Zaccazan v Sunlight Products Pty Ltd
[2021] NSWPICMP 69
•7 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zaccazan v Sunlight Products Pty Ltd [2021] NSWPICMP 69 |
| APPELLANT: | Leanne Zaccazan |
| RESPONDENT: | Sunlight Products Pty Ltd |
| APPEAL PANEL: | Member Brett Batchelor Dr Julian Parmegiani Dr Michael Hong |
| DATE OF DECISION: | 7 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against MAC on the grounds of assessment made on the basis of incorrect criteria and/or that the MAC contains a demonstrable error; psychiatric injury, and only ground of appeal relied on was an incorrect PIRS classification in respect of concentration, persistence and pace; Held- finding by the Appeal Panel that the Medical Assessor had not provided sufficient reasons for his classification of the appellant in Class 2 rather than Class 3; appellant re-examined by a member of the Appeal Panel who classified her in Class 3 for concentration, persistence and pace; MAC of Medical Assessor revoked and new certificate issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 February 2020 Leanne Zaccazan lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Samson Frederick Roberts, an Approved Medical Specialist (since 1 March 2021 with the commencement of the Personal Injury Commission Act 2020, known as a Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 14 October 2020.
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
Leanne Zaccazan (the appellant/Ms Zaccazan) suffered psychological injury arising out of or in the course of her employment with Sunlight Products Pty Ltd (respondent), deemed to have occurred on 15 October 2018. Her employment was in fact terminated on 3 December 2018 and she has not worked since that time. Ms Zaccazan was treated by her general practitioner who prescribed anti-depressant medication and referred her to a psychologist for treatment. She later saw a second psychologist for treatment. She was diagnosed with work related anxiety disorder.
The appellant was admitted to Cumberland Hospital in June 2019 when it was discovered she had been planning suicide by the ingestion of tablets. At that time she had ceased her anti-depressant medication. Following discharge from hospital Ms Zaccazan was followed up by the mental health team. This input has now ceased and she sees her general practitioner on a regular basis. Ms Zaccazan has been prescribed Lexam, Epilim, Seroquel and diazepam. She does not consider that she has recovered, does not feel positive, remains emotionally sensitive and teary and does not derive enjoyment from anything. She spends time in the garden.
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 worker should undergo a further medical examination because the Panel found error on the part of the Medical Assessor in that he did not explain or provide sufficient reasons as to why he placed the appellant in Class 2 of the psychiatric impairment rating scale (PIRS) for concentration, persistence and pace. Having regard for the descriptors for this category and the assessments of the two independent medical examiners whose reports are in evidence, the Panel is of the view that such an explanation and sufficient reasons should have been provided.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Julian Parmegiani of the Appeal Panel conducted an examination of the worker on 28 April 2021 and reported to the Appeal Panel, the contents of which are set out hereunder.
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.
Appellant
In summary, the appellant submits that the assessment was made on the basis of incorrect criteria and/or the MAC contains a demonstrable error. The only ground of appeal is that the Medical Assessor was in error in assessing Ms Zaccazan in Class 2 for concentration, persistence and pace, whereas she should have been classified in Class 3 or 4.
The appellant refers to the assessment of the Medical Assessor in respect of the classification in Class 2, noting that while the Assessor found no inconsistencies in her evidence, the MAC itself is internally inconsistent in that classification 2 for concentration, persistence and pace does not align with:
(a) the information obtained by the Medical Assessor during the examination, and
(b) the available evidence.
The appellant refers to the evidence before the Medical Assessor which shows that she is distracted easily in conversation, has stopped reading altogether and is distracted in her efforts to perform daily chores, moving from one thing to another and not completing activities. The appellant specifically refers to the Summary provided by the Medical Assessor in the MAC, noting that no consistencies were apparent at interview nor were inconsistencies identified on mental state examination. The appellant notes the Medical Assessor’s comment in his Reasons for Assessment that the history provided by Dr Anderson accords with that provided by Ms Zaccazan at the time of assessment on 14 October 2020 based on which he formed the same diagnostic conclusion.
The appellant notes with reference to case law that:
(a) in relation to classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish in the statutory sense;
(b) in seeking judicial review a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review, and that
(c) taking these principles into consideration, the assessment of impairment due to psychiatric injury is very much dependent on the clinical observations of the Medical Assessor whilst conducting his enquiries of the appellant.
The appellant submits that the evidence before the Medical Assessor concerning concentration, persistence and pace is more than one upon which reasonable minds might differ or a mere disagreement about the level of impairment. The Medical Assessor did not explain why on the face of the evidence before him, he preferred Class 2 and, as more than one conclusion was open on the facts, it was necessary for the Medical Assessor to give reasons accordingly.
Respondent
In reply, the respondent disputes that the assessment of whole person impairment (WPI) of the Medical Assessor was made on the basis of incorrect criteria and submits that the MAC does not contain a demonstrable error.
The respondent submits that the Medical Assessor is required to make an assessment based on his findings on physical examination and his knowledge and experience, whilst remaining consistent with the WorkCover Guides. The Medical Assessor is not bound to accept at face value the medical evidence provided, but must make a determination that is in accordance with the whole of the medical evidence in clinical findings before him.
The respondent submits that the submissions of the appellant in support of the appeal are essentially the same as the submissions put forward in the unsuccessful Application for Reconsideration lodged in accordance with s 329 of the 1998 Act and that the appeal is without merit.
The respondent draws attention to s 326 of the 1998 Act, noting that an assessment certified in a MAC under Part 7 of the 1998 Act is conclusively presumed to be correct relevantly as to the degree of permanent impairment of the worker as a result of an injury.
The respondent submits that the submissions put forward by the appellant continue to represent a difference of opinion to that of the Medical Assessor, and on the basis that the Medical Assessor is at odds with the assessment of the appellant’s medico-legal psychiatric expert.
The respondent notes that the Medical Assessor obtained a detailed history from the claimant [sic, the appellant], in relation to the subject injury, her present treatment and symptoms, general health, psychosocial history and review of the appellant’s social activities, and her activities of daily living. Further, the respondent submits that the Medical Assessor undertook a detailed review of the medical evidence provided for his assistance, including the opinion and assessment of Dr Anderson whose reports were submitted in the appellant’s case. He then proceeded to undertake a mental state examination of the appellant as he was required to do before providing his opinion as to diagnosis and permanent impairment.
The respondent notes that the Medical Assessor formed the same diagnostic conclusion as the appellant’s medico-legal expert before proceeding to assess 9% WPI for injury in the employ of the respondent deemed to have occurred on 15 October 2018.
The respondent submits that the Medical Assessor undertook his task required of him consistent with the Commission’s referral and in accordance with Part 7 of the 1998 Act. The assessment he arrived at was consistent with the powers bestowed on him by s 324 of the 1998 Act.
In conclusion, the respondent relevantly submits that the current appeal is based on a difference of opinion and/or interpretation of the evidence, and to allow the appeal in those circumstances would undermine the medical dispute resolution process otherwise provided by Part 7 of the 1998 Act. The appeal should be refused.
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. Once error is made out, the Panel may “review” the MAC (see Siddik v Workcover Authority of NSW[1] and NSW Police Force v Registrar[2])
[1] [2008] NSWCA 116.
[2] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[3] 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.
[3] [2006] NSWCA 284
The applicant was independently medically examined on 8 May 2020 via Skype by Dr Peter Anderson, consultant psychiatrist, at the request of her solicitor. Dr Anderson produced a report of that date[4] containing a diagnosis on Major Depressive Disorder within the DSM-5 system of classification. The doctor noted that it was approximately 18 months since she started to have appropriate treatment for the condition and that she remained symptomatic after that period despite psychotropic medication of appropriate type and despite treatment extending to inpatient treatment. In that context, Dr Anderson said that the prognosis should be regarded for continuation of a symptomatic state with functional impairment.
[4] Appeal Papers p 160.
Dr Anderson assessed the appellant in Class 3 for the category of concentration, persistence and pace. His reasons for decision in making that assessment were:
“She indicates that she is distracted easily, even in conversation, has stopped reading altogether, and is distracted in her efforts to perform daily chores, moving from one thing to another and not completing activities. She is slowed. Impaired at interview.”
The Medical Assessor, Dr Roberts, at [9] of the MAC noted the facts on which he based his assessment of WPI as:
(a) the history provided by Ms Zaccazan;
(b) her presentation on medical state examination, and
(c) the documents reviewed.[5]
[5] Appeal Papers p 24.
In his reasons for assessment at [10] of the MAC, Dr Roberts said:
“a. My opinion and assessment of whole person impairment
In making that assessment I have taken account of the following matters: -
The history and examination, information within the documents and a specialist understanding of the nature of the diagnosed condition,
b. An explanation of my calculations (if applicable)
Worksheet /actual calculations attached? Yes
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
The history obtained by Dr Anderson accords with that provided by Ms Zaccazan at the time of the assessment of 14 October 2020 based upon which he formed the same diagnostic conclusion. It would seem that Dr Teoh misunderstood aspects of Ms Zaccazan’s history based upon which he did not make a psychiatric diagnosis.
d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.”
Dr Roberts assessed the appellant in Class 2 for concentration, persistence and pace, giving the following reason for decision:
“Ms Zaccazan plays games on her phone. She undertakes limited household tasks. She participated effectively in a lengthy interview process without evidence of cognitive compromise. Her account and presentation were reflective of mild impairment.”
Dr Ben Teoh independently medically examined the appellant on 28 March 2018 at the request of the insurer of the respondent and produced a report of that date addressed to Employers Mutual Limited[6]. The reference by Dr Roberts to Dr Teoh at [10] of the MAC is in respect what he noted earlier in the MAC in his summary of relevant documents, namely:
“The psychiatric report of Dr Ben Teoh dated 28 March 2018 was reviewed. He was evidently of the understanding that Ms Zaccazan was an employee of Employers Mutual Limited Insurance. He formed the understanding that Ms Zaccazan had a history of depression in the context of which she had tried several antidepressants in the past and had seen counsellors.
He did not consider that her presentation was consistent with DSM-5 diagnostic criteria.”[7][6] Appeal Papers p 509.
[7] Appeal Papers p 23.
Dr Teoh assessed the appellant again on 7 August 2020 and produced a report dated 17 August 2020[8]. In that report Dr Teoh recorded Ma Zaccazan’s presentation as being consistent with a diagnosis of a Chronic Adjustment Disorder with Depressed Mood (DSM-5 Diagnostic Criteria). He assessed Ms Zaccazan in Class 3 for the PIRS category of concentration, persistence and pace. His reason for decision in making that assessment was:
“She has poor concentration and persistent preoccupation with negative thoughts.”[9]
[8] Appeal Papers p 556.
[9] Appeal Papers p 561.
Nowhere in the MAC does Dr Roberts refer to the second report of Dr Teoh dated 17 August 2020. His reference is only to the report dated 28 March 2018.
In findings on physical examination Dr Roberts found that Ms Zaccazan participated effectively in a lengthy interview. She spoke rapidly but clearly and logically. He said that no features of compromise with respect to memory or concentration were apparent. In his summary he said that no inconsistencies were apparent at interview nor were inconsistencies identified on mental state examination. These findings are in contrast to what Dr Anderson found on examination as follows:
“Your client was examined by Skype. She was at home in her dressing gown. She sat outside and smoked. She participated as best as possible. Her account was disorganised. I thought her concentration was impaired. She described depressed mood with congruent loss of energy, motivation and enjoyment. Her affect was depressed. She was tearful at times in the course of the interview especially when describing the workplace events.”[10]
[10] Appeal Papers p 164.
The Appeal Panel acknowledges that a Medical Assessor must assess a worker as he or she presents on the day of assessment with the history provided and having regard to the documents reviewed. However the Panel is of the view that the Medical Assessor in this case, in view of the descriptors in respect of Classes 2 and 3 of the PIRS category for concentration, persistence and pace, has not provided sufficient information for classifying the appellant in Class 2 rather than Class 3. The medical members of the Panel are of the view that there is nothing in the descriptors in Table 11.5 of the Guidelines that would suggest Class 2 for concentration, persistence and pace rather than Class 3. Further, the Medical Assessor has not provided an explanation as to why his assessment differs from the assessments of Dr Anderson and Dr Teoh. The Appeal Panel therefore determined that a member of the Panel should re-examine the appellant.
The report of Dr Parmegiani, the member of the Panel who examined the appellant on 28 April 2021 is as follows:
“Ms Leanne Zaccazan was assessed via videolink on 28 April 2021. The interview extended over approximately one hour. Ms Zaccazan was interviewed alone.
1. The workers medical history, where it differs from previous records
Nil
2. Additional history since the original Medical Assessment Certificate was performed
Ms Zaccazan was diagnosed with cancer in late 2020. She had an ulcer on the side of her tongue, and radiological investigations indicated the presence of secondary lesions in her lymph nodes. She was admitted to Nepean Hospital, and she underwent a 13-hour operation on 26 February 2021. 25 lymph nodes, and a third of her tongue were removed. She spent one week in intensive care, and she was eventually discharged on 25 March. A PEG tube was inserted, and she continued to feed herself through it. She could only consume a liquid nutritional supplement. Ms Zaccazan experienced ongoing pain in her right shoulder and neck. She managed pain with oxycodone 15-20ml twice a day. She also experienced pain in her left wrist, which was the donor site used for her tongue reconstruction.
Ms Zaccazan remained depressed, withdrawn and unmotivated. She was emotionally labile, and she cried with minimal trigger. Her self-esteem was low and she felt hopeless about her future. She no longer felt that her life was worth living, but there were no recent suicide attempts. Ms Zaccazan suffered panic attacks when she left the security of her home. Symptoms included palpitations, shortness of breath, and shaking. She feared dying from a myocardial infarction or an asthma attack. Symptoms lasted from 2-30 minutes. Ms Zaccazan slept poorly, and with the help of medication. She was prescribed mirtazapine 15mg at night, Seroquel 50mg at night, and diazepam 5-10mg per day. Ms Zaccazan spent up to three days in bed, doing little. She spent some time in her garden, generally in the afternoons.
3. Findings on clinical examination
Ms Zaccazan was a 45-year-old woman of average weight. It was difficult to understand her speech, due to her recent tongue surgery. She was emotionally labile, and she became tearful on repeated occasions. Ms Zaccazan’s thinking was coherent and she did not express delusional ideas. She did not experience visual or auditory hallucinations. She was oriented in time, place and person and her memory was generally intact.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations were administered.
5. The classicisation of the appellant worker for the PIRS Category of concentration, persistence and pace.
In view of Ms Zaccazan’s recent cancer treatment, the assessment focused on her level of function before the cancer diagnosis. Ms Zaccazan did not perform intellectually demanding tasks during the course of the day. She was only able to read less than a page before losing interest. She spent time on her smartphone, playing solitaire. Playing solitaire was a mindless activity that distracted her from negative thoughts. She did not engage in social media, and she did not read online news. Her partner Peter purchased groceries and prepared meals. Her impairment was consistent with Class 3.
Signed: Dr Julian Parmegiani
Date: 28 April 2021”
The Appeal Panel accepts the report of Dr Parmegiani and his assessment of the appellant, Ms Zaccazan, as being in Class 3 of the PIRS Category for concentration, persistence and pace.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 October 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons. Table 11.8 of the PIRS Rating Form required amendment in respect of the PIRS Category of concentration, persistence and pace only. The amendment is shown in bold.
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 Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Samson Frederick Roberts 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 | 15 October 2018 (deemed) | Chapter 11, page 60, Table 11.8 | 19% | 19% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
2
0