Blacktown City Council v Hurley

[2024] NSWPICMP 792

DETERMINATION OF APPEAL PANEL
CITATION:	Blacktown City Council v Hurley [2024] NSWPICMP 792
APPELLANT:	Blacktown City Council
RESPONDENT:	Catherine Hurley
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	25 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s (MA) ratings of respondent’s impairment for social and recreational activities and for concentration, persistence and pace accorded with the evidence and were correct; whether MA erred by not making a deduction under section 323(1); Held – MA’s ratings were correct and respondent did have a pre-existing condition, so section 323(1) could not be engaged; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 12 September 2024 Blacktown City Council, the appellant, 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 15 August 2024.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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 to chemicals.

5. Catherine Hurley (the respondent) was examined, on the request of her solicitors, by consultant psychiatrist Dr David Kumagaya on 22 December 2022 who advised in a report of that date that he assessed the respondent had a permanent impairment from her psychiatric injury of the order of 19% whole person impairment (WPI). Relying on that report of Dr Kumagaya the respondent claimed compensation from the appellant pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), for 19% WPI from her psychiatric injury.

6. In a dispute notice the appellant issued to the respondent on 13 October 2023, it advised the respondent that it denied it was liable to pay her the compensation she claimed.  It set out its reasons for its position, which were essentially, that the respondent did not have a primary psychological injury and that her permanent impairment was not at least 15% WPI.

7. Following the appellant’s denial of her claim for compensation, the respondent lodged an Application to Resolve a Dispute with the Personal Injury Commission (Commission) dated 12 March 2024, by which she sought the Commission determine her claim for compensation for permanent impairment from her psychiatric injury. The Commission referred the matter to one of its members, namely Ms Diana Benk. Following an arbitration between the parties Member Benk determined on 27 May 2024 that the respondent sustained a psychological injury to which her employment is the main contributing factor and that that psychological injury is a primary psychological injury that may give rise to lump sum compensation for the respondent under s66 of the 1987 Act. Member Benk also directed the matter be remitted to the President of the Commission so that it can be referred to a Medical Assessor to assess the degree of the appellant’ permanent impairment from that injury.

8. A delegate of the President of the Commission duly issued that referral on 24 June 2024 to the Medical Assessor. 

9. As mentioned earlier, the Medical Assessor issued the MAC on 15 August 2024, in response to the referral. In the MAC he certified he assessed the respondent’s permanent impairment from her injury was 22% WPI.  He conducted his assessment in accordance with the Psychiatric Impairment Rating Scale (PIRS), as detailed in paragraphs 11.11 and 11.12 and Tables 11.1-11.6 of the Guidelines. 

10. The Medical Assessor’s ratings of the respondent’s impairment in the several PIRS categories were Class 3 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 (CPP) and Class 5 for employability.  The Medical Assessor stated in the MAC that in his opinion the worker did not suffer from any pre-existing conditions or abnormalities and consequently did not make any deduction pursuant to s 323(1) of the 1998 Act when assessing the degree of the respondent’s permanent impairment from her injury. 

11. The appellant in its Appeal against the medical assessment takes issue with the Medical Assessor’s ratings of the respondent’s impairment in social and recreational activities and in CPP and also the Medical Assessor finding that the appellant did not have a pre-existing condition. 

12. The Medical Assessor provided the following reasons in the PIRS rating form within the MAC for rating the respondent’s impairment as Class 3 in social and recreational activities:

    “Ms Hurley rarely attends social or recreational events. She has stopped going to the coffee shop with her mother and no longer watches her daughter play AFL. Her last outing to a restaurant was two years ago when her family booked a private room for a surprise birthday for her. She has gone camping once with her husband in the last couple of years, choosing an isolated spot where she would not need to interact with others. There are no plans for further trips. Her husband travels to West Australia to see his family and has taken other holidays without her. Her rare outings are with encouragement from her family, and she would not do them without a support person.”

13. The Medical Assessor also detailed in the history he obtained and set out in the MAC that prior to the respondent’s injury she had worked with her mother daily and that they would go to a coffee shop near her mother’s house. It can be inferred from that that the respondent enjoyed having a coffee daily with her mother at a coffee shop. 

14. The Medical Assessor also detailed in the history he obtained that the camping trips the respondent went to with her husband were done at her husband’s encouragement. The Medical Assessor detailed that the respondent preferred to stay at home and had stopped going for walks. 

15. The Medical Assessor also referred to an assessment that psychiatrist Dr Doron Samuell made of the respondent’s impairment. Dr Samuell had examined the appellant on several occasions at the request of the appellant’s insurer, the most recent being on 25 July 2023, in regards to which he produced a report in which he advised he had assessed the respondent’s degree of permanent impairment was 6% WPI. He also advised that this impairment was “entirely attributable to non-work related matters”. 

16. The Medical Assessor noted Dr Samuell had rated the respondent’s impairment in social and recreational activities as mild. The Medical Assessor set out the explanation Dr Samuell provided for his rating, which included that the respondent went on walks, watches TV, sits outside, went on a camping holiday about a year before he assessed her, feels more comfortable on her own, and enjoys watering the garden and trying to read. The Medical Assessor noted that Dr Samuell did not mention that the respondent rarely goes out to social outings and never without support. 

17. The Medical Assessor provided the following reasons for rating the respondent’s impairment in CPP as Class 3:

    “Ms Hurley has subjective problems with concentration, attention, and memory. She can read unchallenging novels for 15-20 minutes and can watch television shows with

    relatively simple plots. She has no projects or hobbies. During my 70-minute interview, she struggled with details and event sequences. She had a notebook that she referred

    to but could not remember the name of her psychiatrist, whom she had seen several times. She occasionally needed questions restated or gentle redirection.”

18. The Medical Assessor also detailed in the history he set out in the MAC that the respondent is able to watch television serials such as Monk and can follow the characters and plots. He noted that the respondent does not engage with the internet and has no other projects or hobbies. 

19. The Medical Assessor also recorded from his mental state examination of the respondent that he found the respondent lost focus at times and struggled to recall details that caused her visible frustration. 

20. The Medical Assessor again referred to the assessment Dr Samuell had done noting that he rated the respondent’s impairment in CPP as mild, that is Class 2. The Medical Assessor recited the explanation Dr Samuell provided for his rating that included the respondent sometimes reading and at other times not being able to do so, the respondent reading books that are easy to read, and the respondent not exhibiting any cognitive dysfunction during his examination of her. The Medical Assessor commented that the respondent reads books that are less challenging than the books she previously read and can only persist with that task now for 15-20 minutes. The Medical Assessor also noted that during his assessment the respondent had evident problems with concentration and memory.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel found that none of the grounds for appeal on which the appellant relied were substantiated, and accordingly there was no need to examine the appellant.

EVIDENCE

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. Paraphrasing the appellant’s submissions so as to provide a summary they are the appropriate rating of respondent’s impairment in social and recreational activities is Class 2 because the activities in which she had engaged included camping, travelling to her doctor a few months before the assessment on public transport, and travelling to her lawyer’s office by herself. The appellant also referred to the respondent travelling in early 2023 to Melbourne with her husband to help her daughter move.

3. The appellant also submitted that a Class 2 rating in CPP would be a more appropriate rating for the respondent’s impairment having regard to what the evidence establishes are the activities in which she engages. 

4. The appellant referred to paragraph 69 of the statement of reasons Member Benk published for her determination, wherein Member Benk acknowledged the respondent had “underlying issues and co-morbidities including alcoholism and eating disorders”. The appellant submitted that “based on the medical evidence, and accepted by the Member in the determination, there was evidence of co-morbidities and underlying conditions”. The appellant submitted that “a deduction under s323 should be applied to the assessment of impairment to allow for the non-work-related pre-existing conditions”. 

5. Paraphrasing the respondent’s submissions, again to provide a summary of them, they are that the submissions the appellant made regarding the Medical Assessor’s assessment of her impairment in social and recreational activities fall well short of demonstrating any error.  The respondent noted that it does not matter whether the members of the Appeal Panel hold a different view, and for the appellant to succeed the appellant must demonstrate an error which is readily apparent from the examination in the MAC.

6. The respondent also submitted that the Medical Assessor provided detailed reasons for the rating he made of her impairment in CPP.

7. The respondent noted that the Medical Assessor obtained a history of her having no mental health problems prior to the stressors in her workplace that gave rise to her psychological injury. The respondent submitted that the appellant provided no evidence to demonstrate that the history the Medical Assessor obtained is inaccurate. The respondent also referred to Dr Samuell’s statement in his report of 27 September 2020 that there is no history of psychological difficulty. The respondent submitted there is no basis on which the Medical Assessor could make a deduction under s 323.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. The examples provided in Table 11.2 of the Guidelines for a Class 2 and Class 3 impairment in social and recreational activities are:

Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

1. The appellant’s submission to the effect that the Medical Assessor erred when rating the respondent’s impairment in social and recreational activities because he did not have had regard to the respondent’s ability to go to her doctor by herself and the respondent’s ability to travel to her solicitor’s office for the purpose of the Medical Assessor’s assessment, is rejected. Those activities do not involve any conduct on the part of the respondent relevant to her engagement in social or recreational activities. Further, the Medical Assessor properly characterised the conduct of the respondent’s use of public transport as falling within the PIRS category of travel. He was correct to do so. Further, he was also cognisant of the fact that the respondent travelled to her solicitors and did so by taxi. He also characterised the respondent’s use of a taxi as relating to her function in travel. He was also correct to do so.

2. The respondent’s trip to Melbourne when accompanied by her husband was to assist their daughter to move. That cannot be characterised as conduct of the respondent falling within the PIRS category of social and recreational activities. It also relates to the respondent’s function in travel. Even if it were to be characterised as somehow relating to the respondent’s function in social and recreational activities, it was a single event, that is a rare thing, which she did with the support of her husband.

3. The Appeal Panel considers the respondent’s engagement in social and recreational activities is rare and done only with her family. The Medical Assessor was correct to correlate the history he obtained relating to the respondent’s function in social and recreational activities with an impairment of the severity described by the examples for a Class 3 impairment in Table 11.2. As the Medical Assessor explained, the respondent rarely attends social or recreational activities. 

4. The Appeal Panel discerns no error in the Medical Assessor’s exercise of his clinical judgment and based on the history he obtained by rating the respondent’s impairment in social and recreational activities as Class 3. The history he obtained accorded with the evidence before him and in any event, there is no suggestion made by the appellant that it contained error.

5. The Appeal Panel consequently finds that the Medical Assessor made no error with his rating of the respondent’s impairment in social and recreational activities. Further, his assessment was based on the correct criteria, that is the criteria set out in Chapter 11 of the Guidelines.

6. The examples provided in Table 11.5 of the Guidelines for a Class 3 and Class 4 impairment in CPP 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 (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

1. The Appeal Panel does not accept the appellant’s submission that a Class 2 rating of the respondent’s impairment in CPP is more appropriate. The history the Medical Assessor detailed in the MAC relating to the respondent’s CPP and the reasons he provided in the PIRS rating form correlate with an impairment best fitting the examples provided in Table 11.5 for a Class 3 impairment, and not a Class 2 impairment. The fact that the respondent can only read unchallenging novels for 15-20 minutes and watch television shows with simple plots reveal that she cannot focus on intellectually demanding tasks for up to 30 minutes, or close to 30 minutes. 

2. The fact that she needed to rely on a notebook and exhibited difficulty recalling details and becoming frustrated during the Medical Assessor’s examination of her also confirms she has a moderate impairment in CPP. It can be inferred from that, that the respondent would have difficulty following complex instructions and undertaking any task that would require any degree of concentration, such as reading and following and pattern for making clothes, tapestry or knitting. That squarely accords with a Class 3 impairment.

3. The Appeal Panel also does not accept the appellant’s submission that the Medical Assessor was wrong not to find the respondent had a pre-existing condition and that the Medical Assessor, consequently, was wrong not to make a deduction under s 323(1) of the 1998 Act for a proportion of the respondent’s impairment that is due to a pre-existing condition. The appellant referred to paragraph 69 of the Statement of Reasons of Member Benk, wherein Member Benk said “I appreciate the [appellant’s] arguments that the [respondent] has numerous other co-morbidities including alcoholism and eating disorders”. The Member also went on to say that the symptoms from those co-morbidities were only medically verified and “pronounced” after the respondent was exposed to the stressor in her workplace that resulted in her suffering psychiatric injury. The Member also found that the clinical notes relating to the respondent did not disclose the respondent had any symptoms or diagnoses prior to the occurrence of these stressors.

4. Nothing in the material before the Appeal Panel, which is the same as the material that was before the Medical Assessor, with the exception of the parties’ respective submissions relating to the appeal, indicates the respondent had any pre-existing condition that affected her psychiatric health. The Medical Assessor was accordingly correct to find that the respondent did have a pre-existing condition. Section 323(1) could not therefore be engaged. 

5. The Medical Assessor obtained a history that the respondent currently limits her alcohol consumption to one standard drink weekly and has never had a problem with alcohol excess, despite being taken to hospital with an alcohol overdose. There is no evidence to contradict that history. That history reveals that the respondent does not have an alcohol use disorder, which is what the Medical Assessor found. Her alcohol consumption does not affect her impairment from her psychiatric injury.

1. The history the Medical Assessor obtained also included that the respondent was comfort eating after injury, with an increase in her weight. The Medical Assessor noted that subsequently the respondent restricted her food and then stopped eating such that her weight fell to 55kg, with that now having recovered to 57kg. The Medical Assessor obtained a history that the respondent’s BMI is 17.2 which is in the underweight range. The Medical Assessor had regard to that when rating the respondent’s impairment in self-care and personal hygiene, specifically saying that the respondent “is food hyper-restricting and has lost significant weight”.  In other words, the Medical Assessor found that the respondent’s current eating habits are as a consequence of her psychiatric injury. The Appeal Panel, which is an expert panel that includes two psychiatrists, agrees with that conclusion.

2. Hence, there is no merit in the appellant’s submission insofar as the appellant submits that the Medical Assessor should have disregarded any “co-morbidities” the respondent had at the time of assessment. In any event, even if the respondent’s eating restriction was not a symptom of her injury, which the Appeal Panel is not finding but merely postulating in arguendo to explore this hypothetical, it would still be a factor the Medical Assessor was required to take into account when assessing the degree of the respondent’s permanent impairment as it would fall in the first category of matters described at [70] and [126] of Secretary, NSW Department of Education v Johnson [2019] NSWCA 321.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 15 August 2024 should be confirmed.