Boyle v Workers Compensation Nominal Insurer (iCare)
[2021] NSWPICMP 151
•20 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Boyle v Workers Compensation Nominal Insurer (iCare) [2021] NSWPICMP 151 |
| APPELLANT: | Tracey Boyle |
| FIRST RESPONDENT: | Le Confiance Pty Ltd t/as Ten – The Emmaculate Nail |
| SECOND RESPONDENT | Workers Compensation Nominal Insurer (iCare) |
| APPEAL PANEL: | Member William Dalley Dr Patrick Morris |
| DATE OF DECISION: | 20 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – Appellant worker asserted error with respect to assessment of impairment with respect to psychological injury; the appellant submitted that the Medical Assessor had erred in the assessment of impairment in the area of function “concentration, persistence and pace”; Held - the Medical Assessor had considered the evidence and was entitled to rely on his own assessment upon examination where his conclusion differed from that of the respective independent medical experts; Ferguson v State of New South Wales applied; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 April 2021 Tracy Boyle lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Bench, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 March 2021.
The appellant relies on the following grounds of appeal under section 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 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant, Tracy Boyle, suffered a psychological injury in the course of her employment as a manager and nail technician in a business owned by Le Confiance Pty Ltd (the first respondent) trading under the name “The Emmaculate Nail”. The injury was deemed to have occurred on 6 February 2019.
On 7 November 2019 Mrs Boyle was examined by a consultant psychiatrist, Associate Professor Michael Robertson at the request of her solicitors. Associate Professor Robertson diagnosed Mrs Boyle as suffering an “adjustment disorder with anxiety and depressed mood with crosscutting features of PTSD.” Associate Professor Robertson assessed Mrs Boyle as suffering 15% whole person impairment (WPI). Mrs Boyle’s solicitors then made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) in accordance with that assessment.
On 11 June 2020 Mrs Boyle was examined by a psychiatrist, Dr Robert Kaplan, on behalf of the first respondent. Dr Kaplan diagnosed “adjustment disorder with anxiety and some depression” with an alternative diagnosis of “panic disorder”. He did not agree with the diagnosis of PTSD. Dr Kaplan was of the view that Mrs Boyle had not yet reached maximum medical improvement. The respondents declined the claim in accordance with that opinion.
The medical dispute was referred to the Medical Assessor who examined Mrs Boyle on 11 March 2021. The Medical Assessor diagnosed “persistent depressive disorder with anxious distress” as a result of the work injury. The Medical Assessor was satisfied that Mrs Boyle’s condition had reached maximum medical improvement and he assessed Mrs Boyle as having 7% WPI.
In accordance with Chapter 11 of the Guidelines, the Medical Assessor assessed Mrs Boyle by means of the Psychiatric Impairment Rating Scale (PIRS). In respect of the area of function “concentration, persistence and pace” the Medical Assessor assessed Mrs Boyle as falling within Class 2 (mild impairment). In the five other areas of function the Medical Assessor assessed:
self-care and personal hygiene – Class 2 (mild impairment);
social and recreational activities – Class 3 (moderate impairment) ;
travel – Class 2 (mild impairment) ;
social functioning – Class 1 (no deficit or minor deficit attributable to the normal variation in the general population), and
employability – Class 4 (severe impairment).
The Medical Assessor deducted one tenth pursuant to section 323 of the 1998 Act in respect of a pre-existing psychiatric/psychological disorder, anxiety and depression, to give a final figure of 6% WPI after rounding.
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 WorkCover Medical Assessment Guidelines 2006.
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 review of the MAC and supporting material disclosed no error in the assessment.
EVIDENCE
Documentary evidence
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.
Medical Assessment Certificate
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 have been considered by the Appeal Panel.
In summary, the appellant submits that the evidence before the Medical Assessor did not support his assessment that Mrs Boyle fell within Class 2 with respect to the PIRS area of function concentration persistence and pace. The appellant submitted that the appropriate assessment was Class 3 (moderate impairment).
The appellant also submitted: “It is submitted that if the above submissions are accepted by the MAP (scil Medical Appeal Panel) then the appellant’s final WPI will be 15% and therefore this will have a material effect on the claim.”
In reply, the respondent submitted that no error or adoption of incorrect criteria has been made out by the appellant and the appellant’s submissions amounted to no more than disagreement with the assessment of the Medical Assessor.
The respondent noted that a deduction pursuant to section 323 of the 1998 Act was appropriate in the circumstances.
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 Medical Assessor conducted an audio-visual examination of Mrs Boyle on 11 March 2021. The Medical Assessor noted a detailed history of the events in the workplace that led to the onset of the psychological injury and the consequences of the injury including treatment and post injury functioning.
Relevantly to the area of function which is the subject of the appeal, the Medical Assessor reported:
“When asked as to any activities the applicant partakes in that require attention and concentration, she noted there are none other than watching television. ‘I have to concentrate when I’m watching that.’ She noted, ‘I am not a reader. I like to watch TV.’ She does no crosswords or Sudoku. She is not engaged in any other activities such as knitting or sewing. I was unable to elicit any other activity she partakes in, requiring sustained attention or concentration.”
The Medical Assessor noted that Mrs Boyle considered herself as having capacity to engage in teaching within TAFE in her skills area. The Medical Assessor repeated the observations noted above when explaining his assessment of Class 2 with respect to the area of function concentration, persistence and pace. He added:
“However, she believes she would have the attention and wherewithal to work as a TAFE teacher for up to 3 hours twice per week. With a reasonable degree of medical certainty, it is the evaluator’s opinion the applicant would thus be capable of completing a basic retraining course or a standard course at a slower pace, and such is most consistent with a mild impairment.”
In her submissions the appellant noted that she had provided a statement which was in evidence which recorded:
“Prior to my injury, I had no issues with my concentration or short-term memory. I was able to keep up with the important demands of my job. I had no difficulty engaging in intellectual tasks and was able to complete them with focus and concentration. I had no issue is in my short-term memory was able to recall details well. I was always organised and on top of my duties.
Since my injury, I have found that my concentration and memory have deteriorated significantly. I experience severely impaired concentration and short-term memory. I am often forgetful about small things, and I misplace my belongings. I also find my ability to concentrate and focus on small tasks has declined severely. Sometimes, I struggle to have conversations because I feel easily confused or disoriented when speaking. I can sometimes forget what I’m saying as I’m speaking to others. I get easily distracted from a task or activity when there is noise.”
The appellant submitted that the belief in and ability to perform teaching duties within TAFE was a possibility rather than a probability and was unproven. Having regard to these matters, the appellant submitted that it would be appropriate to assess Mrs Boyle as falling within Class 3 in respect of the area of function concentration persistence and pace.
In reply, the respondent says that the submissions of the appellant amount to no more than disagreement as to the appropriate classification and do not establish demonstrable error nor the application of inappropriate criteria.
The Panel approaches the matter by examining the MAC and the supporting evidence in order to determine whether it was open to the Medical Assessor to assign Class 2 to this area of function in the light of the Guidelines.
The Guidelines provide examples of activities with respect to each area of function. Paragraph 1.6 of the Guidelines provides: “assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available medical information…”. The Guidelines provide that the activities suggested in the relevant tables are examples only. Those examples with respect to the area of function, concentration persistence and pace, are relevantly:
“Class 2 – Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectual demanding tasks for periods 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.”
The Panel notes that in Ferguson v State of New South Wales[1] (Ferguson) Campbell J said at [24]: “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”.
[1] [2017] NSWSC 887.
In Ferguson, Campbell J cited with approval NSW Police Force v Daniel Wark[2], where it was 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. ...”
[2] [2012] NSWWCCMA 36.
It is clear that Mrs Boyle was able to provide information in the course of the examination which demonstrated the capacity to listen, process and recall information. The Medical Assessor noted that the evidence was sparse as to this area of function. He did record that Mrs Boyle was able to watch movies on television and he had the benefit of observing Mrs Boyle in the course of his examination of her.
Although Mrs Boyle may have intended to communicate to the Medical Assessor that her ability to function as a TAFE teacher was merely possible rather than probable, it is clear that Mrs Boyle did not feel that her concentration, persistence and pace were so affected as to exclude this.
The Panel accepts that the Medical Assessor was entitled to give substantial weight to his observations on examination. The Panel accepts that the Medical Assessor has considered the statements of the appellant and the medical reports in evidence and has weighed those against his own observations upon examination in arriving at his assessment. It was appropriate that the Medical Assessor do so, and the Panel is satisfied that there has been no application of incorrect criteria or demonstrable error made out with respect to the assessment of the area of function. The grounds of appeal in respect of the area of function concentration, persistence and pace are not made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 March 2021 should be confirmed.
The appellant in her submissions noted the fact that assessment of Mrs Boyle as falling within Class 3 with respect to the area of function under consideration would have a material effect on the claim as Mrs Boyle would then be assessed as having 15% WPI.
The Panel does not consider that this is an appropriate submission given the nature of the review process to be undertaken by the Panel and the Panel has not considered the consequences of reassessment in the exercise of its function. However, the Panel notes that the submission does not take account of the fact that the Medical Assessor assessed a deduction of one tenth pursuant to section 323 of the 1998 Act on the basis of evidence of a pre-existing condition.
No appeal has been addressed to this part of the assessment and it was clearly open to the Medical Assessor in the light of the available evidence. In the absence of any complaint with regard to that reasoning, that deduction would of itself reduce the assessment to below 15% WPI even if Mrs Boyle were to be assessed as falling within Class 3 in respect of concentration, persistence and pace.
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