Burnell v Response Security Services Pty Ltd
[2024] NSWPICMP 558
•9 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Burnell v Response Security Services Pty Ltd [2024] NSWPICMP 558 |
| APPELLANT: | Kieran Burnell |
| RESPONDENT: | Response Security Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 9 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychiatric injury claim; whether additional evidence admissible from claimant seeking to clarify findings by Medical Assessor (MA); whether MA conflated psychiatric impairment rating scale (PIRS) categories in assessment of travel and employability; observations on purpose of Chapter 11.11 of SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and that evidence explaining motivation for behaving in a manner inconsistent with claimant’s statement of no relevance; substantive submissions regarding employability no more than conclusive self-report, observations as to function of MA; Wingfoot Australia Pty Ltd v Kocak and Lukacevic v Coates Hire Operations Pty Limited considered and applied; multiple references to Ballas v Department of Education (State of NSW) by claimant unclear in purpose or particularity and relevance doubted; Diaz v Sydney International Container Terminals Pty Ltd referred to; Held – application to admit fresh evidence rejected as evidence relied on could reasonably have been obtained prior to the medical assessment; proposed fresh evidence not prima facie probative as it was inherently contradictory and contradictions not traversed; substantive appeal regarding travel rejected; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 March 2024 the appellant, Kieran Burnell, lodged an Application to Appeal Against a decision of a Medical Assessment Certificate (MAC) issued on 7 February 2024 which had been issued by Dr Surabhi Verma, a Medical Assessor. The Medical Assessor had issued an earlier MAC dated 28 August 2023 (M1-W2523/23) in which she found that maximum medical improvement had not been reached. An application seeking a reconsideration of that MAC resulted in the matter being referred back to the Medical Assessor pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and the present appeal concerns the aforementioned MAC of 7 February 2024 (M2-W2523/23).
On 25 March 2024 the respondent, Response Security Services Pty Ltd, lodged a Notice of Opposition to Appeal against the decision of the Medical Assessor.
As the Notice of Opposition raised additional grounds of appeal, a Direction was issued on 28 March 2024, directing the respondent to lodge and serve a separate Application to Appeal Against a Decision of Medical Assessor by 5:00pm on 4 April 2024.
The respondent did not lodge a separate appeal application by 4 April 2024.
On 5 April 2024, the solicitors for the respondent emailed the Personal Injury Commission (Commission), advising: “The respondent agrees for the appeal to progress without consideration of the additional grounds of appeal raised within the Notice of Opposition”.
The appellant relies on the following grounds of appeal under s 327(3) of the 1998 Act:
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
Mr Burnell was employed as a General Duties Crowd Control Officer who commenced with the respondent in about 2016, when he was 19 years old.
The referral sought an assessment of WPI caused by a psychiatric/psychological injury that occurred on 18 May 2019.
On that day Mr Burnell was working at Gartelmann Wines in the Hunter Valley. His mother, who was also employed by the respondent, was working the same shift. During the shift the two went to investigate a group of intoxicated males, one of whom became aggressive and grabbed Mr Burnell by his throat and punched him. The scene turned into a brawl between the security guards and the other group of men. He remembered a female using her stilettos as a threat and Mr Burnell’s mother coming to rescue him and pick him up. He then witnessed his mother have a seizure in front of him. He and his mother were taken to hospital and discharged that morning. He learnt that his mother had had a seizure because she had suffered a haematoma.
Thereafter Mr Burnell became mentally disturbed and sought treatment from his general practitioner (GP). He experienced symptoms that the Medical Assessor concluded were consistent with a diagnosis of post-traumatic stress disorder, the symptoms of which were sufficiently significant to cause a co-morbid diagnosis of major depressive disorder with anxious distress.
It was indicated to him in that MAC the Medical Assessor found that Mr Burnell had not reached maximum medical improvement, but after reconsidering her MAC on
7 February 2024 the Medical Assessor found that Mr Burnell had suffered 14% 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.
Mr Burnell requested to be re-examined by a Medical Assessor who is a member of the Appeal Panel. However, as no error was found in the MAC, no re-examination was needed.
Fresh evidence
The additional evidence Mr Burnell wished to rely on consisted of a statement dated
26 February 2024 in which Mr Burnell stated that, having read the subject MAC, he wished to provide further information.[1][1] Appeal papers page 27.
Mr Burnell noted that the Medical Assessor had described his ability to travel as being in the same capacity as it was prior to the injury. He said at [4]:
“I do not drive in the same capacity as I did before the assault at work. I rarely leave the house and if I do, I am usually accompanied by my mum.”
Mr Burnell said that he explained to the Medical Assessor that he used to visit friends and go to the beach prior to his injury but “generally” he was not able to do so anymore.
He agreed that he could go to his local supermarket “if I have no choice”, but he generally avoided that because of “the way it makes me feel”. He said that he would usually go with his mother if he went to the shops.
If his mother was unable to go to the shops with him Mr Burnell said that he made sure he would go when it was quiet and take steps to avoid speaking with people and leave as soon as possible.
He said that he “only ever” went to his local supermarket which he was familiar with. He said being around people, crowds and loud noise made him feel panicked and anxious. He avoided going to new places because it made him “uncomfortable”. He usually was with his mum “in these situations”.
Mr Burnell then noted that the Medical Assessor had stated that he had been able to drive for four hours to pick up his grandmother at four hours distance (in Dubbo), and did not have any accidents or near misses.
Mr Burnell stated that the Medical Assessor had not accurately recorded that occasion and that she “missed important information” about that drive.
He explained the reason he had to pick up his grandmother was because his mother (“my carer”) had been hospitalised in an emergency. He needed to get his grandmother so she could help to take care of his young nephew and himself. The young nephew was living with Mr Burnell it would seem whilst his mother was in the hospital. He said:[2]
“I had no choice but to drive and pick and pick up my Nan. I picked her up from Dubbo. Nan obviously accompanied me on the drive on the way home, so I was no longer driving alone. I do not recall any other time since my date of injury where I have taken a long unaccompanied drive.”
[2] Appeal papers pages 28 - 29.
Mr Burnell then referred to the Medical Assessor’s history that he had gone away for Christmas to the South Coast. Mr Burnell said that he and his mother visited his grandmother for about six days around Christmas time on the South Coast.
He said that he and his mother travelled together but, as we understood him, in separate cars. Mr Burnell said:
“We drove down in two cars in a convoy because my mum had four young children in her car. We travelled together and we made stops together.”
Mr Burnell said that he was able to visit his grandmother’s house because he was with family. It was inaccurate, he said, to say that he went travelling away for a period of time “without more information about this occasion”.
Mr Burnell stated that the finding by the Medical Assessor that his ability to travel was within the normal class, but he referred to the trouble he had in leaving the house, travelling to new places and doing normal things like going to the shops without the support of his mother. He said he did “not feel normal for a 25 year old man”. He said it was very different to his experience before he had his injury.
Mr Burnell then referred to the Medical Assessor’s finding that “I can work 20 hours a fortnight and no more than one to two days in a row”. Mr Burnell explained that he had not been able to work since the injury with the one exception that he had a work trial sometime in 2021 at an Aged Care Centre. He said he had not been able to manage the work and had to stop the trial immediately.
He said he had not been able to get back to work since and noted that his GP, Dr Mafohla said, and continued to say, that he had no capacity to work. He said that he felt anxious and overwhelmed when he thought about getting back into the workforce.
He said he had problems leaving the house and in taking care of himself and he did not think that he could return to work in his current condition.
Submissions as to admissibility
Appellant
In his submissions Mr Burnell alleged that the information within his statement was not available and could not reasonably have been obtained before the medical assessment.[3] He submitted the Medical Assessor failed to take into account relevant considerations and had taken into account irrelevant considerations regarding the category of travel and employability, citing Ballas v Department of Education (State of NSW).[4]
[3] Appellant’s submissions, appeal papers at page 17.
[4] [2020] NSWCA 86.
Mr Burnell submitted that in taking a general history about travel, the Medical Assessor “seize[d] upon isolated events” to justify the class 1 rating, without referring to “other relevant considerations”.
Mr Burnell submitted that the general history of his ability to travel suggested an impairment. Mr Burnell submitted that the Medical Assessor’s reference to “isolated events” carried with it an obligation to “adequately clarify that history”.
We were referred to “paragraph 14.1 of AMA 5,” which reference may be dealt with shortly. The foreword to Chapter 11 provides:
“AMA 5 Chapter 14 is excluded and replaced by this Chapter….”
Accordingly, we fail to comprehend the relevance of that reference.
Mr Burnell further submitted that the fresh statement resolved “any inconsistent presentation pertaining to isolated events”. The Medical Assessor was required to adequately clarify the history to “resolve the inconsistencies”. Mr Burnell’s statement “resolves such inconsistencies,” it was argued, and procedural fairness dictated that those issues be ventilated.
Mr Burnell sought to tender his fresh statement “so as to ensure the full history is properly considered and irrelevant considerations not by the Medical Assessor”.
Mr Burnell also submitted that relevant considerations had not been taken into account and that irrelevant considerations indeed had been when the Medical Assessor considered the category of employability. We were again referred to Ballas.
It was submitted that the Medical Assessor “conflated multiple PIRS categories and wrongly assigned conduct to ‘employability’ when it should assessed [sic] as a distinct category”. Ballas was again referred to, and this alleged conflation was said to constitute both the application of incorrect criteria and a demonstrable error.
Mr Burnell submitted that the Medical Assessor also failed to take a history of the appellant’s employment history. It was submitted that the fresh statement provided that history and again we were referred to procedural fairness.
The fresh statement was tendered “so as to ensure the full history is properly considered and irrelevant considerations not [sic]”.
It was submitted by Mr Burnell that the MAC had been issued with an incomplete and inaccurate history being relied on by the Medical Assessor and that the fresh statement was tendered to correct and complete the history.
Respondent
The respondent resisted the application to admit this evidence.
We were referred to the provision of s 328(3) and various decisions relevant to its application.
We note the reference to Petrovic v BC Serv No 14 Pty Limited and Ors[5] but would observe that, the matter now being before the Panel, we are governed by the provisions of s 328(3) and Petrovic was concerned with the position of the gatekeeper, the delegate of the President, when considering whether fresh evidence should be allowed under s 327(3)(b).
[5] [2007] NSWSC 1156 (18 October 2007).
The respondent observed that Mr Burnell had a further opportunity to lodge additional evidence, and indeed to obtain further qualified opinion, following the issue of the MAC of
28 August 2023. That MAC had alluded to Mr Burnell’s continuing to drive in the same capacity, and that he had driven for four hours to pick up his Nan. [87]
DISCUSSION RE ADDITIONAL EVIDENCE
Section 328(3) of the 1998 provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
Firstly, the appellant has some difficulty in establishing that the evidence on which he now relies could not reasonably have been obtained prior to the medical assessment. Apart from questions of plausibility, which we will deal with later in these reasons, Mr Burnell’s account regarding his ability to travel had already been confirmed to the medicolegal expert retained by the respondent, Dr Peter Young, psychiatrist, on 5 October 2022. Dr Young said:[6]
“Mr Burnell reports that he is able to drive his car with no specific difficulties. He said he can travel to new areas unaccompanied and has, in the last six months, driven to Newcastle, Maitland and as far as Cobar to visit his grandmother. (PIRS class 1)”
[6] Appeal papers page 406.
The statement made by Mr Burnell was dated 2 March 2023, and did not comment on this history. The history taken by Mr Burnell’s own medicolegal specialist, Dr Abdul Khan, consultant psychiatrist, had been taken on 30 March 2022 – some seven months earlier than that of Dr Young. Dr Khan’s history was inconsistent with that given to Dr Young.
It will be remembered that the Medical Assessor certified on 28 August 2023 that Mr Burnell had not reached maximum medical improvement. Nonetheless, the Medical Assessor recorded as part of the history she then took:[7]
“[Mr Burnell] continues to drive in the same capacity. He drove for four hours when he had to pick up his Nan. He denied having any accidents or near misses. He denied having any difficulty when driving.”
[7] Appeal papers page 87.
As will shortly be seen, Mr Burnell did not mention such driving activities to Dr Khan on
30 March 2022, nor were they mentioned in his statement of 2 March 2023. It may be that he then did not have access to Dr Young’s report (regrettably, no s 78 Notice was lodged showing when Dr Young’s report came to the attention of Mr Burnell). Nonetheless, it can be seen that Mr Burnell did admit to the Medical Assessor on 28 August 2023 that he had driven for four hours without difficulty, and Dr Young’s report was by then available to him in accordance with Commission practice.Mr Burnell accordingly had ample opportunity to make a further statement giving additional evidence regarding the above inconsistencies prior to the relevant Medical Assessment of
7 February 2024. Indeed, he took advantage of such an opportunity and made a further statement dated 17 September 2023, after the issue of the MAC of 28 August 2023.[8] Again, however, he did not refer to the history recorded by Dr Young, let alone attempt to explain its inconsistency. In these circumstances we find that the evidence sought to be given in
Mr Burnell’s statement of 26 February 2024 could reasonably have been obtained before7 February 2024.[8] Form 10 application at appeal papers page 475: statement at page 486.
Secondly, as we indicated above, when Dr Young’s history was compared to the history the appellant gave to Dr Khan and to his statements of 2 March 2023 and 17 September 2023, the additional evidence sought to be admitted is implausible.
The history taken by Dr Khan on 30 March 2022 stated: [9]
“Mr Burnell struggles to travel anywhere on his own due to his anxiety, hypervigilance and avoidance. He relies on his mother or a close friend to accompany him.”
[9] Appeal papers page 348.
In his statement of 2 March 2023 Mr Burnell said variously:[10]
“[32] I have been described as a "social recluse" and I just stay in my room all day. I only leave my room to go downstairs to eat food that has been generally been prepared for me or for take-away.
[35] I generally do not go to the shops. If I have to, I do, however my mother generally goes to the shops on my behalf.”
[10] Appeal papers page 333.
In his further statement of 17 September 2023, Mr Burnell variously said:
“[7] I rarely leave the house and I have trouble attending busy places like shopping centres. I only go grocery shopping when I need to and I try to go at quiet times to avoid being around people as this makes me feel panicked.
[13] I spend time with my family because I live with my mum and nephew.
[14] I have not been able to return to work at all since the injury because of my trouble leaving the house, taking care of myself and feeling panicked.”
It can be seen that in neither statement did Mr Burnell specifically address the question of travel, but it may be inferred from the above that he was virtually housebound by his disorder.
In Lukacevic v Coates Hire Operations Pty Limited[11] Hodgson JA, (Handley AJA agreeing, Giles JA dissenting) said AT [78]:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP [Appeal Panel] not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[11] [2011] NSWCA 112.
We are not satisfied that Mr Burnell’s fresh statement has sufficient prima facie probative value to be admitted. He was aware, or ought to have been aware, following the issue of the first MAC of 28 August 2023 that his statement to the Medical Assessor at that point contradicted the history taken by Dr Khan, and that it was inconsistent with the attempt he made to portray himself as being virtually housebound within his statements of 2 March 2023 and 17 September 2023.
Further, he made no attempt to explain the history taken by Dr Young. We note in passing that the Medical Assessor, although referring to Dr Young’s report (although not with regard to the travel category) in her MAC of 28 August 2023, did not mention it in the subject MAC. We would observe nonetheless that the contradiction between the two medicolegal histories would have been, or ought to have been, apparent to Mr Burnell and it was one of the matters that needed to be explained to the Panel in view of his obligation to demonstrate substantial prima facie probative value. This contradiction was a matter that required to be addressed with some particularity, and it was not addressed at all.
Moreover, the additional statement did no more than concede what had been found by the Medical Assessor, but sought to put a gloss on Mr Burnell’s activities by suggesting that his motivation was relevant. As will be seen, the purpose of this method of assessment is to establish the behavioural consequences of a psychiatric disorder, and the assessment is not concerned with a person’s motivation, but rather with whether a person suffering a particular disorder is capable of carrying out an activity characterised under the Psychiatric Impairment Rating Scale (PIRS) of “travel”.
These matters affect the whole of Mr Burnell’s statement. We note his comments regarding his view about whether he is employable or not. They have no probative value, as a Medical Assessor is required to use his/her clinical expertise and experience in reaching an objective conclusion. A self-report of such a conclusive nature is of little relevance.
For these reasons, the application to admit this statement of 26 February 2024 is rejected.
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 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 submitted that the Medical Assessor had fallen into error with regard to his assessment of the travel and employability categories of the PIRS.
The MAC
As noted, the Medical Assessor did not refer to Dr Young’s report in her MAC. However she referred to the opinion of Dr Khan of 30 March 2022. Relevantly, she said:[12]
[12] Appeal papers page 19.
“1. Travel
I have noted that Dr Khan had mentioned:
‘Mr Burnell struggles with travel anywhere on his own due his anxiety,
hypervigilance and avoidance. He relies on his mother or a close friend to
accompany him.’
I have, however, noted in my assessment that Mr Burnell can drive on his own in the same capacity. He, in fact, drove for up to four hours when he had to pick up his nan. He is able to go out to the shops if he has to. I, therefore, believe that he has only minor deficit which could be attributed to the normal variation in the general population which was class 1.
2. Employability
I have noted that Dr Khan concluded:
‘Mr Burnell is unable to work due to the pervasiveness of his mental health
difficulties. He attempted to perform some work in the aged care position in a nursing home in 2021 but had to withdraw due to his debilitating anxiety.’
I agree that Mr Burnell has ongoing anxiety but given the level of impairment in other PIRS categories, I believe that he still has some capacity to engage in employment in a less stressful situation. I believe he can work less than 20 hours per fortnight with a different employer in a less stressful environment’.”The Medical Assessor also made the following findings with regard to the category of social and recreational activities in assessing a class 3 rating:[13]
“Mr Burnell reported that before the indexed incident, he used to go to the beach, go for walks and enjoyed playing video games. He has stopped going to the beach and going for walks. He reported that in the last couple of months, he has not gone for a walk even once. He plays video games for 7-8 hours to distract himself from insurmountable anxiety. He said that he no longer socialises and has not gone out with his friends at all. He, however, has virtual friends online and plays games with them. He goes out with his mum to the shops. He reported that he went away for Christmas to South Coast and stayed there for six days.”
[13] Appeal papers page 256.
SUBMISSIONS
The appellant
Mr Burnell challenged the class 1 rating for the category of ‘travel’ by firstly acknowledging the discretion that is vested in the function of a Medical Assessor, which we will refer to further when discussing the PIRS, below. Notwithstanding, he submitted that the Medical Assessor had fallen into error by stating that Mr Burnell “continues to drive in the same capacity” since the subject injury. Mr Burnell referred to various parts of the MAC and asserted that it was evident that this finding was erroneous. In making that submission, the appellant referred to “the general history taken in the MAC and the referred evidence”.
It was apparent during the appellant’s submissions that he relied to some degree on the content of his statement of 26 February 2024, which we have rejected. We propose to ignore the appellant’s references to that material. In furtherance of this particular submission, he also referred to portions of his statements of 2 March 2023 and 21 September 2023 which we have referred to above, and from which we have drawn the inference that Mr Burnell was virtually housebound. Mr Burnell described these passages as being “long-standing evidence of the appellant’s functional impairment with regard to travel in line with the PIRS criteria”.
Mr Burnell referred specifically to the history taken by the Medical Assessor that he drove for four hours to pick up his grandmother. It was submitted that the Medical Assessor had “failed to adequately evaluate the potential inconsistent presentation on the day with that of the referred evidence in accordance with paragraph 14.1 of AMA 5”.
As to the reference to the provisions of AMA 5, we repeat our ruling when discussing the appellant’s submissions as to the admissibility of the additional evidence, namely:
“We were referred to ‘paragraph 14.1 of AMA 5,’ which reference may be dealt with shortly. The foreword to Chapter 11 provides:
‘AMA 5 Chapter 14 is excluded and replaced by this Chapter….’
Accordingly, we fail to comprehend the relevance of that reference’.”
It was alleged that the Medical Assessor had “failed to obtain further relevant evidence” and that she had accordingly made a “gross overstatement” regarding Mr Burnell’s functional ability to travel. It was submitted that the Medical Assessor had made the same error in recording that Mr Burnell had gone away for Christmas to the South Coast for six days in recording her reasons regarding the ‘social and recreational activities’ category.
We were referred to the reasons given by Dr Khan for his assessment in his report, which we have referred to above.
It was submitted that it was clear in the evidence referred to the Medical Assessor that
Mr Burnell did not drive in the same capacity as he did prior to the injury. This, it was alleged, was also evident in the general history taken throughout the MAC.It was submitted that the class 1 rating was glaringly improbable and had been made where the Medical Assessor was unaware of significant factual matters. A clear misunderstanding had accordingly been demonstrated and her reasoning process had not been adequately made out. We were referred to the relevant authority, which we have discussed below.
Employability
Mr Burnell referred to the reasons given by the Medical Assessor for the class 4 rating she gave in this category, particularly her reference to the level of impairment she had given for the other PIRS categories.
Mr Burnell acknowledged that the descriptors given in the relevant table were examples and not exclusive. He acknowledged further that the Medical Assessor retained a degree of discretion and was entitled to use clinical judgement in her assessment. He submitted, referring to Jenkins v Ambulance Service of NSW as cited in Ferguson v State of New South Wales,[14] that the PIRS categories limited the boundaries of that judgement and discretion.
[14] [2017] NSWSC 887 [25 – 26].
In assigning a class 4 rating, Mr Burnell submitted that the Medical Assessor had provided inadequate reasoning. He submitted that the Medical Assessor had failed to take into account relevant considerations and instead took into account irrelevant considerations. We were referred to Ballas v Department of Education (State of NSW)[15] as authority for this proposition, and further that the Medical Assessor had “conflated multiple PIRS categories and wrongly assigned conduct to ‘employability’ when it should assessed [sic] as a distinct category”.
[15] [2020] NSW CA 86.
We were referred, relevantly, to Mr Burnell’s statements of 2 March 2023 and
17 September 2023 (although the appellant mistakenly gave the earlier date to the latter as well). We were also referred to Dr Khan’s opinion as to this category, namely:[16]“Mr Burnell is unable to work due to the pervasiveness of his mental state difficulties. He attempted to perform some work in an aged care position in a nursing home in 2021 but had to withdraw due to his debilitating anxiety.”
[16] Appeal papers page 348.
Mr Burnell submitted that in all the circumstances a class 5 rating should have been given.
The respondent
The respondent submitted, in essence, that the appeal with regard to both categories were simply an attempt by the appellant to cavil with the assessments made. There is no purpose in outlining its submissions further, as we have incorporated them to a large extent in our decision.
DISCUSSION
The Psychiatric Impairment Rating Scale
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[17] 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.”
[17] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[18]
[18] See 11.15-11.21 at Guides p 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[19] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the 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[20]. 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].”
[19] [2017] NSWSC 887.
[20] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[21] 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])…..”
[21] [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 AMS 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 Lancaster v Foxtel Management[22] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of ss 327(3) and 328(2).
[22] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
In rejecting the application to admit fresh evidence, we have also referred to matters that are relevant in the substantive appeal. We now turn to each category.
Travel
As we indicated, the case advanced by Mr Burnell through his statements of 2 March 2023 and 17 September 2023 indicated that he was, to all intents and purposes, housebound.
Mr Burnell repeated in his substantive submissions that he variously stayed in his room all day, that he generally did not go to the shops, that he only went to the shops when he had to, that he had trouble leaving the house, and that he felt panicked when he did so. As we observed, in neither statement did the appellant specifically address the question of travel but the inference was available that he was virtually housebound by his disorder, and it followed that he did not travel anywhere apart from his local shops when it was quiet. This same inference was urged on us in the substantive submissions by Mr Burnell.This evidence, and this inference, were refuted by the evidence which we have also referred to. Firstly, there was the history taken by Dr Young on 5 October 2022 that Mr Burnell was able to drive his car with no specific difficulties and indeed that he drove to new areas unaccompanied, and in the last six months had driven to Newcastle, to Maitland, and as far as Cobar to visit his grandmother. This evidence was totally ignored by Mr Burnell. He made no effort to explain it and certainly made no effort to deny it. It may be that Dr Young was mistaken in recording that Mr Burnell drove to Cobar, but if he was, Mr Burnell did nothing to correct the record.
Secondly, there was a history taken by the Medical Assessor herself in the course of her MAC dated 28 August 2023 that he continued to drive in the same capacity, and that he had driven for 4 hours to pick up “his Nan”.
In the light of this material the opinion by Dr Khan that Mr Burnell warranted a class 3 rating because Mr Burnell struggled to travel anywhere on his own because of his anxiety, hypervigilance and avoidance, has very little probative weight.
In rejecting the application to admit fresh evidence, we also referred to the misconception by Mr Burnell that his motives were relevant. Dealing with the history taken by the Medical Assessor that he drove 4 hours to pick up his Nan, the purpose of an assessment pursuant to Chapter 11 of the Guides is, as was stated at Chapter 11.11, to assess the behavioural consequences of the particular psychiatric disorder. The activities described in the six categories set out under the psychiatric impairment rating scale deal with particular aspects of that behaviour. Thus:
· If a person can look after him/herself to some degree;
· if he/she participates in social and recreational activities;
· if he/she has a functioning relationship;
· if he/she completes a retraining course; or
· if he/she is working in some capacity
- then the motive for that person doing any of those activities is of no relevance.
Mr Burnell’s motive therefore for driving unaccompanied for four hours is accordingly neither here nor there. His doing so demonstrated that his particular psychiatric disorder has not resulted in the behavioural consequence of his being unable to drive without a support person, and therefore unable to travel without supervision.
Table 11.3 sets out the class ratings for the category of travel, relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3 Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
In her Table 11.8 PIRS Rating Form, the Medical Assessor said:
“[Mr Burnell] continues to drive in the same capacity. He drove for about four hours when he had to pick up his nan. He denied having any accidents or any near misses.”
For the above reasons the class 1 rating is confirmed.
Employability
Our findings in both our decision to reject the application to admit fresh evidence, and in relation to the rejection of Mr Burnell’s appeal regarding the assessment of the ‘travel’ category, also raised the question of Mr Burnell’s credit. As we stated in rejecting the application to admit fresh evidence this question also affects the assessment of this category.
Table 11.6 provides relevantly:
“Class 4, Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5, Totally impaired: Cannot work at all.”
The Medical Assessor assessed a class 4 rating. She said in her Table 11.8 rating form:
“Based on the current symptomatology and functioning in the various PIRS category [sic], I believe that Mr Burnell cannot work more than 1-2 days at a time less than 20 hours per fortnight in a significantly less stressful ‘environment’.”
The statements relied on by the appellant were to the effect that he had attempted a work trial for three days at a nursing home, but was unable to do the work, that he continued to have no capacity for work, that there had been no significant change in his condition for a long period of time, and that he could not return to work because of his trouble leaving the house and feeling panicked. As we stated in rejecting the application to admit fresh evidence, a self-report of such a conclusive nature is of little relevance in considering the function of a Medical Assessor, which is to form and give his/her own opinion on the medical question referred to him/her by applying his/her own medical experience and own medical expertise.[23]
[23] Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43 at [37].
We note the appellant’s several references to Ballas, in the context that there had been a conflation of multiple PIRS categories, and that there had been a failure by the Medical Assessor to take into account relevant considerations and that he had indeed taken into account irrelevant considerations. We were unable to follow the precise meaning of the submission, and we were not referred to either the relevant or irrelevant considerations, nor the conflation complained of. Moreover, we were not referred to the passages in Ballas, that were said to be relevant, bearing in mind recent consideration of that case.[24]
[24] See e.g. the authorities referred to in Diaz v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 437 from [110].
Dr Khan’s opinion was unhelpful to Mr Burnell’s cause, as he simply made a general comment without considering the options that were available under Table 11.6.
Accordingly, the challenge to the class 4 rating is rejected.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 February 2024 should be confirmed.
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