A Guiding Principle: Two's Company, Three's a Crowd

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Lorraine Kuskey v State of New South Wales (Illawarra Shoalhaven Local Health District) [2020] NSWWCCMA 172

By: Danny Khoshaba, Partner and Katia Guido, Lawyer

Background

The Appellant in this matter Ms Kuskey worked for the Respondent (NSW Health) as a Registered Nurse. It was during the course of her duties that she was assaulted by a patient and suffered psychological injury.

The Appellant was first assessed by Independent Medical Expert Dr Peter Young, in March 2019 at the request of the Respondent. Dr Young diagnosed Post-Traumatic Stress Disorder (‘PTSD’) as a result of the subject incident. He felt that the Appellant was at the time fit for a limited return to work but believed that her condition would improve steadily.

The Appellant was then assessed by a specialist of her own choosing, Dr Michael Prior on 1 November 2019. Dr Prior assessed the worker as suffering 16% Whole Person Impairment (‘WPI’) and so, the Appellant claimed lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (NSW) (‘WC Act’) in reliance inter alia with the opinion of Dr Prior.

Dr Young was then asked to re-assess the Appellant, this time to comment on the Appellant’s functioning and to award a percentage of impairment if appropriate. With the benefit of multiple consults, Dr Young determined that the Appellant had not yet reached Maximum Medical Improvement (‘MMI’), disagreeing with the assessment of Dr Prior, maintaining that she would continue to improve.

Those familiar with psychological claims will be aware that the Psychiatric Impairment Rating Scale or PIRS is used to determine WPI percentages. The PIRS scale includes sub-headings of functioning consisting of: Self-care and personal hygiene, Social and recreational activities, Travel, Social functioning, Concentration, persistence and pace and Employability, to attempt to holistically understand a person’s psyche.

Of import in this matter, Dr Young believed that Dr Prior’s findings of a ‘Class 3’ or Moderate Impairment under the headings of Self-care and personal hygiene, Concentration, persistence and pace and Employability were not justified.

Thus, the parties reached an impasse. Accordingly, the matter was referred by the Registrar to an Approved Medical Specialist (‘AMS’) who assessed the Appellant as having 9% WPI. The outcome of this decision precluded the Appellant from entitlement to lump sum compensation as section 65A of the WC Act provides that those who suffer psychological injury must have reached at least 15% WPI to be entitled to a lump sum benefit.

The Appellant subsequently appealed the decision of the AMS on the basis that the MAC contained a demonstrable and/or the assessment was based on incorrect criteria.

The Crux of the Appeal

The Appellant sought to attack the following:

  1. The PIRS ratings for the following categories:
    1. Self-Care and Personal Hygiene
    2. Social Functioning
    3. Concentration Persistence and Pace
  2. The purported 2% deduction made by the AMS for effects of treatment.

The Appellant’s Submissions

The appeal was based on submissions that the AMS had erred by failing to provide sufficient reasons for their conclusions and had applied incorrect PIRS classification criteria. The Appellant submitted that due to errors made by the AMS, impairment ratings in the PIRS categories outlined above ought to increase from the awarded Class 2 (‘Mild Impairment’) to a Class 3 (‘Moderate Impairment’) respectively.

The Appellant additionally submitted that the AMS had erred in deducting 2% WPI for substantial elimination of the degree of permanent impairment.

The Respondent’s Submissions

The Respondent submitted that the PIRS ratings appeal had no merit, noting that the Appellant’s submissions were based purely on disagreement.

In making these submissions the Respondent took the opportunity to address the Appeals process generally noting that an AMS by their very nature are experienced assessors, specifically trained and versed in providing accurate assessments. The Respondent referred to the detailed history taken by the AMS during the assessment of the Appellant through appropriate enquiry and with reference to the material before him before reaching a conclusion.

The Respondent submitted that by undertaking a thorough assessment and carefully considering all materials it was open to the AMS to award those PIRS categories which they deemed most appropriate and so, there was no demonstrable error nor was the assessment based on incorrect criteria.

For example, in the category of Concentration Persistence and Pace the AMS felt that an impairment rating of Class 2 (‘Mild Impairment’) was appropriate (the Appellant argued for a Class 3 “Moderate Impairment”). By way of background those Classes are as follows:

  • PIRS Guides – Class 2: “Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
  • PIRS Guides – Class 3: “Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”

The AMS in making his assessment took a thorough history from the Appellant wherein she informed him that she has been working as an RN although supernumerary and has been trusted to give out medications.  The Appellant also revealed that she checks herself several times to make sure she did things correctly and has learned new IT programmes and showed no concentration or focusing difficulties within the assessment.  The AMS also added that the Appellant described some fears around her cognitive functioning because of potentially making mistakes, but none that were actually observed and finds the current clerking work quite boring and easy.  He added that the Appellant reported being able to focus on TV shows for up to 90 minutes, manage internet banking, and her own separate finances.

The appeal did not dispute any of the above taken history, rather the Appellant submitted that only part of the AMS reasoning could be categorised as a Class 2, and then went on to provide an additional history which included difficulty to read a book or watch a movie to be considered which ought to, in the Appellant’s view, raise the classification from a Class 2 to a Class 3.

What is essential to remember when dealing with the PIRS Scale Guides are that they are simply put, just a guide and should be interpreted with enough flexibility that may be warranted in response to the circumstances of each case.

Respectfully, the Appellant’s submissions did not allow for the AMS to interpret his history holistically and with necessary flexibility to exercise a clinical judgement.

The Decision

The Medical Appeal Panel agreed with the Respondent and made reference to the Guides requiring that an AMS assess permanent impairment: “as they present on the day of assessment taking into account the appellant worker’s relevant medical history and all available relevant medical information; and direct the AMS to exercise clinical judgement.”

Accordingly, the Panel maintained the findings of the AMS in the first instance and so, the classification of Class 2 across all categories which were subject to the appeal were upheld.

In respect of the appeal ground regarding the 2% WPI deduction, the Panel determined that appeal failed because the AMS did not deduct 2% WPI for the effects of treatment but has in fact added 2% WPI pursuant to paragraph 1.32 of the Guidelines.

Implications

The Panel essentially accepted the Respondent’s position with respect to all matters appealed by the Appellant.

The Panel emphasised that the Guidelines are exactly that, a ‘guide’, which ultimately coincided with the Respondent’s submissions.

The outcome here highlights the value of having a consistent assessor throughout a claim, in this matter Dr Young certainly benefited from assessing the Appellant on multiple occasions which we feel ultimately made his opinion more probative to the AMS.

It is crucial when looking at an appeal that we identify the relevant classes holistically and not get caught up with one facet of a worker’s history that may meet a specific class and in doing so ignore the balance of the history which may be more consistent with a different class.

Further, it is important to re-visit the worker’s statement and the forensic report relied upon by the worker when attending to an appeal to understand precisely whether the submissions of an appeal have merit.

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