Bannon v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	Bannon v Secretary, Department of Education [2023] NSWPICMP 468
APPELLANT:	Kerry Bannon
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	21 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; worker appealed with respect to assessment under psychiatric impairment rating scale (PIRS) table for self-care and personal hygiene; argued that the Medical Assessor (MA) should have disclosed his path of reasoning in disagreeing with assessment by psychiatrist qualified on her behalf and had regard to other medical evidence, which was more than three years old; State of NSW v Kaur applied; Guidelines paragraph 1.6 and obligation to assess on the day; other; MA explained why he disagreed with worker’s psychiatrist; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 June 2023 Kerry Bannon lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 May 2023.
Ms Bannon relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of 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 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Bannon suffered a psychological injury on 12 August 2018 in the course of her employment by the Secretary, Department of Education (the Secretary) as a teacher.
The Medical Assessor assessed 19% whole person impairment using the Psychiatric Impairment Rating Scale (PIRS). He assessed her in class 2 for self care and personal hygiene, class 3 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 5 for employability.
The appeal concerns only the assessment with respect to self care and personal hygiene.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Ms Bannon to undergo a further medical examination because the assessment made by the Medical Assessor was open to him and does not disclose error.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary and in submissions prepared by Ms Warren of counsel, Ms Bannon submitted that the Medical Assessor failed to disclose his path of reasoning for disagreeing with the opinion of A/Prof Robertson, qualified on her behalf. She relied on Lederer v Insurance Australia Limited/as NRMA Insurance[1] (Lederer) to argue that the Medical Assessor was required to engage with A/Prof Robertson’s report and to give reasons for disagreeing.
[1] [2022] NSWSC 322.
Ms Bannon also submitted that the Medical Assessor did not have regard to the lay and medical evidence before him when he assessed her in class 2 for self care and personal hygiene when the totality of the evidence supported assessment in class 3.
In reply, the Secretary submitted that the Medical Assessor took a detailed history on which he based his assessment in class 2 for self care and personal hygiene and set out his path of reasoning. The Secretary noted that the evidence that Ms Bannon said the Medical Assessor should have had regard to significantly pre-dated the Medical Assessor’s assessment and that he was required by the Guidelines to assess Ms Bannon on the day of the assessment.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 an 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 MAC

The Medical Assessor set out a history of the injury and Ms Bannon’s present treatment. He described her present symptoms and her past psychiatric and compensation history. He recorded a detailed history of Ms Bannon’s social circumstances, ability to travel and leisure activities. Under the heading “Current level of function” the Medical Assessor said:
“Ms Bannon stated she bathes on a variable basis commenting, ‘Sometimes I can go for days….’ That said, she stated that sometimes she may shower three times within a day, or twice in a night. When asked about attending to dental hygiene, she replied she did so in the ‘evening… [and] morning’. She states she visited a hairdresser very infrequently, estimating possibly once every 18 months. She reported missing meals, stating ‘Sometimes I don't have meals, I might have one snack in the day’. She stated she does not cook, but added, ‘I might put something together, like pre-readied (sic) things together’.
Ms Bannon instead [sic] she undertook some household tasks stating, ‘I might put some small items in the wash’, explaining they had an internal laundry in their residence. When asked about the frequency of this she replied, ‘Not very often, but I might do it’. She stated that her husband does work, and that his working days occur and that he does not work from home. She stated he may work six days a week, and that at times his work requires him to be there up to 12 hours in a day. She stated sometimes she goes to sleep before he returns home.”
The Medical Assessor set out his findings on mental state examination and diagnosed chronic adjustment disorder with mixed anxiety and depressed mood. He summarised the reports of Dr Rikard-Bell and A/Prof Robertson, noting that the latter was written over three years before. He said:
“At the time of this report, Ms Bannon had been consulting Dr Joanna Atkins for individual psychological intervention, however, reference is made to there being a temporary pause in treatment due to Dr Atkins' leave. Details of the specific nature of the psychological intervention being provided were not recorded in this report, including any specific modality of treatment or frequency thereof. There is no record of Ms Bannon being prescribed any medication at the time of this evaluation.
A/Prof Robertson also recorded that ‘Mrs Bannon acknowledges a propensity to drink up to a bottle of wine at a sitting in a binge pattern’, related to ‘intense distress’.
With respect to a diagnosis, A/Prof Robertson writes, ‘While I prefer the diagnosis of chronic adjustment disorder with anxiety and depressed mood with cross-cutting features of PTSD, major depression or post-traumatic stress disorder would also be reasonable differential diagnoses’. A/Prof Robertson did not record an alcohol-related diagnosis in this report.
A/Prof Robertson opined that Ms Bannon's condition had stabilised, and calculated a whole person impairment score of 22%. This was based on an aggregate score of 18 and a median class value of 3. No reference is made to any adjustment to the whole person impairment score due to the effects of treatment.
A/Prof Robertson's whole person assessment differed in only one domain, that of Selfcare & Personal Hygiene, where he scored her a 3. Ms Bannon was scored a 2 in the current assessment, based on the information provided by her.”
In the PIRS Rating Form, the Medical Assessor gave reasons for assessing Ms Bannon in class 2 for self care and personal hygiene:
“Ms Bannon reported missing showering at times; at other times she reported showering multiple times in a day. She advised she washed her hair infrequently.
Ms Bannon advised she attended to dental hygiene twice daily.
Ms Bannon advised she sometimes missed meals, though was able to prepare meals for herself using ready-made dishes.
Ms Bannon advised that whilst she lives with her husband and thus does not live independently, her husband may be away from their residence for work up to 12 hours per day, and that he works 5, sometimes 6, days per week.”

The Medical Assessor’s task

The two arguments relied on by Ms Bannon can be dealt with simultaneously because both concern the task of the Medical Assessor and the submission that he should have had greater regard to the documents in the file.
The Medical Assessor was required to clinically assess Ms Bannon as she presented on the day of the examination, taking into account his relevant medical history and all available relevant medical information.[3] He was then required to prepare a certificate which complied with s 352(2) of the 1998 Act:
“(2) A medical assessment certificate is to be in a form approved by the President and is to—
(a)set out details of the matters referred for assessment, and
(b)certify as to the medical assessor’s assessment with respect to those matters, and
(c)set out the medical assessor’s reasons for that assessment, and
(d)set out the facts on which that assessment is based.”
[3] Guidelines paragraph 1.6.
The form approved by the President does alert the Medical Assessor to comment briefly on other reports, though that is not one of the essential elements of s 352(2).
It was not necessary for the Medical Assessor to summarise the evidence or comment on every report. Ms Bannon’s submission that the Medical Assessor’s assessment was inconsistent with “the totality of the evidence” does not reflect his statutory obligation to assess Ms Bannon as she presented on the day of his examination.
In State of New South Wales (NSW Department of Education) v Kaur[4] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[4] [2016] NSWSC 346.
Ms Bannon’s submissions referred only to the latter part of that passage, taking it somewhat out of context. As Campbell J pointed out, the Medical Assessor was required to give his own opinion, based on his own examination. He was not required to choose between the opinions proffered by the parties.
A/Prof Robertson’s only report was dated 18 July 2019. It was prepared nearly four years before the examination by the Medical Assessor. All of the other reports to which Ms Bannon said that the Medical Assessor should have had regard were more than three years old.
A/Prof Robertson’s history relevant to self care and personal hygiene was brief. He said in the body of the report:
“She usually requires prompting to shower otherwise she would remain in her pyjamas all day. She consumes a poor diet. Her husband has to supervise most aspects of her self care.”
There was no additional information in his PIRS Rating Form.
The Medical Assessor obtained a different history, suggesting improvement since the date of A/Prof Robertson’s examination.
Ms Bannon said that the Medical Assessor disregarded her statement. The history he obtained is in fact consistent with it. While the Medical Assessor referred to the documents in the file in a general way, he said he had taken account of the information in the supplied documents. The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [5] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’ "
[5] At [36].
The presumption of regularity applies to presume that the Medical Assessor has appropriately considered the material necessary to issue a MAC.
Ms Bannon’s statement in support of the permanent impairment claim is dated 14 November 2022. In respect of self care and personal hygiene she said:
“Following my injuries , I have found it more difficult to care for myself and no longer have any motivation to bathe except to wash my body down from the experiences I suffer from.
While I do shower frequently as I find it to be a cathartic experience, I do not often wash my hair. I also rarely do housework now, as I find it difficult to muster up the energy and I usually have to contend with headaches and dissociative periods, as well as excruciating back aches. I do however try to do the laundry and some sweeping around the house.
…
I prefer opting for takeaway as I find it to be the easier alternative, though my husband is very supportive and cooks when he can, even though he works on average 12 hours a day, 6 days a week over the working year.”
Ms Bannon’s statement supports a mild impairment and assessment in class 2. She is independent in self care and is able to manage when alone, while her husband is working.
Assessment in class 2 for self care and personal hygiene was open to the Medical Assessor given the history he obtained. He acknowledged the difference between his assessment and that of A/Prof Robertson in the MAC.
As Campbell J said in Ferguson v State of New South Wales[6] (Ferguson), intervention by an Appeal Panel is only justified if the assessment under the tables of the PIRS is “glaringly improbable”:
“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.
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 [2015] NSWSC 633. 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’…”
[6] [2017] NSWSC 887 at [24]-[25].
The assessment made by the Medical Assessor is not glaringly improbable.
Ms Bannon argued that the Medical Assessor was required to engage with A/Prof Robinson’s opinion. As set out above, we are satisfied that he did. The basis for her argument was Brereton JA’s decision in Lederer. That case concerned a decision made by a medical assessor under the Motor Accidents Compensation Act 1999 where the assessor was required to determine if the need for surgery had been caused by the relevant accident and was reasonable and necessary in the circumstances, as well as assessing permanent impairment. In undertaking that task, the assessor was required to engage with the opinion expressed by the treating surgeon as to causation and the need for surgery. The task of a medical assessor under that legislation is quite different to the assessment of permanent impairment under the 1998 Act and the Guidelines.

For these reasons, we have determined that the MAC issued on 8 May 2023 should be confirmed.

[2023] NSWPICMP 468

21 September 2023