Baf v Healthcare Complaints Commission
[2022] NSWPICMP 68
•28 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BAF v Healthcare Complaints Commission [2022] NSWPICMP 68 |
| APPELLANT: | BAF |
| RESPONDENT: | Healthcare Complaints Commission |
| APPEAL PANEL: | Member William Dalley Professor Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 28 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal asserting incorrect criteria and demonstrable error with respect to two areas of function in the Psychiatric Impairment Rating Scale Table, “self-care and personal hygiene” and “concentration, persistence and pace” asserting that the respective classes assessed by the Medical Assessor were not open on the evidence and a higher classification should have been assessed; Held- the Medical Assessor’s assessments were open on the evidence; reference to Ferguson v State of New South Wales and Jenkins v Ambulance Service of New South Wales; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 November 2021, BAF lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 February 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 grounds of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant, BAF, commenced employment as a solicitor with the respondent, the Healthcare Complaints Commission, in 2008. In February 2015 BAF became ill and was off work for a period. She returned to work, but her illness persisted and she was forced to take further sick leave. As a result of events in the workplace, during her sick leave and following her return to work, BAF suffered a psychological injury deemed to have occurred on 27 January 2017. Liability for that injury was accepted by the insurer.
On 19 October 2020 BAF was examined by a psychiatrist, Dr Martin Allan, at the request of BAF solicitors to assess whole person impairment (WPI) with a view to a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act).
Dr Allan diagnosed BAF as having a major depressive disorder and a generalised anxiety disorder. He assessed her as suffering 22% WPI as a result of the subject psychological injury.
BAF solicitors made a claim for lump-sum compensation in accordance with Dr Allan’s assessment. At the request of the insurer, BAF was examined by a psychiatrist, Dr Robert Wotton, who diagnosed her as having a generalised anxiety disorder and diagnosed BAF as having 7% WPI. He attributed 1/10 of this to a pre-existing condition with an assessment of 6% WPI resulting from the subject injury.
The dispute as to the extent of impairment resulting from the subject injury was referred to the Medical Assessor who examined BAF on 27 October 2021. The Medical Assessor diagnosed BAF as suffering a persistent depressive disorder and a generalised anxiety disorder. He assessed BAF as having 7% WPI. The Medical Assessor found no relevant pre-existing condition or abnormality or previous psychiatric/psychological injury.
The assessment of impairment by the Medical Assessor was performed in accordance with the Guidelines. Assessing the level of function in each of the six areas of function described in the Table 11.8 of the Psychiatric Impairment Rating Scale (PIRS) the Medical Assessor relevantly assessed BAF as suffering mild impairment (Class 2) in the area of function “self-care and personal hygiene”. In respect of “concentration, persistence and pace” he assessed BAF as falling within Class 1 indicating that BAF had no, or only a minor deficit attributable to the normal variation in the general population.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant requested that she be re-examined by was a member of the Panel. Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[1] said; “if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for further assessment.” The Panel is satisfied that no error has been demonstrated and accordingly re-examination is not appropriate. The Panel has before it all the necessary material in order to determine the appeal.
[1] [2013] NSWSC 1792 at [33].
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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits the Medical Assessor based his assessment of the areas of function “self-care and personal hygiene” and “concentration, persistence and pace” upon incorrect criteria and/or fell into error in the assessment of those areas of function.
In reply, the respondent submits that BAF was assessed in accordance with the Guidelines and the Medical Assessor’s assessments were based on appropriate clinical judgement and were open to the Medical Assessor in the light of the evidence.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[2] 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.
[2] [2006] NSWCA 284.
The appellant’s submissions address two of the PIRS areas of function, “self-care and personal hygiene” and “concentration, persistence and pace”. It is convenient to deal with those areas of function separately.
Self-Care and Personal Hygiene
The Medical Assessor recorded the history of injury, noting the onset of anxiety and mood disturbance early in 2015 and subsequent admission to a mental health unit in June 2017, BAF relevant medication and continuing treatment. He recorded BAF present symptoms and noted that BAF denied any mental health problems prior to 2015.
With respect to activities of daily living, the Medical Assessor noted that BAF “rises each day between 9:30 AM and 10 AM. She makes herself tea and a light breakfast. She then showers and gets dressed.” The Medical Assessor noted that most of the housework is done by BAF husband and her son, although she assists with tasks such as washing up. She cooks simple meals about three days a week but otherwise her husband does most of the cooking. The Medical Assessor noted that, at the video examination, BAF was “casually attired and appeared well-groomed.”
The Medical Assessor noted that Dr Allan had determined a Class 3 impairment in respect of this area of function. He noted that Dr Allan, reporting in October 2020, had recorded neglect of personal care – "She will tend to shower most days, but at times this will be prompted by her husband. She does not cook, this is done by her husband. She does not attend to laundry or cleaning tasks. In my opinion, she scores a 3.”
The Medical Assessor recorded that, upon his examination in October 2021, BAF had informed him that she “showers and wears clean clothes most days. She prepares the evening meal three days a week. She helps with some household chores, leaving most to her husband and son.”
In reporting his reasons for assessing BAF as falling within Class 2, the Medical Assessor stated:
“BAF showers daily and dresses in clean clothes. She assists with housework, although she leaves much of this to her husband. For example, she may wash up after dinner or prepare the evening meal a few days a week. Her appetite is reduced, but she usually has three meals a day.”
The appellant notes those observations and submits that these “ought to have led him to an assessment of Class 3 rather than Class 2.” The appellant noted the class descriptors found in Table 11.1 for Class 3. The relevant descriptors are:
“Class 2 – Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.
Class 3 – Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) two – three times per week to ensure minimum level of hygiene and nutrition.”
The appellant submitted that the conclusion to be drawn from the Medical Assessor’s observations was that BAF could not live independently. She relied heavily on her husband and son in respect of housework and meal preparation and only prepared meals a few nights per week when she had to, as her husband was working.
The appellant submitted:
“It is the appellant’s position that the information taken from the AMS (Medical Assessor) in respect of the appellant’s circumstances is more in line with an assessment of Class 3. The appellant asserts that the appellant does not need to meet the entirety of the criteria contained within the Class. The AMS is to exercise his clinical judgement in determining the most appropriate rating for the appellant.
The appellant submits that he has exercised this judgement incorrectly under this category”.
In submissions in reply, the respondent noted the requirement in the Guidelines for assessors to “exercise their clinical judgement in determining a diagnosis when assessing permanent impairment”[3]. The respondent submitted that the Medical Assessor had appropriately performed his clinical assessment of BAF as she presented on the day and considered the relevant medical history and all available relevant medical information. The Medical Assessor had appropriately exercised clinical judgement in forming his opinion and assessment of BAF by reference to the Guidelines. The respondent noted that the class descriptors provided in the PIRS Table are examples only[4].
[3] Guidelines, paragraph 1.6b.
[4] Guidelines, paragraph 11.12.
In Ferguson v State of New South Wales[5] (Ferguson), Campbell J gave guidance as to the appropriate approach to consideration of the assessment made by a Medical Assessor pursuant to chapter 11 of the Guidelines. His Honour said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37]”.
[5] [2017] NSWSC 887
In Jenkins v Ambulance Service of New South Wales[6] (Jenkins), Garling J also said:
“It was a matter for the clinical judgment of the AMS [ Medical Assessor] to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, 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.”
[6] [2015] NSWSC 633 at [73].
The Panel is satisfied upon review of the evidence and consideration of the submissions that it was open to the Medical Assessor to assess BAF as falling within Class 2 (mild impairment) in this area of function. The Panel notes BAF statement given in July 2021 which accompanied her Application to Resolve a Dispute. In that statement BAF referred to feeling constantly overwhelmed by daily tasks and becoming irritable. BAF also noted an observation by Dr Wotton in his report dated 18 February 2021, clarifying that, if she had noticed a large stain on her clothes before attending the interview, she would have taken appropriate steps to remove it.
BAF written statement does not contradict the factual situation recorded by the Medical Assessor with respect to hygiene, dressing and activities of daily living. Although the appellant submits that she would be unable to live independently, the evidence supports a conclusion that she is able to cook for herself when her husband is not available due to work commitments. In performing work experience in a legal office it is likely that she was able to maintain a satisfactory level of dress and personal hygiene. BAF appears to maintain a reasonable level of nutrition.
The Psychological Functional Assessment Report by a psychologist, Stephanie Srbinovska, included in the material lodged in support of BAF application recorded that, when BAF had attended for assessment, she was observed to be wearing “smart casual business attire and appearing well-kept (i.e. tidy hair, wearing clean clothes, and showering prior to the assessment).”
Although minds may differ as to the appropriate classification, the Panel is satisfied that it was open to Medical Assessor to assess BAF as falling within Class 2 in the area of “self-care and personal hygiene”.
Concentration Persistence and Pace
The Medical Assessor noted:
“BAF can concentrate for a couple of hours without difficulty, attending to intellectually challenging tasks, but then must rest for about 15 minutes. She reads novels and professional books on legal topics. She completes her mandated 10 hours of CME each year, allowing her to maintain her right to practice (sic). She described listening without difficulty to a one hour lecture two weeks ago. She spends two hours each day researching job opportunities, preparing and submitting applications.
During her work trial, she summarised briefs for a criminal barrister.”
The Medical Assessor recorded:
“….she reported to me that she reads novels and legal texts. She completes annual CME, maintaining her certification as a lawyer. She spends two hours a day doing tasks related to job search. She said she could concentrate for two hours on complex tasks such as preparing legal summaries without difficulty. There were no signs of gross cognitive impairment during my 90 minute assessment.”[7]
[7] MAC, page 8
The appellant submitted that the observations of the Medical Assessor were “more in line with Class 2 in that the appellant needs to rest after undertaking intellectually demanding tasks and feels fatigued.” The appellant asserted that the Medical Assessor had not detailed the “intellectually challenging tasks” of which he observed BAF to be capable. The appellant submitted that undertaking 10 hours of continuing legal education and listening to one hour lecture was not “objectively intellectually challenging.”
The appellant pointed to the high level of function that BAF had been capable of prior to her injury, submitting that the Medical Assessor had failed to consider the extent of the difference between this and her current situation.
The Panel does not accept that submission. The relevant descriptors are as follows:
“Class 1 – No deficit, or minor deficit attributable to the normal variation the general population. Able to pass a TAFE or university course within normal timeframe.
Class 2 – Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods up to 30 minutes, then feels fatigued or develops headache.”
The appellant submitted “that the evidence available to the AMS, in the referral documents from his own clinical examination, suggested it would be a [sic] plausible for the doctor to reach a different conclusion under the PIRS categories that he has recorded.” The Panel accepts that this may well be the case, but the the fact that opinions may differ as to the appropriate classification does not establish the application of incorrect criteria or demonstrate error. As noted above, the decisions in Ferguson and Jenkins establish that more than a difference of opinion is required in order to establish error.
The Medical Assessor had the advantage of a lengthy interview with BAF in which he was able to make observations of her capacity in this area of function. He correctly recorded an ability to concentrate on intellectually demanding tasks for considerably longer than the as an indicator in the Class 2 descriptor. The term “intellectually demanding tasks” would appear to be suitable to apply to the preparation of legal summaries which BAF told the Medical Assessor she could do without difficulty as well as the activities regard to job applications which necessarily involve reasoned consideration of the jobseeker’s talents and capacities in relation to the requirements of the job vacancy. Noting that the class descriptors are examples only, it was open to the Medical Assessor to assess BAF as falling within Class 1 in the area of function, “concentration, persistence and pace”.
The Panel is satisfied that the Medical Assessor has not adopted incorrect criteria nor fallen into demonstrable error in respect of either of the areas of function addressed by the appellant and the appeal is unsuccessful.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 October 2021 should be confirmed.
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