Bennett v State of New South Wales (NSW Police Force)
[2023] NSWPICMP 164
•28 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bennett v State of New South Wales (NSW Police Force) [2023] NSWPICMP 164 |
| APPELLANT: | Angela Bennett |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 28 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal against assessment of 9% whole person impairment for psychologically injured police officer; whether class 2 rating for social functioning and concentration, persistence and pace categories correct; Held – Ferguson v State of New South Wales, Jenkins v Ambulance Service of New South Wales, Glenn William Parker v Select Civil Pty Ltd and Ballas v Department of Education (Ballas) considered and applied; social function category found to be open to the Medical Assessor (MA); concentration persistence and pace assessment based on a flawed reasoning process as primary reason expressed by MA was claimant’s ability to drive long distances which was not appropriate to category; claimant re-examined and classification increased to 3; observations on application of principle in Ballas, but not decided as not argued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2022 Angela Bennett (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 7 December 2022.
The appellant relies on the following grounds of appeal under s 327(3) 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 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.
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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment. “PIRS” is a reference to the psychiatric impairment rating scale provided by Chapter 11 of the Guides.
RELEVANT FACTUAL BACKGROUND
On 26 September 2022 the President’s delegate referred this matter to the MA for an assessment of WPI caused by psychiatric/psychological disorder on a deemed date of 25 March 2010.
Ms Bennett began work with State of New South Wales (NSW Police Force) (the respondent) in May 1999. She commenced doing general duties at Campbelltown Local Area for three years before transferring to Bowral Local Area Command for six years and then to Narooma Local Area Command for 13 years.
During that time she experienced the traumatic events that are part and parcel of the duties of the first responders. They include fatal motor accidents, suicides, murders and drownings. These were detailed by the MA.
Ms Bennett has not worked since she left the respondent in 2018.
The MA made an assessment of 9% WPI.
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 Procedural Direction PIC7.
The appellant requested to be re-examined and for the reasons given below, a re-examination was carried out by Dr Andrews of the Panel.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Doug Andrews of the Appeal Panel conducted an examination of the worker on Tuesday 21 March 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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 [2006] NSWCA 284 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.
The appellant challenged the assessments in the PIRS categories of
· Social functioning, and
· Concentration, performance and pace.
The MAC
The MA recorded Ms Bennett’s current symptoms as follows:[1]
“Ms Bennett reports feeling extremely agitated, hyperalert, on the lookout for danger and is jumpy at sudden noises. She never sits with her back to the door…… She avoids going near police stations or visiting Bega as these trigger intrusive traumatic memories. She describes seeing the world as a dangerous place and finding it very difficult to trust people. She reports having no pleasures or interests now. She finds it difficult to feel close to people and describes feeling ‘numb’.”
[1] Appeal papers page 38.
In the segment entitled “social activities/ADL” the MA said:[2]
“Ms Bennett lives in her own home on 30 acres at Dignam’s Creek near Cobargo on the South Coast of NSW. She lives with her husband and her husband’s 32-year-old daughter who has a profound disability and receives NDIS support on a daily basis.
Ms Bennett said she does some shopping, but her husband does most of it. They share the cooking. She does the house cleaning and clothes washing. She said she does not shower unless she has to go out. She eats dinner regularly with her husband. … She does the gardening and grows vegetables and mows the lawn on their property. She visits her autistic son once a week at his supported living accommodation at Batemans Bay which is a 1.5-hour drive away from her home. She said her daughter visits her occasionally at her home. She reports having no friends. She is able to drive to Batemans Bay, a 1.5-hour drive, by herself without a stop once a week to visit her son. She is able to drive to Moruya which is a one-hour drive away from her home without a stop to see her psychologist on a fortnightly basis. However, she relies on her husband to drive her for longer distances or to new locations because of her anxiety.”
[2] Appeal papers page 39.
In his summary at [7] the MA said:[3]
“• Summary of injuries and diagnoses:
In my opinion Ms Bennett has the psychiatric conditions of Posttraumatic Stress Disorder and Persistent Depressive Disorder. These psychiatric conditions have emerged as a result of numerous traumatic events that Ms Bennett experienced during her work as NSW Police Officer particularly in the period from 1999 until 2005. Despite having appropriate psychiatric and psychological treatment her condition has remained clinically significant.
• consistency of presentation Ms Bennett was consistent in her presentation of her history and symptoms. She did not appear to be exaggerating or minimising her clinical condition.”
[3] Appeal papers page 39.
In his reasons for assessment the MA said:[4]
“I have given Ms Bennett a whole person impairment rating of 9% according to the attached PIRS rating form. …..
Please note that I have rated Ms Bennett a Class 2 for Concentration Persistence and Pace rather than a Class 3. I rated Ms Bennett a Class 2 as I note that she is able to drive by herself without a break for 1.5 hours to visit her son in Batemans Bay on a weekly basis, and is also able to drive one hour by herself without a break on a fortnightly basis to visit her psychologist. Taking her ability to drive for this amount of time without needing a break into consideration, I believe she has a mild level of impairment in Concentration Persistence and Pace.”
[4] Appeal papers page 39.
In discussing the other medical opinions that were before him at [10c], the MA considered the report by Dr Abdal Khan, who had assessed a 22% WPI on 2 June 2021. The MA said:[5]
“….Where [Dr Khan] differed from me was in his ratings for Social Functioning where he rated Ms Bennett a Class 3 whereas I have rated Ms Bennett a Class 2. I rated Ms Bennett a Class 2 as she reports that although there has been strain in her relationship with her husband, they remain together with no episodes of separation or domestic violence. Dr Khan rated Ms Bennett a Class 3 for Concentration Persistence and Pace whereas I have rated Ms Bennett a Class 2. I rated Ms Bennett a Class 2 primarily because I note that she is able to drive by herself without a break for
1.5-hours to visit her son on a weekly basis in another town, and also to drive by herself for 1-hour to visit her psychologist in another town on a fortnightly basis.”
SUBMISSIONS
[5] Appeal papers page 41.
Ms Bennett submitted that the MA was required to give adequate reasons, referring to Vegan which we have noted above. It was submitted that the MA had failed to provide a viable and sufficient path of reasoning to substantiate his assessment of a mild impairment where a higher class of impairment was available in the two impugned categories of the PIRS.
Ms Bennett kindly reproduced the reasons given in the PIRS for the class 2 assessment for the category of social functioning. She submitted that the assessment was inconsistent with the findings of the MA in the body of the MAC. Those findings, it was alleged, gave rise to a class 3 impairment rating.
We were referred to the appellant’s statement which, it was claimed, confirmed her complaints.
With regard to the category of concentration, persistence and pace, again the appellant kindly set out the MA’s findings in the PIRS table. We were referred to comments by Dr Khan in his report of 2 June 2021 and again to paragraphs of the appellant’s statement.
Ms Bennett noted that the MA had based his assessment on the fact that she could drive long distances. The MA had not taken into account Ms Bennett’s evidence that whilst driving, even on short trips, she became lost when distracted by anxiety.
Respondent’s submissions
The respondent firstly acknowledged the traumatic incidents that had caused Ms Bennett’s psychiatric symptoms, noting that she ceased work in 2018.
The respondent repeated the history taken of those traumatic experiences and Ms Bennett’s subsequent history noted by the MA.
We were also referred to the MA’s comments under Social Activities/ADL and her responsibilities within the household where she now lives with her husband and his
32-year-old daughter, who has a profound disability.The respondent noted that Ms Bennett would drive to Batemans Bay by herself once a week to visit her son and that she was able to drive to Maruya to see a psychologist on a fortnightly basis.
With regard to the challenge to the MA’s assessments, the respondent submitted that the MA provided the rationale for both social functioning and concentration, persistence and pace, the respondent submitted that Chapter 11.6 of the Guides had been complied with in the reasons given by the MA.
The respondent submitted that in addition to the reasons given in the PIRS table, the brief comments he made in 10c of the MAC were also germane and particularly the reasons the MA gave for differing with Dr Khan being the nature of her relationship with her husband.
The respondent noted the reliance by Ms Bennett on the contents of her statement and her submission that it was therefore incumbent on the MA to question Ms Bennett further.
The respondent reproduced the full text of the relevant paragraph that it relied (paragraph 59, not paragraph 9 as alleged by the appellant). It was Ms Bennett’s ability to drive herself for long periods of time for over an hour that, the respondent submitted, was a significant feature in the MA’s reasoning as to why the level of impairment in this category was only mild.
Again, we were referred to the MA’s comments at [10c] whereby the MA explained why he gave a different assessment.
It was submitted that his reasons were not at odds with the evidence before him.
The respondent also submitted that the MA’s reasons were expansive and considered not only the appellant’s medico-legal advice but also that of Dr Bisht, the respondent’s medical expert, with whom he also did not agree.
We were referred to well-known authority as to the applicable legal principles and it was submitted that no error had been indicated.
DISCUSSION
The PIRS
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[6] provides:
“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.”
[6] Guides page 55.
The MA is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[7]
[7] See Table 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[8] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [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[9]. 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].”
[8] [2017] NSWSC 887.
[9] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[10] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“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 error in the statutory sense. (Ferguson [24])…..”
[10] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS 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.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the MA in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
In Ballas v Department of Education[11] the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (or scale), and failure to do so would result in appellable error.
[11] [2020] NSWCA 86 at [94].
It can be seen from the above authorities that it is incumbent in a challenge to the assessment of a PIRS entitlement that an appellant establish more than a mere disagreement about which reasonable minds might differ.
Turning to the category of social functioning, the relevant class descriptors are:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The MA explained his reasons for that assessment in the table:[12]
“Mild impairment. Ms Bennett said her relationship with her husband has been very strained by her symptoms, but they remain together with no separations or episodes of domestic violence. She reports having a reasonable relationship with her adult children. However, she said she has lost all her friendships due to her social withdrawal.”
[12] Appeal papers page 45.
The appellant relied on the description by the MA of Ms Bennett’s current symptoms as demonstrating an inconsistency with his above reasons. This description noted that Ms Bennett saw the world is a dangerous place, and that it was very difficult to trust people. She found it difficult to feel close to people and felt “numb.”
Support was also to be found, it was submitted, in Ms Bennett’s statement of 17 February 2022.[13]
[13] Appeal papers page 57.
Ms Bennett said at [53] that her husband worried about her a lot and that significant stress had been placed on her marriage. She now felt that she was a burden on her family. At [54] Ms Bennett said that practically all her social relationships had broken down since the injury, she had spoken to one friend only in the past 12 months, and she felt like she had no friends.
It can be seen that a class 3 rating connotes a person in a somewhat more serious situation than Ms Bennett, relatively speaking. There have been no periods of separation or domestic violence, and Ms Bennett has been looking after her husband’s daughter and visiting her son in Batemans Bay, both of whom have particular needs. There has been no suggestion that Ms Bennett’s condition is such that either Mr Bennett, other relatives or community services were needed to look after them. The class 2 assessment was open to the MA.
There are, however, different considerations which apply to the finding of a class 2 rating with regard to concentration, persistence and pace. The relevant descriptors are:
“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 of up to 30 minutes, then feels fatigued or develops headache.
Class 3 Moderate impairment: 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 MA explained his class 2 rating as follows:
“Mild impairment. Ms Bennett complains of reduced concentration. However, she is able to drive for 1.5 hours without a break on a weekly basis to visit her son in another town. She is also able to drive for one hour without a break on a fortnightly basis to visit her psychologist. She reports being able to garden for about 20 minutes at a time before needing to take a break. She was able to concentrate for the 60-minute duration of the assessment.”
In the body of his reasons, as indicated, the MA made it clear that Ms Bennett’s ability to drive was a significant factor in his awarding a class 2 rating in this category. To repeat, he said:
“… I have rated Ms Bennett a class 2 primarily because I note that she is able to drive by herself without a break for 1.5 – hours to visit her son on a weekly basis in another town, and also to drive by herself for one – hour to visit her psychologist in another town on a fortnightly basis.”
Whilst the MA also mentioned Ms Bennett’s gardening, and her concentration during the
60-minute assessment, his focus was primarily on her ability to drive to for 1.5 hours to visit her son and 1 hour to visit her psychologist.The Panel does not regard an ability to drive long distances over familiar routes as being a good indicator of concentration, persistence and pace. This is because the act of driving is an overlearned activity. Overlearning occurs when a task or skill is practiced beyond the point of mastery; it can be performed automatically, with little effort, concentration or attention. This is true of frequently driving over familiar routes, as Ms Bennett has done when visiting her son or psychologist.
With respect, the MA’s reasoning process was therefore flawed, as such a primary focus constituted a reviewable error. Accordingly his assessment needs to be revisited.
As to the significance of the MA’s reference to other matters such as Ms Bennett’s gardening activities, the Panel was unable to determine the appropriate classification without a re-examination.
Accordingly, a consultation was arranged between Ms Bennett and Dr Andrews of the Panel on 21 March 2023. Dr Andrews report follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W2591/22 |
Appellant: | Angela Bennett |
Respondent: | State of New South Wales (NSW Police Force) |
Date of Determination: | 21 March 2023 |
Examination Conducted By: | Dr Douglas Andrews |
Date of Examination: | 21 March 2023 |
1. The worker’s medical history where it differs from previous records
Ms Bennett confirmed that the account given to MA Dr Morris was substantially correct.
2. Additional history since the original Medical Assessment Certificate was performed
Since Ms Bennett’s assessment on 7 December 22, the antidepressant dothiepin has become unavailable, and she has had to transition to nortriptyline 25 mg three times a day. Her anxiety has increased, and she could not pinpoint the reason, although the change in medication may have caused this change.
Ms Bennett lives on a 30-acre property at Cobargo with her husband of 20 years, David, who has three adult children and one grandchild. Ms Bennett has two adult children with an 18-month-old grandson from her daughter. Her son has a disability and lives in supported accommodation.
She sees her psychiatrist, Dr Sharat Lal, monthly and her psychologist, Ms Krystel Dragisic, every two weeks. Her current medications are lurasidone 40 mg daily, nortriptyline 25 mg thrice daily, and prazosin 2 mg at night. She has completed Phase 1 of the PTSD program at South Coast Private Hospital, and although Dr Lal has recommended that she attend Phase 2, she said that she is unlikely to do so.
Current symptoms:
Ms Bennett has a pervasively low mood without diurnal variation. She has a sense of hopelessness, saying, ‘I am sick of everything; I don’t want to be here; I would like to go to sleep and not wake up.’ She is often teary and struggles with motivation.
She is anxious, especially away from home, tending to have increased anxiety when her depression is less severe. She worries about her circumstances and the well-being of her children. She is vigilant away from home and can be triggered into distressed thoughts by things that remind her policing career, such as police cars or sirens.
She has subjective difficulties with concentration, attention and memory. She keeps lists and is often distracted during daily activities.
She has had thoughts of suicide but uses distraction techniques when these occur.
She has disturbed sleep with long latency and frequent waking. Sometimes, she wakes screaming after a nightmare.
Her appetite is reduced; she rarely eats during the day and is inclined to sugary foods in the evening. She has gained some weight but avoids weighing herself because of her history of anorexia nervosa.
She has no libido.
Activities of daily living:
She is usually up by 8 AM. After a cup of tea and a cigarette, she may do a small amount of housework.
She showers and changes her clothes about once a week without prompting or encouragement.
She occasionally drives herself into the town, a 30-minute trip to shop or visit her clinicians. She visits her son at Bateman’s Bay twice weekly (a 90-minute drive), allowing extra travel time because she sometimes gets lost, although it is a familiar drive.
She no longer sees friends and does not use social media. She stopped going to the gym late in 2022. About once a month, she goes out to a café with her husband. She attended an extended family get-together at a pub in 2022.
She rarely meets up with her daughter or stepchildren, except for a disabled stepdaughter, who lives with them 18 days a month and requires care.
She has not worked in any capacity since 2019.
Diagnoses:
Her history and symptoms are consistent with post-traumatic stress disorder and an ongoing major depressive disorder, as determined by MA Morris.
The appeal was made on the grounds of incorrect ratings in social functioning and concentration, persistence and pace. MA Morris had rated each at Class 2, and the appellant argued that Class 3 was warranted.
Social functioning:
MA Morris wrote:
‘Ms Bennett said her relationship with her husband has been very strained by her symptoms, but they remain together with no separations or episodes of domestic violence. She reports having a reasonable relationship with her adult children. However, she said she has lost all her friendships due to her social withdrawal.’
IME Dr Yajuvendra Bisht, 31 January 2022, determined a mild impairment, arguing:
‘Angela is distant from her husband. There have not been any periods of separation though.’
IME Dr Abdal Kahn, 2 June 2021, thought the impairment moderate:
‘Ms Bennett described tension in pre-existing relationships with her family and friends. Although her marriage is still intact, her husband actively avoids being at home. She sleeps in a different room to her husband. Ms Bennett has lost all her close friendships.’
IME A/Prof Michael Robertson, 14 November 2019, thought the impairment mild:
‘She has lost numerous friendships in the course of these difficulties. There have been no instances of domestic violence, threatened or actual separation.’
Her relationship with her husband is strained; she said, ‘we just talk about superficial stuff; we don’t get into anything; we just live in the same house. He gets cranky that I’m depressed and won’t go somewhere with him.’ Nonetheless, there has been no domestic violence or talk of separation.
She described her relationships with her children and stepchildren as ‘superficial.’ They continue to see each other. She is unhappy about the reduced contact with her daughter and grandchild.
Although she sees them infrequently, her relationships with her mother, five sisters and five brothers remain intact.
She has no contact with previous friends.
Although her primary relationships are strained, Ms Bennett has maintained family relationships while disengaging from friends.
A Class 2 rating is appropriate.
Concentration, persistence and pace:
MA Morris found a mild impairment in concentration, persistence and pace, noting:
‘Ms Bennett complains of reduced concentration. However, she is able to drive for 1.5 hours without a break on a weekly basis to visit her son in another town. She is also able to drive for one hour without a break on a fortnightly basis to visit her psychologist. She reports being able to garden for about 20 minutes at a time before needing to take a break. She was able to concentrate for the 60-minute duration of the assessment.’
IME Dr Bisht, 31 January 2022, considered the impairment moderate and wrote:
‘Angela was able to sustain concentration throughout the course of the interview with me.
During the course of her day, she is able to engage is limited activities that involve a reasonable amount of concentration and persistence, such as looking after cows, painting the house.’
IME Dr Khan, 2 June 2021, also thought the impairment moderate, and noted:
‘Ms Bennett struggles to maintain attention and concentration for extended periods of time. She cannot focus on reading and tries to listen to audiobooks as a means of distraction from her emotional distress. Her memory is impaired.’
A/Prof Robertson, 14 November 2019, considered the impairment moderate arguing:
‘She reports that she is forgetful and inattentive. She is unable to read beyond a few lines before losing focus. She misplaces belongings.’
Ms Bennett spends a couple of hours during the morning in her garden. She has a greenhouse, propagates her plants, and grows fruit and vegetables. She has long gardening experience and says she can do this ‘mindlessly’. She is often distracted and moves from one task to another without completing the one at hand. She can garden for about 20 minutes before she takes a break.
Previously, she was interested in reading but now struggles to read for more than 20 minutes. She does so with distraction and often has to reread passages. She has recently tried to read a historical novel but is only a quarter of the way through after a few weeks.
She watches the news on television but says it is ‘just background noise.’ She occasionally watches a movie or an undemanding show like Death in Paradise.
Other than the garden, she has no projects or hobbies.
Although Ms Bennett may spend two or more hours in her garden, she does so in a disorganised fashion, moving from task to task, and needs frequent breaks. She is an experienced gardener and can manage without much cognitive engagement. Likewise, although she can drive long distances, as argued by MA Morris, driving is an overlearned task, and Ms Bennett describes losing focus and getting lost even on familiar routes.
During my interview today, she showed a lack of focus and problems with memory (see the mental state examination below).
A Class 3 rating is warranted.
Whole Person Impairment:
With a change in concentration, persistence and pace from a mild to moderate impairment, Ms Bennett’s class ratings (classes 2, 3, 2, 2, 3, and 5) sum to 17, median 3, and determine a 19% WPI.
3. Findings on the mental state examination
I assessed Ms Bennett in her home by video link; the connection quality was adequate to do a comprehensive assessment.
She presented as a slim-looking woman of stated age, with her blonde hair pulled back in a dishevelled manner. She was casually attired. She was cooperative throughout the interview.
She was anxious, with a low mood, and her affect was restricted, consistent with her stated mood and congruent with the interview contact. She became teary on a couple of occasions during the interview.
There was no evidence of any disorder of thought-form or perception.
She was cooperative throughout the interview but struggled to recall some details and event sequences. She appeared to lose focus during the interview and needed redirection.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.
Signed: Dr Douglas Andrews
Date: 21 March 2023”
We adopt Dr Andrews’ findings. The reliance by the MA primarily on Ms Bennett’s ability to drive for long periods to justify his assessment for the category of concentration persistence and pace was not, with respect, an appropriate indicator of the behavioural consequences of Ms Bennett’s functional impairment in this category.
We would also observe, without deciding, that the emphasis by the MA on Ms Bennett’s driving may have been contrary to the Court of Appeal decision in Ballas, referred to above. At [94] Bell P and Payne JA said:
“94. Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
This aspect was not argued before us and we accordingly make no further comment.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 December 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | M1-W2591/22 |
Appellant: | Angela Bennett |
Respondent: | State of New South Wales (NSW Police Force) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Patrick Morris 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/ Psychological | 25 March 2010 - deemed | Chapter 11 | 19% | nil | 19% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
5
0