Bennett v Konekt Employment Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Bennett v Konekt Employment Pty Ltd [2022] NSWPICMP 43
APPELLANT:	Barbara Anne Bennett
RESPONDENT:	Konekt Employment Pty Ltd
APPEAL PANEL:	Member Catherine McDonald Dr Michael Hong Dr Julian Parmegiani
DATE OF DECISION:	10 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Psychological injury; assessment in Psychiatric Impairment Rating Scale categories; Ferguson v State of NSW, Parker v Select Civil Pty Ltd referenced; Held- Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 November 2021 Barbara Bennett 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 11 October 2021.
Ms Bennett 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 was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment[1], 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).
[1]

RELEVANT FACTUAL BACKGROUND

Ms Bennett suffered a psychological injury as a result of her workload as an employment advisor. The injury was an aggravation of long-standing anxiety and depression and is deemed to have been suffered on 29 January 2019.
Using the Psychiatric Impairment Rating Scale (PIRS) in the Guidelines, the Medical Assessor assessed 7% whole person impairment (WPI). He deducted one-tenth of his assessment under s 323 of the 1998 Act and added 2% for the effects of treatment, resulting in an assessment of 8% WPI.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker 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 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 we have considered them.
In summary and in submissions prepared by her solicitor, Ms Bussoletti, Ms Bennett submitted that the Medical Assessor failed to consider relevant and probative material and failed to take a proper history. She said that the MAC is internally inconsistent and did not align with the information obtained by the Medical Assessor during the assessment and the available evidence. She said that the Medical Assessor had erred in the application of four of the PIRS scales.
Ms Bennett did not submit that there was any error in the assessment in Class 2 for Self-care and personal hygiene and Class 2 for Travel.
In respect of Social and recreational activities, Ms Bennett submitted that her attendance at a local gym on five days per week was not social – it is only undertaken with support and encouragement from her general practitioner and is a reason to get up in the morning. She said that the classes should be seen as solitary activities undertaken for a therapeutic purpose. She said that the statement that she goes to lunch with others following twice weekly Alcoholics Anonymous (AA) meetings was incorrect and that she goes to lunch only once per week. She said that the Medical Assessor failed to inquire as to her ability to interact with others at lunch. She also said that the activity was not social and/or recreational but rather therapeutic in the same way as attendance at any other support group. She said she should have been assessed in Class 3, rather than Class 2.
With respect to Social functioning, Ms Bennett submitted that the Medical Assessor did not take a proper history of the degree of physical contact she has with her family. She said that she has only phone contact with her daughters, second-daily visits from her mother, walks with a friend once a week followed by coffee and has dinner with her AA sponsor weekly. She said that both Dr Allan, qualified by her lawyers, said that she was unable to form relationships and both he and Dr George, qualified for Konekt, said that she was unable to sustain relationships. She said that the Medical Assessor’s comments with respect to maintaining relationships was incorrect. Ms Bennett said she should have been assessed in Class 3, rather than Class 2.
Ms Bennett said that the rating given for Concentration, persistence and pace was incorrect because she struggled with the TAFE course she undertook and required extra assistance from her teachers and would not have completed it without assistance from her daughters. She said that she undertook the course because she was encouraged to do so as part of her treatment. She said that the Medical Assessor failed to consider her statement in that regard.
The Medical Assessor recorded that she goes to bed and reads herself to sleep over two hours. Ms Bennett said that was more indicative of her inability to sleep than her ability to maintain concentration for two hours. The submissions noted that in addition to the medication set out in the MAC, Ms Bennett took agomelatine to assist with sleep, citing an unattributed “internet search” to describe its properties. Ms Bennett said she should have been assessed in Class 3 rather than Class 2.
Ms Bennett submitted that she should have been assessed in Class 5 for Employability. She noted that the Medical Assessor said that she was looking for work and could possibly perform to Dr George’s assessment of 20 hours per week. She said that opinion was unrealistic and that the Medical Assessor should have assessed her as being unemployable as Dr Allan did. Ms Bennett said she should have been assessed in Class 5 not Class 4.
Ms Bennett said that the history in the file did not reveal a reduction in her treatment or improvement in her condition. The submission was made in respect of the 2% allowance for the effect of treatment but there is no argument that it should be otherwise.
The submissions cited one Court of Appeal authority and one medical appeal panel decision but did not otherwise refer to them.
In reply and in submissions prepared by its solicitor, Mr Ainsworth, Konekt said that the MAC should be confirmed. Citing Parker v Select Civil Pty Ltd[2] (Parker) and Ferguson v State of New South Wales[3] (Ferguson), Konekt said that the Appeal Panel would only be justified in intervening if the categorisation in the PIRS categories was glaringly improbable, the Medical Assessor was unaware of significant factual matters, if a clear misunderstanding could be demonstrated or if an unsupportable reasoning process could be made out.
[2] [2018] NSWSC 140.
[3] [2017] NSWSC 887.
Konekt said that none of the assessments made by the Medical Assessor in the disputed PIRS categories revealed an error. It noted that the Medical Assessor had dealt with the s 323 deduction differently to Dr Allan and Dr George. It submitted that if the Medical Assessor had attempted a pre-injury PIRS assessment, it would probably have resulted in a lower or nil assessment of the impairment resulting from the injury.

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[4] 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.
[4] [2006] NSWCA 284

The MAC

The Medical Assessor recorded that Ms Bennett had commenced employment in 2013 and began to notice symptoms of stress and anxiety from 2015 which became worse after 2018. He noted that she had ceased work on 29 January 2019 and had been hospitalised on two occasions after November 2018. He obtained a history of her current symptoms.
The Medical Assessor noted that Ms Bennett first developed anxiety and panic attacks in 1991 and was referred to a psychologist. She also saw a psychiatrist, Dr Heiner. She was treated with antidepressants medication and was still taking medication when she suffered the workplace injury. She developed an alcohol problem in about 2000. In 2006, in the context of an abusive relationship, she took a drug overdose which resulted in the admission to a drug and alcohol program. The Medical Assessor noted that Ms Bennett had been sober for 14 years and attended AA twice a week. She had been hospitalised in 2007 and 2008. He set out her employment history.
The Medical Assessor described Ms Bennett’s social activities and activities of daily living, relevantly including:
“She wakes every day at about 8:00 AM, then spends an hour showering, putting on make-up and doing her hair.
She does housework and some cooking, but less than before.
She goes to the gym five days a week, where she does an exercise Class.
She attends AA meetings twice a week, often going out to lunch with other women attendees afterwards.
Each Sunday, she goes for a 10-15 km walk with a friend, followed by going out for coffee.
She has dinner with a girlfriend once a week.
…
She is close to her mother, daughters, sister and two girlfriends but has lost three friends because of her social disengagement. There have been no arguments or discord.
She enjoys reading novels, especially Australian stories, and does so for at least two hours every night. She said, ‘I have read many books getting myself to sleep.’
Last year, she completed a Certificate III in Business Administration. She did so at a slower pace and required more support from the TAFE and her daughters. She has considered enrolling in a medical terminology course but has put it off because she is uncomfortable with the online format.
She would like to work but is not confident that she would succeed.”
The Medical Assessor diagnosed:
·persistent depressive disorder with anxious distress;
·panic disorder, and
·alcohol use disorder in full remission.
When considering the impact of s 323, the Medical Assessor said:
“Ms Bennett has had a previous anxiety disorder with depression. There is evidence that this condition continued through several years, and she was still on treatment for it when she started to have symptoms in 2015.
She also has a pre-existing alcohol use disorder that is not contributing to her current impairment.”
And
“I have determined a 7% WPI before deducting one-tenth for her pre-existing condition. 7% WPI minus one-tenth (0.7% WPI) equals 6.3% WPI rounded to 6% WPI.
This is much better than impairments determined by Drs Allan and George, suggesting a substantial improvement in her WPI. I, therefore, add 2% WPI for the effect of treatment.”
The Medical Assessor summarised reports from Ms Bennett’s treating practitioners and the independent medical examiners, Dr M Allan and Dr G George. He noted where the history obtained by him differed from that recorded by them. He noted that Dr Allan made an assessment of Ms Bennett’s pre-existing impairment using the PIRS but that small differences in the assessment based on the history resulted in 0%. He preferred a one-tenth deduction.
In assessing Ms Bennett in Class 2 for Social and recreational activities, the Medical Assessor said:
“She attends a group session at a local gym five days a week. She goes out to lunch with other attendees following her twice-weekly AA meetings. Once a week, she goes for a 10 to 15 km walk with a girlfriend, after which they have coffee. She has withdrawn from other social engagements.”
In respect of Social functioning, the Medical Assessor placed Ms Bennett in Class 2 and said:
“She has maintained good relationships with her mother, daughters, sister and two girlfriends. She has lost three good friends because of her social disengagement.”
The Medical Assessor also assessed Ms Bennett in Class 2 for Concentration, persistence and Pace and said:
“She reads for up to 2 hours at a time, enjoying Australian stories. She has little interest in television. She completed a Certificate III in Business Administration in 2020, but required extra support to do so.”
In assessing Ms Bennett in Class 4 for Employability, the Medical Assessor said:
“She hasn’t worked in any capacity since January 2019. However, her academic studies are a work-like activity and indicate some capacity. She can present herself well, sufficient for a workplace environment. She has lost confidence and has moderately severe symptoms. It is untested how well she would go in a structured workplace, and she would likely need to work at a reduced pace, and her attendance may be erratic.”

The law

The task of the Medical Assessor was to assess Ms Bennett as he presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines[5]. He was not bound to agree with findings of other assessors, nor was he required to choose between their assessments.
[5] Guidelines paragraph 1.6.
Campbell J described his task in State of New South Wales v Kaur[6]:
“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.’”
[6] [2016] NSWSC 346.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment. What follows in each class are examples which demonstrate the level of impairment - see Jenkins v Ambulance Service of NSW[7].
[7] [2015] NSWSC 633 at [57]-[65].
In Ferguson v State of New South Wales[8] (Ferguson) Campbell J said:
“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’…”[9]
[8] [2017] NSWSC 887.
[9] At [24].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Limited[10] (Parker) and said[11]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”
[10] [2018] NSWSC 140.
[11] At [70]-[71].

Dr Allan

Dr M Allan, psychiatrist, examined Ms Bennett on behalf of her lawyers and reported on 21 September 2020 - about a year before the examination by the Medical Assessor. In respect of the past, Dr Allan said that there was a history of depression and anxiety from the mid 1990s which had been well-managed during Ms Bennett’s period of employment with Konekt until December 2018. His history of her previous problems was brief. He diagnosed major depressive disorder and considered the treatment appropriate. At that time Ms Bennett had not completed her studies and he considered she was unlikely to. However if she did there was a theoretical potential that she could return to work though the chance was extremely low.
In his first report, Dr Allan assessed 23% WPI, making no deduction under s 323 but allowing 1% for the effect of treatment. Dr Allan did not examine Ms Bennett again.
Dr Allan prepared a further report on 2 December 2020 and confirm that he did not consider that a s 323 deduction was required. In a further report dated 6 September 2021 Dr Allan relied on the previous treating documents to undertake an assessment under the PIRS which resulted in pre-existing impairment of 4%. In a further report dated 6 September 2021, Dr Allan relied on the records of treating practitioners to undertake an assessment under the PIRS which resulted in impairment of 4%. His final WPI assessment is 19%.

Dr George

Dr G George assessed Ms Bennett on behalf of Konekt and reported on 11 June 2019. He diagnosed exacerbation of a major depressive disorder.
Dr George examined Ms Bennett again and reported on 21 June 2021 and diagnosed chronic major depression with anxiety. He agreed that work had exacerbated her condition. He assessed 15% WPI and added 2% for the effect of treatment. He deducted one-tenth under s 323 resulting in 15% WPI. When he was asked to consider documents relating to Ms Bennett’s previous treatment, Dr George prepared a further report in which he said that a 50% deduction could be made. He believed that his opinion could be open to challenge.

PIRS assessment

The complaints made in respect of each of the assessments are similar, being that the Medical Assessor failed to consider reliable, relevant and probative material and that he failed to take a proper history.
Ms Bennett drew some examples to support her submissions from the file and the MAC. Some other statements in her submissions are not supported by the information in the file and to the extent that they are new information, those submissions have not been considered. The argument appears to be that the Medical Assessor made a demonstrable error and failed to take a proper history because he did not record information which is now provided in the submissions. An example is the assertion that a friend whom Ms Bennett sees frequently is her AA sponsor. Those aspects of the submissions have not been considered. A further statement about those matters would not be fresh evidence and would not be additional relevant information within the meaning of s 327(3)(b).[12]
[12] See for example Lukacevic v Coates Operations Pty Ltd [2011] NSWCA 112;
With respect to Social and recreational activities, Ms Bennett sought to characterise activities such as going to the gym regularly, and having lunch after an AA meeting as therapeutic rather than social. She said that the class she attends at the gym is a solitary activity in a controlled environment and that lunch after the AA meeting was akin to attending a support group.
There might be some force in that submission if the extent of Ms Bennetts attendance was the AA meeting alone or if she participated sporadically. While her general practitioner may encourage attendance, Ms Bennett continues to participate on a regular basis. Activities which are forced or recommended to those suffering depression will generally not be sustained unless they offer enjoyment. The panel also noted she engages in activities after the AA meetings, such as having coffee.
The scale assesses a worker’s interaction with others[13]. Ms Bennett’s description of her reluctance to become engaged is consistent with assessment in Class 2, which contemplates that a person with a mild impairment may not become actively involved in the events she attends. Ms Bennett is able to regularly attend events without needing a support person, not merely occasionally.
[13] Ballas v Department of Education (State of NSW) [2020] NSWCA 86.
Social functioning is an assessment of the quality of relationships. Ms Bennett has limited contact with her daughters but that is primarily because they live elsewhere. She sees her mother frequently, maintains some friendships and sees those friends very regularly. She has lost some friends. Assessment of a mild impairment (Class 2) can be consistent with the loss of some friendships. There is no error in the Medical Assessor’s assessment.
Ms Bennett submitted that the assessment should be higher because both Dr Allan and Dr George made different assessments. The Medical Assessor assessed Ms Bennett on the day of his examination as he was required to do. He was not required to agree with other assessors. The Medical Assessor considered their assessments and explained that he differed – Ms Bennett had maintained close relationships and had not lost any through violence or discord, though had lost some relationships through disengagement. He gave reasons for his assessment and explained them.
Dr Allan’s assessment in Class 4 is not appropriate for someone in such regular contact with others, particularly when he acknowledged that there was no evidence of severe strain in the pre-existing relationships Ms Bennett maintains. While he regarded her as unable to form or sustain new relationships, he did not explain that statement.
Likewise, Ms Bennett has not demonstrated that the Medical Assessor erred in his assessment of Concentration, persistence and pace. While Ms Bennett said she struggled with her TAFE course and required assistance, she did complete it. Dr Allan doubted that she would.
The Medical Assessor and Dr Allan both noted that Ms Bennett found it more difficult to participate when the course moved online as a result of the Pandemic, confirming that other factors besides her ability to concentrate were relevant.
Ms Bennett spoke of the course in a positive way in her statement dated 14 April 2021. She said that she enjoyed the course and was undertaking it to increase her skills, ability and confidence. She said that she deferred some subjects because she was unable to attend face to face classes. Ms Bennett told the Medical Assessor that she had considered another course but had “put it off” because of the online format, suggesting that she had not given it up completely.
Ms Bennett’s submissions sought to characterise her ability to read for two hours as indicative of her inability to sleep rather than an ability to concentrate. There is nothing in her statement about the subject. The Medical Assessor recorded that Ms Bennett enjoyed reading novels, particularly Australian stories, and read to get to sleep for about two hours every night. She had read “many books”. Dr George also noted that she read to get to sleep. Regardless of the purpose of her reading, Ms Bennett enjoys reading and reads every night. There is nothing to suggest that she does not finish the books she starts or that she has difficulty maintaining her concentration while reading.
The assessment in Class 2 for Concentration, persistence and pace was open to the Medical Assessor.
Similarly, the assessment in Class 4 for Employability was open to the Medical Assessor. Ms Bennett told him that she was actively looking for work. She undertook a course to improve her skills and he said the fact that she completed it suggests some capacity. He considered that Dr George’s assessment in Class 3 was optimistic and assessed her in Class 4 because of his uncertainty that she could maintain employment. Assessment in Class 4 – described as severe impairment - connotes very limited capacity.
Ms Bennett submitted that Dr George’s opinion was unrealistic because of the modern work environment is competitive and because of Ms Bennett’s age. Those matters are not relevant to an assessment of whether Ms Bennett is employable or not because of her injury.
Similarly the argument that if she had capacity Ms Bennett would have returned to the workforce, based on her past work history is not relevant to the assessment of whether or not she is employable. The submission that she had little time off work between jobs does not take account of the long period when Ms Bennett was out of the workforce between 2007 and 2008 and undergoing inpatient treatment at Northside Clinic for alcohol dependance.

Effect of treatment

Ms Bennett’s submissions about the addition of 2% for the effects of treatment are confusing. The inclusion of that amount in accordance with paragraph 1.32 of the Guidelines is an acknowledgement by the Medical Assessor that treatment has been successful in ameliorating her symptoms and that without the treatment, the assessment may be higher.
For these reasons, we have determined that the MAC issued on 11 October 2021 should be confirmed.

[2022] NSWPICMP 43

10 March 2022