summary of injuries and diagnosis on the first occasion was as follows:
“In my opinion, Ms Yumul has a psychiatric condition of Major Depressive Disorder with Melancholic Features and Mood-Congruent Psychotic Features. Her condition remains extremely severe and disabling despite the psychiatric treatment that she has received. Of particular concern are the command auditory hallucinations which she experiences frequently telling her to commit suicide.
• consistency of presentation Ms Yumul’s presentation was consistent with her suffering severe depressive and psychotic symptoms. She did not appear to be exaggerating or minimising her clinical condition.”
Thus, the MA’s resort to psychometric testing and his conclusion that the appellant was feigning resulted in the determination of the case on a basis not previously raised and not addressed in the evidence adduced by either party. While the credibility of the witness is always an issue on a medical assessment, particularly when an assessor is reliant on the worker’s account of her symptoms in determining diagnosis and WPI, the need for psychometric testing was a radically different approach to the assessment process. The panel concludes that, in the peculiar circumstances of this case, the MA should have either given notice to the parties that he intended to conduct psychometric testing for the purpose of testing if the worker was feigning her symptoms, or alternatively, set out the substance of his testing to provide the appellant’s solicitor with the opportunity to comment on it after consulting with her treating or qualified psychiatrists.
Psychometric tests have an established place assessing aspects of personality, cognition and psychological symptoms. However, the use of ‘validity’ scales in these tests is controversial and not universally accepted by psychiatrists or psychologists as useful in determining the feigning of symptoms.
The specialist members of the panel are of the opinion that the psychometric testing employed by the MA has limited utility when assessing injured workers with psychiatric conditions and impairments. The Repeatable Battery for a Neuropsychological Status (RBANS) was designed for use in older adults with dementia and found a place for evaluating younger adults with conditions such as neurodegenerative conditions, head injury and depression. The Geriatric Depression Scale (GDS) was designed to assess symptoms of depression in an older population. The Structured Interview of Reported Symptoms – 2nd Edition (SIRS-2) has been promoted as a tool to detect feigning in forensic settings. Research on the utility of the SIRS-2 as a tool to detect malingering has methodological flaws. We have no gold standard for determining who is malingering and who isn't, save perhaps post hoc confession (a rare event in an unrepresentative sample). For a test to be valid, it is necessary to know the false-positive and false-negative rates, determined by calculating a positive predictive value (PPV). To find this value, one must determine the specificity (true negative rate), sensitivity (true positive rate) of the test and the prevalence of the condition of interest (malingering). Researchers have attempted to determine these things but have relied on simulation trials, for example, testing college students pretending to have the condition of interest. Prevalence rates of malingering have been guessed at or determined using the very tests that may not be fit for purpose. We have none of the relevant metrics. Further, for a test to be useful, it must be validated in the population in which it will be used; in this case, injured workers in a compensation setting, and it is unsafe to extrapolate from other populations or simulation trials. Individuals with psychotic symptoms pose particular challenges.
The MA does not discuss the limitations of his tests. RBANS helps test cognition in the populations described above, and GDS is useful for assessing depressive symptoms in older people. The fact that there are substantial differences of opinion concerning the usefulness of these tests for assessing feigning or malingering reinforces the panel’s opinion that the MA should have given the parties the opportunity to comment on it before determining WPI when relying on the results to assert that the appellant was feigning.
Assessment of WPI
The panel is also of the opinion that there is error in the MA’s assessment of WPI. It is necessary for an MA to provide a brief statement of reasons that complies with the attenuated obligation to give reasons propounded by the High Court in Wingfoot. It is only necessary for the MA to set out the actual path by which they arrived at their opinion. The panel doubts whether the reasons given by the MA for determining WPI in this case complied with that requirement.
Even if it was not incumbent upon the MA to inform the parties of the tests he wished to conduct or the substance of the outcome of the tests, it was necessary for him to set out in his MAC or in an annexure to the MAC the general nature of the tests which he performed and the scores achieved by the appellant. Without such rudimentary information, neither the appellant nor the panel are able to understand the actual path of the MA’s reasoning. The limited explanation provided by the MA of the tests results seems to be equivocal. In the opinion of the specialist medical practitioners on panel, it is difficult to understand and not necessarily supportive of a conclusion that the appellant was feigning her symptoms. In recording the results of his tests the MA stated that the appellant reported “very unusual symptoms, may reflect uncommon sensory experience or markedly impaired thinking.” Her reporting of a wide-range of symptoms is said to be “occasionally genuine.” (Panel’s italics) The passage concluded by stating:
“sometimes attempt to appear mentally disordered and definite endorsement of high proportion of extreme symptoms at extreme levels, sometimes found in genuine patients, or clear exaggeration of intensity of symptoms.” (Panel’s italics)
The Panel noted the MA does not clearly state the basis on which he concluded that the appellant did not fall within the group of “genuine” persons.
As the appellant submits the test results have not been disclosed for scrutiny and the conditions under which the tests were applied are unknown. There is no explanation from the MA as to how he utilised these seemingly equivocal results to conclude that the appellant was “likely feigning” and to entirely reject her account of her activities of daily living. The panel concluded that the reasoning in the MAC did not support the MA’s assertion that the appellant was likely feigning, or, alternatively, that the MA had not provided reasons which enabled the panel to understand the path by which he reached that conclusion.
Finally, the panel considered the appellant’s assertion that the MA had exceeded jurisdiction by referring to evidence in the respondent’s factual report in assessing the appellant’s credibility. In the opinion of the panel, the MA plainly assumed that there was a psychiatric injury. It is not evident that he erred in considering this material for the purpose of addressing WPI.
Reassessment
On receipt of Dr Andrews’s report the panel reconvened to discuss his findings and assessment of WPI. The panel considered four threshold questions. First, whether any weight should be given to the psychometric testing in the circumstances of the case. As the panel did not have access to the test results, it concluded they should be given little weight in determining the medical dispute as to WPI. In the context of the evidence in the case, the medical specialists on the panel doubted their validity. Apart from difficulties with their application, the panel observed that it would be extraordinary for a patient to accept hospitalisation and the ECT in the hope of obtaining compensation. In the opinion of the specialist medical practitioners the appellant worker was probably an outlier in her responses to the MA's tests. The test results may be invalid and should be given no weight.
Secondly, the panel carefully considered the issue of the credibility in the context of the medical history. While it is true that the appellant’s symptoms appear to have worsened over the years despite treatment, the panel noted that each of the psychiatrists who have provided reports accepted that the appellant had a significant psychological illness. Thus the appellant has presented in several different settings, including in hospital, at each of which she has complained of reasonably consistent psychological symptoms. Dr Andrews conducted a mental state examination of the appellant and, after scrutinising her presentation and considering the entirety of the medical evidence, reached the conclusion on the balance of probabilities that the appellant was providing an accurate account of the development of symptoms.
While the panel concluded that the MA did not err in considering the respondent’s factual report, it concluded that a fair reading of the report did not undermine the reliability of the appellant. Accordingly, the panel concluded that, on balance, her account of her symptoms should be accepted.
Thirdly, given the previous certificates of Dr Morris, the panel considered the question of permanency. The panel concluded that as the appellant had undergone several different forms of psychological and psychiatric treatment over the last four years without improvement, it was highly improbable that her condition would improve over the next several years. Thus, the panel concluded that the appellant had reached MMI as the term is defined in Guideline 1.15. The panel specifically considered the appellant’s complaint that she was more distressed since the medical assessment of Dr Shen. It did not follow, however, that her impairment had worsened since the assessment.
Fourthly, the panel considered the evidence in respect of each of the six scales on the psychiatric rating scale. In each case, it concluded that Dr Andrews’ assessment should be accepted. Accordingly, the panel concluded that the appellant suffered 26% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 November 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: | 6206/20 |
Applicant: | Roanne Yumul |
Respondent: | Scottish Pacific Business Finance |
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 of Dr 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)
| 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) |
| Psychiatric injury | 1 March 2019 (deemed) | Chapter 11 | Chapter 14 PP 361-365 | 26% | 0 | 26% |
| Total % WPI (the Combined Table values of all sub-totals) | 26% | |||||
0
11
0