Brewer v Secretary, Department of Communities and Justice
[2024] NSWPICMP 63
•9 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Brewer v Secretary, Department of Communities and Justice [2024] NSWPICMP 63 |
| APPELLANT: | Lee Patricia Brewer |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 9 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the Psychiatric Impairment Rating Scale; State of New South Wales v Kaur, Ferguson v State of New South Wales, and Ballas v Department of Education considered; travel not limited to driving; assessment with respect to concentration, persistence and pace was glaringly improbable; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 November 2023 Lee Patricia Brewer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 October 2023.
Ms Brewer 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 was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds 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).
RELEVANT FACTUAL BACKGROUND
Ms Brewer was employed by the Secretary, Department of Communities and Justice (the Secretary) as a case worker. She suffered a psychological injury which is deemed to have occurred on 25 November 2019. After the injury she returned to work for about six months but ceased in November 2020 after which she retired.
Using the Psychiatric Impairment Rating Scale (PIRS), the Medical Assessor assessed 7% whole person impairment (WPI). She assessed Ms Brewer in class 1 for travel and class 2 for self care and personal hygiene, social functioning, and concentration, persistence and pace. She assessed Ms Brewer in class 3 for social and recreational activities and class 4 for employability.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Brewer to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
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 MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Brewer noted the assessments made by Dr George, qualified on her behalf, and Dr Vickery, who examined her at the request of the Secretary, and said that the Medical Assessor erred in assessing her in class 1 for travel, class 2 for concentration, persistence and pace and class 4 for employability.
With respect to travel, Ms Brewer said, self-evidently, assessment in class 1 for travel was an error because she forces herself to drive only occasionally and is very cautious.
Ms Brewer said that on the Medical Assessor’s own history, she was no longer capable of reading, which was, on its face, at least moderate impairment. He said that there was no are no reasoning for assessing her as able to work 20 hours a fortnight and that the appropriate assessment was in class 5.
In reply, the Secretary submitted that the assessments made by the Medical Assessor were open to her.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales,[1] Davies J considered that the form of words used in s 328(2) of the 1998 Act – ‘the grounds of appeal on which the appeal is made’ – was intended to convey that the appeal is confined to the errors identified by a party in their submissions. We have only considered those grounds specifically raised by the appeal.
[1] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a very detailed history of the events leading to the injury and summarised Ms Brewer’s personal history. She noted:
“She has some friends from her workplace, but only catches up with them on rare occasions.
She likes to paint landscapes, but since being off work, she has not been able to paint or even read. She, at times, tries to do some gardening to try to relax.”
When describing present symptoms, the Medical Assessor said:
“Ms Brewer reported that overall her mental health has slightly improved. She continues to feel low and has to make an effort to look like she is enjoying. She at times, has to put a façade of being able to enjoy things. She finds it exhausting to be around people…
She has been socially avoidant and even though she still gets invited for parties, she does not go out and attend these parties. She said that she once went to Brisbane to see her partner’s son and their families and to visit her partner’s son.
She added that she used to do oil paintings before, but has not been able to do any paintings now.
She feels anxious in crowded places and in meeting unknown people like this appointment. At times, the panic attacks are unprovoked and nothing seems to help. She tries to cope by breathing exercises, meditation and tries to talk herself out of the panic attack.
Her memory is fuzzy at times and is often forgetful. She has to check whether she has her belongings like wallet, phone, etc. ...”
Under the heading “Social activities/ADL” and relevantly to the impugned PIRS tables, the Medical Assessor said:
“She used to enjoy meeting friends for book club and used to read at least one book every week. She used to go to the movies and catch up for drinks. She also used to watch plays with her friends. She reported that she has stopped doing any of that now. She is unable to read books and lacks motivation to do anything. She reported that she last saw her friends years back. She added that most of her friends work with her and she does not like talking about work. She has stopped going out with her friends as crowds frighten her. She still leaves the house but only with her partner. She at times will crotchet and at times will do the gardening to distract her.
She is able to drive and force herself to drive occasionally. She said that she is a safe driver and in fact, her partner said that she is overly cautious. She denied having any accidents or near misses when driving.
She reported that her mental health has impacted her relationship with her partner. Her partner has to continuously check on her to see if she is okay. She has lost most of her friendships but is still in touch with a friend or two.
She reported that her attention and concentration is impaired and her memory is not as sharp as before. She has to watch the movies in parts as she loses focus easily. She reported feeling restless and getting distracted very easily. She is, however, able to crochet without any difficulty.
Ms Brewer’s current symptoms would impact her functioning in her professional life. She struggles with attention, concentration, and short-term memory, which means she can only work 20 hours per fortnight.”
The Medical Assessor summarised the medical evidence in the file and set out where she differed from Dr George, saying:
“Travel: Ms Brewer reported that she is able to drive as before. She denied having any accidents or near misses when driving and she herself stated that she was a safe driver, which means that she does not have any significant impairment to be labelled as Class 2 or mild impairment.
I have marked her concentration, persistence and pace as mild impairment as she can cook without much difficulty and can crochet as well. She has not been able to paint landscapes, which is possibly due to a lack of motivation and some difficulty in her concentration. I believe mild impairment is a better indicator of her difficulties with concentration.
Employability: Ms Brewer's current symptoms impact her functioning in her professional life. I believe she can still work 20 hours per fortnight, but in a supported atmosphere and definitely in a different job setting.”
She summarised where she differed from Dr Vickery:
“Social and Recreational Activities: There is moderate impairment as she has stopped doing any of the recreational activities like going and meeting friends for a book club, reading a book every week, going to the movies and catching up for drinks with her friend. The only activities that she engages in are crocheting and gardening.
Social Functioning: Although her partner has been supportive and she enjoys a close relationship with her family members, there has been a strain on the relationship. She has also lost friends and friendships because of her mental health symptoms.
Concentration, Persistence and Pace: There is mild impairment in concentration and persistence as she has to watch movies in parts, she loses focus easily, gets distracted easily, and feels restless.
Employability: I believe that she has only limited capacity to engage in full-time work and her current capacity seems to be that she can only work 20 hours per fortnight.”
Assessment under the PIRS
The Medical Assessor provided a more detailed description of the injury than was necessary. Her task was to reach a diagnosis and to make an assessment of Ms Brewer’s permanent impairment on the day that she presented for examination,[3] setting out the reasoning leading to that assessment.
[3] Guidelines paragraph 1.6
In State of New South Wales (NSW Department of Education) v Kaur[4] Campbell J said:
“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.’”
[4] [2016] NSWSC 346.
The Medical Assessor was required to engage with the material in the file and to explain the reasons for her assessment, rather than focussing on how it differed from other assessors.
We note that the medical evidence in the file is somewhat dated. Dr George saw Ms Brewer and reported in November 2021. All of the reports from Ms Brewer’s treating practitioners pre-date that. Dr Vickery saw Ms Brewer in June 2022. Ms Brewer’s statement is dated 16 June 2023 but the Medical Assessor did not say that she had regard to it.
It is important to remember that each of the PIRS scales measures a different domain and particular conduct must be applied to the appropriate scale – Ballas v Department of Education[5] (Ballas). Bell P and Payne JA said:
“Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
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.”[6]
[5] [2020] NSWCA 86.
[6] At [93]-[94].
In Ferguson v State of New South Wales[7] 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.”
[7] [2017] NSWSC 887 at [25].
Travel
The Medical Assessor assessed Ms Brewer in class 1, saying:
“She is able to drive and forces herself to drive occasionally. She said that she is a safe driver and in fact, her partner said that she is overly cautious. She denied having any accidents or near misses when driving.”
Both Ms Brewer’s submissions and the Medical Assessor focussed only on driving when assessing travel. The examples in the PIRS show that travel is not limited to driving and that the table measures a worker’s ability to leave home and go to new places. Class 1 is relevant to someone who “can travel to new environments without supervision” and assessment in class 2 is relevant for a worker who can “travel without a support person, but only in a familiar area”. A worker who “cannot travel away from own residence without support person…” is assessed in class 3.
The Medical Assessor did not set out what she had considered to reach her assessment, other than Ms Brewer’s history about driving. In particular, she did not say that she had considered Ms Brewer’s statement dated 16 June 2023, prepared only a few months before the assessment. The statement shows that Ms Brewer’s main activity is travel. She said:
“My main activity is travelling with my partner is travelling in a caravan [sic]. We have been on several trips away however do not enjoy it. I do not enjoy staying in the caravan parks and being near other people in the parks . We have agreed to sell the caravan and continue to travel but we will stay in cabins or motels and see how that goes.”
Even if Ms Brewer is an anxious driver, she is able to leave her home and travel with her partner. The fact that her main activity is travelling supports assessment in class 1.
Concentration, persistence and pace
The Medical Assessor assessed Ms Brewer in class 2 and said in the PIRS rating form:
“She reported that her attention and concentration is impaired and her memory is not as sharp as before. She has to watch movies in parts as she loses focus easily. She reported feeling restless and getting distracted very easily. She is, however, able to crochet without any difficulty.”
The Medical Assessor was required to assess Ms Brewer’s ability to concentrate, maintain concentration and complete tasks within an appropriate time frame. She did not seek to compare or contrast Ms Brewer’s ability to concentrate with her ability to participate in the examination. The brief comment in the PIRS rating form is at odds with Ms Brewer’s statement – recorded in the MAC – that she formerly read at least a book a week but is now unable to read and lacks motivation to do anything is not consistent with mild impairment.
Ms Brewer’s statement indicates a significant reduction in her ability to concentrate and maintain concentration. She said that she finds it hard to concentrate now to do oil painting. She said:
“I used to read at least a book a week and belong to a Book Club. I no longer do any reading. I find that when I go to read anything, even a magazine or the newspaper I cannot concentrate, and my mind wanders off. I get stuck on the same page.”
The reduction in reading from being an avid reader to not reading at all is significant though the Medical Assessor had no regard to it in her reasons for assessment.
Under the heading Personal History, the Medical Assessor noted that Ms Brewer had significant difficulties with reading – “She likes to paint landscapes, but since being off work, she has not been able to paint or even read.” She failed to address this further in her PIRS assessment of concentration, persistence and pace.
The Medical Assessor focussed on Ms Brewer’s ability to “crochet without any difficulty” – perhaps because of the example of being unable to follow a pattern in class 3 of the PIRS. It is not apparent that the Medical Assessor sought detail as to whether Ms Brewer undertook simple crochet or followed complex patterns. Her statement that “I knit and crochet while I am sitting in front of the tv at night or when I am a passenger in the car while my partner is driving” strongly suggests the former. An ability to crochet does not, of itself, indicate that Ms Brewer suffers only a mild impairment of concentration.
The Medical Assessor relied on Ms Brewer’s ability to “cook without much difficulty” as being relevant to the assessment of concentration. That is an error of the kind identified in the passage from Ballas quoted above because the ability to prepare food and eat regularly is properly assessed as self care and personal hygiene.
We consider that the Medical Assessor’s assessment of concentration, persistence and pace is in error and is not merely something over which reasonable minds may differ. The appropriate assessment is class 3, evidencing a moderate impairment.
Employability
Ms Brewer retired in 2020 and is now past the age at which she can receive the age pension. However, she said in her statement that she had intended to work into her seventies.
The Medical Assessor said:
“Ms Brewer’s current symptoms would impact her functioning in her professional life. She struggles with attention, concentration, and short-term memory, which means she can only work 20 hours per fortnight.”
Ms Brewer submitted that the conclusion was not supported by reasoning and that it is contrary to the evidence that she has not worked since November 2020. She did not offer any further submissions in support of assessment in class 5.
The Medical Assessor was required to assess if Ms Brewer was capable of employment from a psychiatric perspective, regardless of the likelihood of her returning to work.
In her statement, Ms Brewer said:
“I got back to full time work but the feelings of anxiety and fears for my safety returned . I felt there was a total lack of support for caseworkers and absolutely no sense of duty of care by upper management...
My doctor advised me to go back on Workcover leave as I was so distressed but I told him I'd take my sick leave as Workcover itself is stressful and I didn't feel up to coping with that either. After weighing everything up and the likelihood of permanent damage I decided to retire.”
A report from Ms Brewer’s rehabilitation provider dated 14 October 2020 shows that Ms Brewer had gradually increased her hours and was anticipated to return to full time hours. The report noted that her general practitioner, Dr Watson, had certified her fit for pre-injury hours, subject to being able to park under the building. Dr Watson’s notes in the Application to Resolve a Dispute are current only to September 2020 and do not record discussions about Ms Brewer stopping work.
Dr George assessed Ms Brewer in class 5 but his reasons do not support assessment in that class, being based on Ms Brewer’s belief rather than his assessment. He said:
“She does not believe that she could work in a full-time position again. She believes that she could struggle in a part-time position because she has lost confidence and does not feel particularly safe in public or in potential workplaces. She struggles with attention, concentration and short-term memory and she struggles in relating to others. Class 5.”
We consider that assessment in class 4 was open to the Medical Assessor in the exercise of her clinical judgement.
Conclusion
The PIRS scores arranged in ascending order are 1, 2, 2, 3, 3 and 4. The aggregate score is 15 and the median score is 2.5, rounded to 3. Under Table 11.7, that converts to 15% WPI.
For these reasons, we have determined that the MAC issued on 13 October 2023 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: | W4369/23 |
Applicant: | Lee Patricia Brewer |
Respondent: | Secretary, Department of Communities and Justice |
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 Surabhi Verma 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) |
| Psychological injuries | 25.11.19 | Chapter 11 | 15 | 0 | 15 | |
| Total % WPI | 15% | |||||
0
6
0