Blacklock v Dahlsens Building Centres Pty Ltd
[2023] NSWPICMP 690
•20 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blacklock v Dahlsens Building Centres Pty Ltd [2023] NSWPICMP 690 |
| APPELLANT: | Robert Blacklock |
| RESPONDENT: | Dahlsens Building Centres Pty Ltd |
| APPEAL PANEL | |
| SENIOR MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 20 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal in relation to the psychiatric impairment rating scale (PIRS) categories; appellant complained that the Medical Assessor (MA) erred in assessing a Class 2 in respect of concentration, persistence and pace, where a Class 3 was more appropriate; whether MA had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover; Held - assessment of Class 2 was an appropriate classification; no error found; the Medical Appeal Panel considered that the MA had clearly articulated on what basis he found the appellant’s classification as Class 2; the MA was not required to provide an extensive or detailed explanation of the criteria applied in reaching his professional judgment; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 September 2023 Robert Blacklock (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 September 2023.
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 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. 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 (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).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by Dahlsens Building Centres Pty Ltd (the respondent) as the manager of a warehouse. He sustained a psychological injury arising from the nature and conditions of employment.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel determined there was sufficient evidence on which to make a determination. There had been a clearly reported thorough examination of the applicant.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant complains that the MA erred in assessing a Class 2 in respect of concentration, persistence and pace, where a Class 3 was more appropriate. The appellant submits that in assessing a class 2, the MA simply did not follow any of the indicators set out in guidelines in Table 11.5. The appellant’s submissions at paragraphs 1, 2, 3 and 4 outline the assessment of Class 2.
The respondent submitted that the MA has not fallen into error and the MAC should be confirmed.
The MAC
The parts of the medical certificate given by the MA that are relevant to the appeal are set out below.
· His energy levels were low, and he felt slack as he had lost motivation to do any work. (Page 2)
· His mood continues to be ‘flat’’. (Page 3)
· He said that his usual day it looks like getting up at 9:00 AM, sitting in a chair and watching TV most of the time. He mostly watches the news but can't see other programmes because he doesn't have Internet. He said that he struggles to do his mowing and yardwork. He only cleans up his house once a month. (Page 3).
· He lives on his own and struggles with cooking. He cooks every third night and cooks in bulk. He earlier used to love cooking but doesn't enjoy that anymore. (Page 4)
· He reports that his attention and concentration are poor. He gets distracted easily. He is, however, able to cook meals and is able to do household chores. He doesn't read books as he was never a prolific reader. (Page 4)
· He remained slightly anxious throughout the interview. He gave a clear account of his symptoms and difficulties. (Page 5)
· Concentration and pace: I agree with Dr Bisht’s assessment. Dr Teoh has mentioned, “He reported depressed mood and a preoccupation with negative thoughts will stop he has been worrying about his future unemployment. He has insomnia and lacks motivation.” There is no mention of the reason for marking it as moderate improvement was. (Page 7)
· Concentration, persistence and pace – Class 2 – he reported that his attention and concentration is poor. He gets distracted easily. He is however able to cook meals and is able to do household chores. He doesn't read books as he was never a prolific reader. (Page 10)
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.
In Mahenthirarasa v State Rail Authority of New South Wales & Ors[2007] NSWSC 22 Malpass AJ commented that “a demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.” Further, the Supreme Court noted in Glenn William Parker v Select Civil Pty Limited[2018] NSWSC 140 that in Ferguson v State of New South Wales[2017] NSWSC 887 at [23] (Ferguson), Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (Wark), where it is stated at [33]:
“...the pre-eminence of the clinical observations cannot be understated. 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. ...”
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion
In Jenkins v Ambulance Service of NSW[2015] NSWSC 633 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.”
In Ferguson v State of New South Wales[2017] NSWSC 857 (Ferguson), where Campbell J was considering whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the Approved Medical Specialist (AMS) unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd[2018] NSWSC 140 (Parker) Harrison J at [66] said:
“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...”
A Class 2 is described in Table 11.5 as “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.”
A Class 3 is described in Table 11.5 as “Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g., operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Panel has considered the assessment of Class 2 and has formed the view that it is an appropriate classification. The appellant can perform for multi-step tasks such as cooking, even though it is not on a daily basis. The appellant is also able to perform household chores.
More importantly, the MA also was able to observe the appellant in the time it took to assess the appellant and was able to observe that his mental state cognitive functions were intact. There was also no evidence of short term or long-term memory impairment. Such findings are largely inconsistent with class 3.
Whist it is true that the appellant self-reported that he gets easily distracted and has poor attention and concentration, this is not inconsistent with an assessment of Class 2, particularly as the MA was able to observe the applicant in the assessment.
The Panel rejects that the MA’s need to explain why he did not choose alternative classes. It is obvious from the report that the MA is aware of the differing classes and has applied his expertise knowledge and skill to discern which class was the appropriate classification following his examination.
To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the MA had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. The Appeal Panel have been unable to find any errors for reasons that are outlined above.
The Appeal Panel considers that the MA has clearly articulated on what basis he finds the appellant’s classification as to Class 2. He is not required to provide an “extensive or … detailed explanation of the criteria applied by the medical professionals in reaching a professions judgment.”[1]
[1] Stojceski v Atco Controls (deregistered) [2022] NSWPICMP 214
After considering all the submissions made by the appellant, the Panel is confirming the MAC. None of the categories in a Ferguson sense have been made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 September 2023 should be confirmed.
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