Burwood City Council v Bruzzese
[2024] NSWPICMP 469
•4 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Burwood City Council v Bruzzese [2024] NSWPICMP 469 |
| APPELLANT: | Burwood City Council |
| RESPONDENT: | Sonia Bruzzese |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 4 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from employer of whether Medical Assessor (MA) had failed to adequately consider extensive surveillance reports; whether further surveillance reports should be admitted as fresh evidence; whether MA had erred in the class rating assessed for each category of the psychiatric impairment rating scale (PIRS); Western Sydney Local Health District v Chan, Marina Pitsonis v Registrar of the Workers Compensation Commission, Ethnic Affairs v Wu, Bayside Council v Ware, and Bunnings Group Ltd v Davis; Held – application to admit fresh evidence refused; no explanation as to why it could not have been obtained prior to the medical assessment; no necessity for an MA to refer to every document; employer submissions speculative and irrelevant at times; observations on limits to MA’s jurisdiction regarding credit; Medical Assessment Certificate revoked to reduce employability and reduce entitlement of permanent impairment from 22% to 19%. |
BACKGROUND TO THE APPLICATION T Burwood City Council O APPEAL
On 5 October 2023 Burwood City Council, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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
On 11 August 2023 a Certificate of Determination was issued and Consent Orders were entered into. On 21 August 2023 an amended referral was made seeking a WPI caused by a psychological/psychiatric injury on 3 February 2021.
The Consent Orders made were made by Member Cameron Burge. We observe that the Orders contained notations:[1]
“Notations
A. The applicant agrees to withdraw the following allegation, and to not reinstate it in these or any subsequent proceedings relating to her psychological injury;
i. That after the applicant walked out of the dismissal meeting on 26 February 2020 she heard Ryan Blouin, or someone else connected with the respondent, laughing.
B. The parties’ rights are reserved in respect of any factual disputes that have been raised in these proceedings during any subsequent hearing relevant to the issues of work capacity and the need for medical treatment.”
[1] Appeal papers page 64.
Ms Bruzzese (respondent worker) was employed by the appellant employer as a swimming instructor between 27 October 2015 and 26 February 2020. She complained of a number of issues whilst working as a swimming instructor. The Medical Assessor noted that two long standing members of staff left employment during 2019 which she thought was because they were not favoured by a new manager.
She had some physical health problems which led to an application for alternative roles which did not require her to be in the pool. This was unsuccessful and Ms Bruzzese felt unfairly treated and bullied.
She felt that the younger staff were being employed in favour of the older staff. (She was born in 1976.)
In late 2019 Ms Bruzzese developed symptoms of increased anxiety. She was offered fewer shifts at the swimming pool in early 2020 and then she was told at a meeting on 26 February 2020 that she would not be offered any more shifts.
This caused her to consult her general practitioner (GP) as a result of the physical and psychological symptoms that then ensued.
The Medical Assessor assessed 22% 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.
The appellant employer sought that the worker be re-examined by a Medical Assessor who was a Member of the Appeal Panel. A re-examination was not required however, as the issues pertain to the construction of the evidence before the Medical Assessor, particularly the effect of surveillance evidence which Ms Bruzzese responded to, the request is declined.
FRESH EVIDENCE
The appellant employer applied to introduce fresh evidence in the form of two surveillance reports from Worksite Investigations dated 29 August 2023 and 20 September 2023 respectively.
The appellant employer referred to the provisions of s 328 (3) of the 1998 Act and an authority which it described as “Haider”, which we assume was a reference to Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158. It submitted that it had already obtained four surveillance reports which were in evidence, and that the additional reports were not available at the time of the referral to the Medical Assessor or at the time of the medical assessment on 28 August 2023. It submitted further that the evidence, being more contemporaneous with the medical assessment, would result in at least one of the class ratings in the Psychiatric Impairment Rating Scale (PIRS) categories being reduced.
We were referred to passages from the MAC that were said to be inconsistent with the surveillance video footage, and reference was made to the activities observed as Ms Bruzzese went about her business on the following dates:
·20 August 2023;
·22 August 2023, and
·13 September 2023.
Ms Bruzzese objected to the application. She submitted that the further evidence contravened the object of the scheme as provided by s 42 of the Personal Injury Act 2020 (the 2020 Act). She also submitted that the appellant employer had elected to wait until after the medical assessment to tender yet more surveillance material, for which there was no explanation offered as to why it had not been obtained earlier. Ms Bruzzese noted that the surveillance footage had been obtained prior to the medical assessment, except that of 13 September 2023. She submitted that the Consent Orders by which the matter was remitted to the Medical Assessor had been obtained on 11 August 2023, and that there had been ample time to obtain further surveillance material between 3 June 2023, when the employer received its last surveillance report, and 11 August 2023.
Ms Bruzzese submitted that the appellant employer’s conduct was “essentially an abuse of process and not that of a model litigant.” Ms Bruzzese submitted that the fresh evidence recorded her driving and attending shops, and at a medical centre. These sort of activities had been recorded previously and were before the Medical Assessor at the time of the assessment.
Discussion as to fresh evidence
Section 42(1) of the 2020 Act provides:
“(1) The ‘guiding principle’ for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Section 328(3) of the 1998 Act 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.”
Whilst the submissions made by Ms Bruzzese that the motives of the appellant employer in obtaining this surveillance evidence were capable of being misconstrued, we do not agree that the employer’s conduct constituted an abuse of process, as s 328(3) gives it a right to apply for the admission of fresh or additional evidence, which may or may not be granted.
As indicated, s 328 (3) provides that fresh evidence is not admissible relevantly where it could reasonably have been obtained prior to the medical assessment. No explanation was advanced by the appellant employer as to why there had been a delay of over one year between May 2022 and 11 August 2023 before surveillance was obtained. There were no specific circumstances that suggested that the fresh evidence would change the outcome of the case: The subject surveillance reports evidenced the same pattern of conduct the claimant was seen to be engaged in by the earlier reports that were before the Medical Assessor. We are consequently not satisfied that this kind of surveillance could not reasonably have been obtained prior to the medical assessment.
Further, the appellant employer was alive to the danger that natural justice and procedural fairness might not be complied with if the fresh surveillance reports were admitted, and it thus suggested the procedure where the claimant be given an opportunity to put on a statement. We have copied s 42 of the 2020 Act above, and, were the appellant employer’s suggestion applied generally, it could very well lead to delays that would prevent the application of the guiding principle, the quick and cost-effective resolution of medical appeals. Such a procedure would also compromise the provisions of s 326(1) of the 1998 Act, that a MAC be “conclusively presumed to be correct.”
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 MAC
The medical assessment occurred on 28 August 2023. The Medical Assessor took a consistent history of the injury. Ms Bruzzese described a persistently changeable mood with periods of irritability, frequent sadness and some periods of happiness. She described persistently low energy and motivation for activities, obtaining little enjoyment from previously enjoyable activities. The Medical Assessor noted:[2]
“… She has not been swimming for two years and no longer attends a gym.”
[2] Appeal papers page 53.
The Medical Assessor noted that there had been a “significant increase in her use of alcohol over the last two years,” noting an estimate of one and a half bottles of whiskey per week, a craving for alcohol and continued indulgence notwithstanding she was developing physical health problems such as a fatty liver. Her use of alcohol, the Medical Assessor recorded, “has had an adverse effect on important relationships with recurrent arguments with family members.” She felt her general health had deteriorated.
In relating Ms Bruzzese’s activities, the Medical Assessor said:[3]
“Ms Bruzzese describes a general social withdrawal over the last three years. She goes to shops several times per week for necessities and goes to a larger shopping centre with her elder daughter monthly. She supports her younger daughter with her swimming training, and goes to the national championships each year, this year going to the Gold Coast in April.”
[3] Appeal papers page 54.
On mental state examination at [5] of the MAC, the Medical Assessor found her to present with “slightly unkempt hair,” and manicured nails which Ms Bruzzese said she had done monthly on the advice of her GP otherwise she tended to bite them. Her affect showed “appropriate variability” and her mood was “subjectively changeable and objectively there was significant change depending on the content of our discussion though overall Ms Bruzzese’s mood state was depressed with increasing anxiety and frustration.” The Medical Assessor noted that she “appeared to lose concentration at times and had to be redirected or reminded of questions. Subjectively she described her concentration as impaired with associated poor memory.”
Under the heading “consistency of presentation” the Medical Assessor said:
“The history provided by Ms Bruzzese to two different assessors has been generally consistent. After reviewing covert surveillance material Dr Neal [sic][4] was of the view that Ms Bruzzese was providing a somewhat unreliable history.”
[4] The Medical Assessor continued to mis-spell Dr Neale’s name throughout his MAC.
At [10c] of the MAC, the Medical Assessor made a detailed examination of the medical material before him. He noted that Dr Massoud had recorded that Ms Bruzzese’s marriage had broken down “as a consequence of the health problems and that despite some stabilisation in his symptoms she had not been able to maintain employment.”
In reviewing the opinion of Dr Khan, the Medical Assessor noted the assessment of 22% WPI. The Medical Assessor said:
“In December 2022 Dr Khan responds to a number of points raised following a report by psychiatrist Dr Neal. He notes the significant change in whole person impairment assessment by Dr Neal between her original assessment report and a supplementary report which was completed after Dr Neal re-assessed Ms Bruzzese in August 2022 and was provided with surveillance material. On review of Dr Neal’s reports and other material Dr Khan maintains his previous opinion with regards the nature of Ms Bruzzese’s mental health problems, causation, degree of impairment and prognosis.
My assessment of Ms Bruzzese is similar to that of Dr Khan.”
The Medical Assessor then considered the reports of Dr Neale. He said that in the report of September 2021:
“…Dr Neal completes a whole person impairment rating scale on the 6th of September 2021 and gives a final percentage figure of 22%. This rating is similar to that of Dr Khan in February 2022….”
He noted the later reports, saying:
“In August 2022 Dr Neal re-assesses Ms Bruzzese and is provided with information from covert surveillance carried out on several occasions in late 2021 and 2022. Dr Neal records Ms Bruzzese as having continuing symptoms affecting her mood and anxiety, and that Ms Bruzzese reported a deterioration over the preceding year, though objectively she appeared to have improved. Dr Neal explores with Ms Bruzzese some of the contents of the material she had been provided with. Dr Neal was of the opinion that Ms Bruzzese continued to suffer from an adjustment disorder with mixed anxiety and depressed mood.
In view of the material provided to her and re-examination of Ms Bruzzese, Dr Neal expresses the view that Ms Bruzzese is providing a somewhat unreliable history. Dr Neal is of the view that Ms Bruzzese would be able to work at reduced hours in a less stressful position compared to her preinjury role. Dr Neal completes a whole person impairment rating again which gives a final score of 7%.
I differ from Dr Neal in that I believe the most appropriate diagnosis for Ms Bruzzese is that she has a persistent depressive disorder rather than an adjustment disorder. This is due to the constellation of symptoms and chronicity. A diagnostic requirement for an adjustment disorder is that ‘The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder’. Ms Bruzzese’s psychological disturbance does meet criteria for another mental disorder – persistent depressive disorder co-morbid with an alcohol use disorder.
Dr Neal gives a rating of mild impairment in social and recreational activities. I specifically asked Ms Bruzzese about attending a gym as indicated in the surveillance material, and she commented that pictures taken were on the last day that she went to a gym, 13th March 2022, and had not been back since. The surveillance material photographs show Ms Bruzzese siting alone at a swimming pool or accompanied by her daughter when shopping. She also commented to me that in surveillance pictures taken of her shopping on consecutive days she was wearing the same clothes indicative of reduced self-care. The surveillance report of 12th March 2022 notes Ms Bruzzese having lunch in a café with her daughter and two other women. In my view the activities carried out by Ms Bruzzese are either with members of her immediate family or on her own with little or no interaction with other people. Available evidence indicates that she rarely has social contact with others. In my view this equates to a moderate impairment.
Dr Neal makes an assessment that Ms Bruzzese has no deficit or a minor deficiency which is normal in the population with regards to travel noting that she can drive independently and travelled by air earlier this year with family. In my view, Ms Bruzzese has mild impairment in travel as she is limited to driving independently in familiar areas only and requires support if going beyond that. She describes impairment in her driving due to poor concentration which led to a minor accident in recent weeks.
Dr Neal rates a mild concentration impairment and describes Ms Bruzzese as having some subjective concentration and memory problems though is able to concentrate on a movie or television programme. There were no signs of poor concentration at interview. At interview with myself there were signs of impaired concentration and Ms Bruzzese described inability to read beyond newspaper articles on her phone. In my opinion this indicates a moderate impairment in concentration, persistence, and pace.
Dr Neal assesses Ms Bruzzese as capable of working in a low stress environment with few colleagues, or from home, up to 20 hours per week. In my opinion the degree of impairment secondary to the constellation of chronic symptoms of mental disorder, including a significant alcohol use disorder, is not compatible with employment. This appears to align with the opinion of Dr Massoud as per his report of 7th July 2022 who has known Ms Bruzzese through the course of this episode of ill health.”
SUBMISSIONS
The appellant employer
The appellant employer firstly submitted that the Medical Assessor had fallen into error as he “failed to give any or proper consideration to the evidence in the proceedings ….”. The appellant employer mentioned particularly the surveillance evidence and the activity identified in the worker’s bank records. It was also submitted that the Medical Assessor had failed to give any or proper consideration to the medico-legal reports of Dr Alice Neale, the consultant psychiatrist retained by the appellant employer.
The appellant employer submitted that this body of evidence documented “a sustained level of activity and functioning inconsistent with the level of impairment assessed by [the Medical Assessor], who had not “objectively considered or adequately engaged with the material itself.”
We were referred to the alleged inconsistencies, in particular the evidence that Ms Bruzzese was in receipt of a carer’s allowance and that her youngest daughter had an intellectual disability for which Ms Bruzzese was in receipt of National Disability Insurance Scheme (NDIS) payments in addition to the carer’s allowance. Reference was also made to the fact that the youngest daughter participated in the Australian Governments Local Para Champions Program in its swimming division. It was submitted that the level of care and assistance provided for that daughter was inconsistent with that assumed by the Medical Assessor. It was further submitted that the details of this aspect of the claimant’s activities were inconsistent with the assumptions on which the Medical Assessor made his findings. These details, it was submitted, were not disclosed to the Medical Assessor.
It was also submitted that the financial records that were before the Medical Assessor demonstrated that Ms Bruzzese’s financial records demonstrated that she visited various suburbs from the information on her credit card. This was inconsistent with the finding by the Medical Assessor that she spent most of her time at home.
We were referred to the contents of the surveillance footage that had been before the Medical Assessor, namely:
· 16 February 2021;
· 20 February 2021;
· 16 October 2021;
· 19 October 2021;
· 23 January 2022;
· 24 January 2022;
· 25 January 2022;
· 11 February 2022;
· 12 February 2022;
· 13 February 2022;
· 12 March 2022;
· 13 March 2022;
· 27 May 2022;
· 28 May 2022, and
· 29 May 2022.
The evidence of this surveillance, it was submitted, and the evidence contained in the financial records, contradicted the claimant’s assertion, which had “seemingly” been accepted by the Medical Assessor, that she spent most of the time at home. The evidence, it was claimed, showed that Ms Bruzzese spent significant periods of time out of home, in crowded environments visiting salons in retail stores “for things that should properly be considered to be discretionary items or activities.” This was inconsistent, it was argued, with the level of functioning accepted by the Medical Assessor.
The appellant employer submitted that it was “a common practice” to purchase clothes and groceries online and have them delivered. It was said to be “highly likely” that the majority of the retail stores in the major shopping centres have an online retail store. The visits to stores in Bondi Junction Westfield, Sydney Westfield or Burwood Westfield and indeed the Paesnella Cheese shop in Marrickville were inconsistent with the capacity and impairment assessed by the Medical Assessor, and brought into question his finding that Ms Bruzzese only went shopping for necessities. The Medical Assessor was criticised for not enquiring “exactly what those necessities were” and why she could not obtain them from one supermarket or one visit per week. The bank statements disclosed that Ms Bruzzese did so “multiple times per week, and on occasions, multiple times per day.”
It was also submitted that the surveillance material demonstrated that Ms Bruzzese did continue to exercise and engage in some form of activity in contrast to what she had told the Medical Assessor. Again reliance was made on the financial records.
The surveillance material it was submitted also demonstrated that the Medical Assessor should not have accepted Ms Bruzzese’s explanation that she was wearing the same clothes in the surveillance reports, particularly that of 15 March 2022.
The appellant employer also referred to the history taken by Dr Neale in September 2021 that as a result of the breakdown of her marriage she had reduced her self-care, increased her junk food intake and often spent the day in her pyjamas. This was contrasted by the appellant employer with a surveillance report of 28 October 2021 which showed that Ms Bruzzese attended Ashfield Aquatics centre with her daughter and that she walked the Bay Run around Iron Cove Bay and then went to Birkenhead Point shopping centre with her partner and dog.
Further submissions were made as to the contrast between what was recorded by Dr Neale and what was observed in the surveillance evidence.
The appellant employer also made submissions designed to show inconsistencies between the history taken by Dr Khan, the consultant psychiatrist retained by the claimant, who on 10 February 2022 did not notice any improvement from his earlier assessment of January 2021. This negated, it was argued, Ms Bruzzese’s assertion that her condition had improved over the period since her assessment by Dr Neale.
Further detailed particulars were advanced by the appellant employer as to the alleged inconsistencies demonstrated by a comparison with the surveillance evidence and histories taken by Dr Khan and Dr Neale. The appellant employer noted that Dr Neale had reduced her assessment from 22% WPI to 15% WPI and then to 7% WPI when she had viewed the various surveillance reports. The appellant employer reproduced sections of Dr Neale’s report on the basis that Ms Bruzzese was an unreliable historian.
It was submitted that “it can be assumed the worker would be very aware of the importance for her claim of obtaining an assessment… of 15% WPI or greater.” There was no basis, it was argued that Ms Bruzzese “abruptly became a frank, candid and reliable historian” when she was assessed by the Medical Assessor.
The appellant employer referred to Dr Khan’s report of 21 December 2022 in which he considered the change of mind by Dr Neale and submitted that his description of the surveillance report as being “cross-sectional in nature and did not take into consideration context” was meaningless.
The appellant employer made further submissions regarding the evidence in similar detailed and particular fashion. It submitted that the provisions of Chapter 1.36 of the Guides was accordingly relevant to any assessment of the claimant. The appellant employer said:
“Despite the settlement of the workers disputed workers compensation claim (for technical reasons on terms whereby the Appellant referred its right to raise factual disputes in the proceedings), the evidence of the Appellant’s witnesses in their statements filed with the Reply (also not discussed or considered by the Medical Assessor) gave rise to a significant number of factual disputes and issues which reflected poorly on the credit and behaviour of the worker.”
The appellant employer then submitted that the Medical Assessor had fallen into error in relation to the classification within each of the categories in the PIRS.
The appellant employer dealt with each ground specifically.
Self-care and personal hygiene
The Medical Assessor erred in accepting that Ms Bruzzese had her nails manicured monthly at a nail salon on the advice of her GP because she would otherwise bite them. This was said to be an “improbable justification.” The appellant employer advanced its interpretation of what the Medical Assessor should have found, namely that it represented “a personal luxury” and an interaction in the community which contradicted his assessment. We were advised as to the cost of specialised nail polish available at Chemist Warehouse.
Social and recreational activities
The appellant employer noted that the Medical Assessor took a history that whilst Ms Bruzzese spent most of her time at home she did attend other venues with her daughter. When at the training venue she would remain isolated and not interact with others, and when she went to the local shops and other shopping centres with her elder daughter she did so every month or so. The Medical Assessor also took a history that she had not been to the beach with her children for two years and the last time she attended the gym was in early 2021, it was alleged.
We were referred to “the criteria” provided by the Guides for this category and the appellant employer submitted that a class 2 impairment was more appropriate than the class 3 rating assessed by the Medical Assessor. This was in view of the evidence that her ability to partake in relevant activities was “likely to have been impacted” by her responsibilities as a single mother caring for two dependent children, one of which suffered from an intellectual disability and competed at a national level but swimming.
It could be inferred, it was submitted, that Ms Bruzzese would attend training on several “mornings or evenings” outside school hours and “potentially” on weekends, as well as attending the various pools for competitions. The Medical Assessor’s suggestion that Ms Bruzzese required prompting to go out as part of an obligation had no proper basis, the appellant employer submitted.
Ms Bruzzese, it was submitted, had no obligation to take her daughter’s lunch to school each day, a practice which was not “commonly adopted in the general parental population.” Ms Bruzzese, it was further submitted, was a single parent, and the Medical Assessor failed to take into account the “likely” limitations that such status of itself would impose.
In any event the level of her activities contradicted the rating given by the Medical Assessor, it was argued. It was clear from the surveillance evidence that Ms Bruzzese’s attendance at the various locations was not because her daughter was a support person, but because she was acting as a parent, particularly when the daughter concerned was only about 15 years old and when Ms Bruzzese was receiving carer payments from the government.
The appellant employer assumed that it would be common for large competition venues to be filled with those participating with family and friends of the participants, together with event officials, and that there would be food stalls and pop-up stalls where people could buy merchandise. Thus, it argued, a reasonable inference could be drawn that Ms Bruzzese would have been involved in helping her daughter with travel, navigation of the competition venue, identifying her schedule and ensuring that she was prepared when attending the competition, and other details.
It would not be unusual, it was submitted, for Ms Bruzzese to remain focused on her daughter during training sessions rather than chatting with other parents, particularly where these activities made up a large component of Ms Bruzzese’s daily life. A class 2 rating was accordingly more appropriate, and the Medical Assessor had fallen into error in failing to engage with the relevant Guides and to consider adequately or at all Ms Bruzzese’s circumstances.
Travel
The appellant employer conceded that the Medical Assessor had taken the history that Ms Bruzzese could travel independently and had noted that she had difficulty driving due to her concentration difficulties. He noted that she travelled to the Gold Coast for the swimming competition, but that when she was outside her local area she required a family member for support. As had already been submitted, the Medical Assessor had erred in so finding, the appellant employer said. The inconsistencies between Ms Bruzzese’s self-reports and the surveillance evidence had resulted in error, it was submitted.
The appellant employer submitted also that the evidence of the credit cards that showed that it was used in other suburbs as diverse as Bondi Junction and Parramatta. This demonstrated that Ms Bruzzese frequented those areas, it was asserted. We were referred to the “criteria” for a class 2 in this category and it was submitted that the word “local” should be interpreted as pertaining to a specific suburb or area in which a claimant lived.
The Medical Assessor had erred by failing to engage with the “criteria” for a class 2 rating. He had failed to consider, adequately or at all, Ms Bruzzese circumstances, whether self-reported or objectively demonstrated by the surveillance and the bank statements, it was submitted.
Social functioning
The Medical Assessor had erred in his assessment of this category by focusing primarily on Ms Bruzzese’s separation from her husband, the appellant employer argued. He did not suggest that there were severely strained relationships or that her children were being looked after by relatives or community services.
Again, it was submitted that the Medical Assessor did not consider adequately or at all the relevant “criteria” under the Guides. The appellant employer noted that Ms Bruzzese’s relationship with her ex-husband was amicable, a factor that was not alluded to by the Medical Assessor.
The appellant employer repeated that submissions as to the failure by the Medical Assessor to either apply the Guides appropriately or to consider adequately the evidence before him, including the surveillance material and the financial records.
Concentration, persistence and pace (CPP)
The class rating of 3 in this category was also said to be an error as it was inconsistent with the available evidence, the appellant employer said. It referred to the Medical Assessor’s findings on examination and contrasted them with Mr Bruzzese’s self reported impairment. The Medical Assessor had erred in accepting Mr Bruzzese’s history of concentration difficulties when driving or watching television because she had previously reported that she enjoyed watching shows with her mother on a weekly basis and that she regularly engaged in significant travel around multiple suburbs of Sydney. The objective evidence, it was submitted would justify a class 1 or class 2 rating rather than the class 3 given by the Medical Assessor.
Employability
The class 5 rating by the Medical Assessor could not be justified on the evidence that was before him, it was submitted. The appellant employer relied on its submissions with regard to the other categories, which demonstrated, it submitted, that the Medical Assessor had not engaged with the “criteria” required in the Guides. The existence of barriers or impacts on a person’s ability to engage in or sustain employment because of his/her injury did not necessarily indicate total impairment, it was submitted.
Summary
In summary the appellant employer submitted that the Medical Assessor had made a demonstrable error and applied incorrect criteria under each of the PIRS categories because he relied principally on Ms Bruzzese’s self-report and did not pay sufficient heed to the objective evidence in the form of the surveillance and the financial records. The self-report by Ms Bruzzese had been repeatedly unreliable and inaccurate, not only to the Medical Assessor but to the medical specialists who had assessed her in the course of the case.
The reasons given by the Medical Assessor did not adequately explain his conclusions, and the appellant employer submitted that the class ratings ascribed to the various categories were too heavily reliant on Mr Bruzzese’s self-report. They failed to give sufficient weight to the objective evidence. The ratings were glaringly improbable and the Medical Assessor had overlooked significant factual matters, or had not adequately considered them in reaching his determination. His reasoning was unsupportable in the face of this evidence and established that he could not be said that there was a mere difference of opinion being raised by the appellant employer.
Respondent worker
Ms Bruzzese’s submissions were prepared by Mr Craig Tanner of counsel.
As to the contention that the Medical Assessor had failed to address the evidence, Mr Tanner noted that the appellant employer’s submissions had “dedicated 34 paragraphs to an exercise which illustrates the concept of being unable to see the wood for the trees.” He submitted that the appellant employer had “focused on matters of no material relevance” and noted that the Medical Assessor had assessed each category with reference to evidence that was “readily apparent.” Mr Tanner then addressed the appellant’s submissions with regard to each category.
Self-care and personal hygiene
Mr Tanner submitted that the class 2 rating given by the Medical Assessor was the same as was assessed by the opposing medico-legal psychiatric experts, Dr Khan and Dr Neale. The descriptors within the Guides for a class 2 rating in this category were reflected in the findings made by all three specialists, he said.
Social and recreational activities
Mr Tanner kindly reproduced the “criteria” for a class 3 rating in this category. He submitted that there was no evidence of regular participation in social events. He argued that the evidence showed that Ms Bruzzese attended swimming related events in support of her daughter, and in any event remained isolated and did not interact in any social events.
The submission by the appellant employer should be seen as “argumentative speculation.”
Travel
Again Mr Tanner reproduced the descriptors for a class 2 rating. He submitted that the Medical Assessor referred to the reasons why Ms Bruzzese’s capacity to travel was impaired compared to the general public. It could not be said therefore, Mr Tanner said, that she had “no deficit” nor that she was able to travel independently without limitation.
The argument about the locality of the various suburbs that were mentioned by the appellant employer particularly those such as Bondi Junction and Parramatta were areas that were familiar to any resident in Sydney, Mr Tanner argued. In any event, the Medical Assessor noted that Ms Bruzzese would only travel to other shopping centres with her elder daughter every month or so, Mr Tanner said.
Social functioning
Mr Tanner observed that the appellant employer had “seen fit” to allege error by the Medical Assessor when its own expert, Dr Neale, had also assessed a class 3 rating in this category. Mr Tanner referred to the reasons given by Dr Neale in that regard and noted that the class 3 rating was common to all three specialists.
CPP
Mr Tanner again kindly reproduced the relevant descriptors in the Guides class 3 rating. He referred to Chapter 1.6 of the Guides and its requirement that a Medical Assessor use his clinical assessment as to a claimant’s presentation on the day of assessment. Mr Tanner submitted that the Medical Assessor explained in his reasons what the basis of his finding had been, and Mr Tanner observed that Dr Khan had made the same assessment. Whilst Dr Neale found no evidence of an impairment in this category, Mr Tanner submitted that her assessment to be made in August 2022 and that on the day of the assessment before the Medical Assessor one year later, clinical judgement, a year later, demonstrated that Ms Bruzzese’s condition had changed.
Employability
Mr Tanner referred to the reasons given by the Medical Assessor and submitted that the class 5 rating was open therefore. Dr Khan had a similar view to that of the Medical Assessor but Dr Neale thought there was a capacity of up to 20 hours per week of work. Mr Tanner reproduced the reasons given by the Medical Assessor for differing with the view of Dr Neale and submitted that they were reasonable, having regard to the evidence and the requirement that a claimant be assessed as they presented for the medical assessment.
DISCUSSION
The appellant employer’s submissions have made it necessary to reproduce perhaps more evidence than is normal. The file consisted of 2,201 pages and the nature of the appeal, concerning as it did the credit of Ms Bruzzese, necessitated copying a large amount of the Medical Assessor’s reasons to put those submissions in context.
Many of the appellant employer’s submissions alleged that the Medical Assessor had not considered, or not considered adequately, the vast amount of factual evidence compiled by the appellant employer to challenge Ms Bruzzese’s credit. These submissions are obviously based upon the premise that we are able to draw a conclusion to that effect on circumstantial evidence, as the appellant employer is not able to support any suggestion that the Medical Assessor had actually failed to consider the factual evidence.
It was not suggested that the Medical Assessor did not have the impugned material before him or that he was unaware of it. His discussion of the surveillance material when considering the reports of Dr Khan, and particularly that of Dr Neale made it clear that he was so aware.
Is there any need for a Medical Assessor to consider every document before him?
In Western Sydney Local Health District v Chan[5] a Medical Appeal Panel re-examined the claimant. The evidence included a supplementary report by the employer’s expert which reduced his assessment of WPI from 17% to 6% – similar to Dr Neale in the present case. However, in its report, the Panel failed to mention that supplementary report at all.
[5] [2015] NSWSC 1968.
The matter came before Adams J who noted that there was no evidence that the second report was not before the Panel. The employer had submitted that the re-examining member of the Panel had failed to notice the supplementary report, and had thus failed to consider it. The claimant submitted that it was not necessary for a Medical Assessor to deal with all the material that was made available. His task was as described in Wingfoot Australia Pty Ltd v Kocak[6] at [47], including that:
“…. The function of a [Medical Assessor] is neither arbitral nor 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 form and to give [his] own opinion on the medical question referred to it by applying [his] own opinion on the medical question referred to [him] by applying [his] own medical experience and [his] own medical expertise.”
[6] [2013] HCA 43, cited as applying to the functions of Medical Assessors in Chan at [13].
Adams J found at [14] that it was unlikely that the Panel had overlooked the report, as it had been referred to in the MAC which the examining member of the Panel had referred to. The question therefore became whether the examining member had not considered it. Adams J said at [15]:
“…. As the volume of material in this case shows, to require [a Medical Assessor] to discuss all matters relevant to a claimant’s history would often be an enormous task. He or she is required by s 325 [of the 1998 Act] to state ‘the facts upon which…[the] certificate is based.’”
The complaint by the appellant employer in the present case is not that the Medical Assessor failed to mention the evidence about which it now complains, but rather that it had “not properly considered and engaged the material before him when describing his disagreement with Dr Neale’s assessment of 7% WPI.” That material the appellant employer described as “the evidence enclosed to the proceedings, such as the surveillance reports and the worker’s bank statements and the medico-legal reports of Dr Alice Neale…” The appellant employer conceded, as it had to, that the Medical Assessor had engaged with the material before him when describing his disagreement with Dr Neale’s assessment of 7% WPI, but it submitted that the Medical Assessor had “not objectively considered or adequately engaged with the material itself.”
We do not, with respect, consider that such consideration was required to the extent advanced by the appellant employer. The difficulty with the submissions by the appellant employer is that the Medical Assessor has identified and discussed the evidence about which the appellant employer now complains. As indicated, the Medical Assessor noted the last report of Dr Khan in December 2022 in which Dr Khan considered and engaged with Dr Neale’s “significant change” of her WPI assessment after Dr Neale had been supplied with the “surveillance material.” The Medical Assessor noted that Dr Khan reviewed Dr Neale’s reports and “other material” (which we infer included the surveillance material) but nonetheless maintained his previous opinion of a 22% WPI. The statement by the Medical Assessor thereafter that: “my assessment of Ms Bruzzese is similar to that of Dr Khan” carries with it the strong inference that he had considered both Dr Khan and Dr Neale’s reports, and the material upon which both were based.
Further, the Medical Assessor considered the reports of Dr Neale, including that of August 2022 in which he noted that information from the covert surveillance carried out on several occasions in late 2021 and 2022 had “caused a re-assessment by Dr Neale”. The Medical Assessor noted that Dr Neale had explored with Ms Bruzzese some of the contents of that material and, although she maintained her diagnosis that Ms Bruzzese suffered from an adjustment order with mixed anxiety and depressed mood, Dr Neale decided that she was an unreliable historian and reduced her assessment to 7% WPI. The Medical Assessor, again as indicated, said “I differ from Dr Neale” and explained why he did so, including with reference to the surveillance material.
He discussed that material with Ms Bruzzese when rating the social and recreational activities category. With reference to the gym activity the Medical Assessor said that he “specifically asked” her about the surveillance pictures and was told that the pictures taken dated to 13 March 2022, and she had not been back since. There is no evidence that she has. The Medical Assessor also discussed other aspects of the surveillance material with Ms Bruzzese in his consideration of Dr Neale’s report in this category. The appellant employer submitted that this was insufficient.
Limits to causation findings by a Medical Assessor
We note the submissions by the appellant employer that the contents of the financial statements should have caused the Medical Assessor to find that Ms Bruzzese was unreliable. The appellant employer assumed that the interpretation of the contents of bank statements would have convinced the Medical Assessor that Ms Bruzzese had been spending so much time in the various shopping centres that her assertion that she spent most of the time at home could not be believed.
With respect, we do not believe that it is part of a medical specialist’s role to analyse such material to the level of forensic expertise that would enable him safely to draw such conclusions. The interpretation of evidence of this nature more appropriately is one that requires legal training, which in these circumstances would indicate that the drawing of such inferences without more would be speculative and unsafe. The submission carries with it the presumption that the training and expertise of a Medical Assessor also involves training about the effect of evidence and how to interpret its relevance and plausibility when it has not been tested.
The Medical Assessor is an administrative decision-maker.[7] In Marina Pitsonis v Registrar of the Workers Compensation Commission[8] Mason P stated at [31]:
“31 The reasons of an administrative decision-maker (especially one who is not a judge) are not to be ‘construed minutely and finely with an eye keenly attuned to the perception of error’(see Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-2, approving Collector of Customs v Pozzolanic (1993) FCR 280 at 287). A court should exercise restraint lest it mistakes looseness in language for errors of substance.”
[7] Section 32 of the 2020 Act.
[8] [2008] NSWCA 88.
The appellant employer has succumbed to this temptation, with respect. Many of its submissions contained statements of fact that were based on speculation, and irrelevant considerations. The cost of nail polish, for instance, and the existence of home delivery services at various stores were speculative matters and did not advance the appellant employer’s argument. Whether having one’s nails done at a nail bar was a luxury item or not was nothing to the point. The assumptions made as to the infrastructure of a swimming carnival and the conclusion that Ms Bruzzese would therefore have been acting in keeping with a class 2 rating shows that the appellant employer indeed was approaching its task with an eye too keenly attuned to the perception of error.
A further preliminary point concerns the conduct of the appellant employer in attempting to attack Ms Bruzzese’s credit by seeking to have a Medical Assessor make adverse findings, rather than before the Personal Injury Commission (Commission).
Technical reasons
We read with interest the appellant employer’s submission that liability had been admitted “for technical reasons.” The appellant employer referred in that context to “the evidence of the appellant’s witnesses in their statements” which had not been discussed or considered by the Medical Assessor.
The insurer issued five dispute notices. They were dated 27 April 2020, 24 July 2020, 4 November 2021, 20 December 2022 and 10 January 2023. Each notice repeated the first defence as being the provisions of s 11A of the 1987 Act:
“1. Your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to promotion, transfer, the provision of employment benefits and/or dismissal. [Section 11A(1) of the 1987 Act]. This is a total defence to a psychological injury claim.”
Each notice also claimed:
“2. In the alternative, you do not suffer from any incapacity as a result of a compensable psychological injury. [Section 33 of the 1987 Act].”
The notice of 10 January 2023 contained the following explanation for the insurer’s decision:[9]
“…..
We note Dr Neale was provided with the surveillance footage obtained of you, which provide objective evidence of your functioning which is inconsistent with your reporting of the same.
While Dr Khan claims there are no inconsistencies between your reported functioning and the surveillance footage, he has previously said you no longer went retail shopping, had to be prompted to attend social activities but didn’t engage and had panic attacks leaving the house. This is inconsistent with your functioning seen in the surveillance, despite his comments in his latest report.
We raise the issue of credit and whether your evidence relating to the alleged injury and its’ effects is reliable and can be accepted.
We maintain our conclusion that your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to promotion, transfer, the provision of employment benefits and/or dismissal, in accordance with section 11A(1) of the 1987 Act.”
[9] Appeal papers page 96.
The statements of the appellant employer’s witnesses that were not referred to by the Medical Assessor were to be found in the Reply, the appellant employer stated. A perusal of the reply showed that a detailed and particular body of evidence had been directed at the s 11A issue. This evidence included statements and emails from the following:
(a) Ryan Blouin, Coordinator at the Burwood Council EAC (Enfield Aquatic Centre);[10]
(b) Jessica Gilmore, Programs Team Leader EAC;[11]
(c) Daniel Pocaterra, Customer Service Team Leader EAC, and[12]
(d) Krish Kumar, swimming instructor EAC.[13]
[10] Appeal papers page 451.
[11] Appeal papers page 463.
[12] Appeal papers page 473.
[13] Appeal papers page 477.
Emails dated from April 2016 were also lodged by the appellant employer which contained complaints about the performance of Ms Bruzzese.[14]
[14] Appeal papers page 479 et seq.
The appellant employer did not give any explanation as to why this body of evidence would have been relevant to the enquiry by the Medical Assessor. It was concerned with the dissatisfaction from various quarters with the performance of Ms Bruzzese’s employment duties and clearly directed at the s 11A issue. This evidence was consistent and contemporaneous, and indicated prima facie negative observations regarding Ms Bruzzese’s work performance.
Section 11A, as indeed the five dispute notices said, constitutes a complete defence to an employee’s allegation of the onset of a psychological condition whilst employed. The insurer stated unequivocally that the issue of Ms Bruzzese’s credit was raised in relation to the injury and its alleged effects.
In Bayside Council v Ware[15] the limits of a Medical Assessor’s power to make causation decisions were considered in a case where there was a conflict between the findings of a Commission Member, who had found the claimant had no entitlement to weekly compensation from a given date, and the Medical Assessor, who later had found the claimant to be totally unemployable. After considering the decision in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[16] and its effect on the jurisdiction of the Commission in Jaffaire v Quality Castings Pty Ltd,[17] the Panel in Ware revoked the MAC on the basis that in matters that were not an integral part of a “medical dispute” as defined in s 319 of the 1998 Act, a Medical Assessor was bound by decisions of the Commission. This decision was applied in Bunnings Group Ltd v Davis.[18]
[15] [2023] NSWPICMP 576.
[16] [2014] NSWCA 264.
[17] [2018] NSWCA 88 at [80]-[81].
[18] [2023] NSWPICMP 525 at [83].
In Ware the Panel observed:
“The reason for the inconsistency has been plainly and thoroughly ventilated by the appellant employer. Member Sweeney found Mr Ware to be without credit and, after a full defended hearing within the Commission, found Mr Ware to be an unreliable witness.”
Member Sweeney set out the details of the claim under the heading “background”, which we have extracted above at [53]. A perusal of the facts therein set out gives a very different history of Mr Ware’s conduct and behaviour. Mr Ware’s version of events was contained in two statements that were before the Medical Assessor but the history that the Medical Assessor relied on can be seen to be a far cry from the facts as found by Member Sweeney that constituted the dispute.
Member Sweeney permitted oral evidence to be given, and the applicant together with three respondent witnesses were sworn, and extensively cross-examined. With the assistance of submissions from counsel, Member Sweeney heard and read the evidence tendered before him, and delivered his statement of reasons. The conciliation/arbitration hearing occurred on 13 July 2021 and Member Sweeney delivered a comprehensive and reasoned judgement on 12 October 2021, which was amended on 1 November 2021, from which no appeal was made.
His conclusions as to Mr Ware’s credit we have extracted above at [57]. Member Sweeney found that Mr Ware’s evidence was variously “not always reliable”, “impossible to reconcile”, “not reliable”, “hard to accept”, “unconvincing”, “contradicted”, and “inconsistent”.
The appellant employer’s submission that its decision to admit liability was made for “technical reasons” is accordingly difficult to understand. It is trite to say that the Commission proceedings are similar to those conducted in a court – that is to say, each party is represented, usually by a barrister and solicitor, before a Member, who has the same protections and immunities as a Judge of the Supreme Court.[19] Ware is an example of the effectiveness of the bifurcated system. Whilst a Medical Assessor has to make judgements from time to time as to matters of credit, they are made within his/her experience and expertise as a medical specialist. We will refer to Ferguson v State of New South Wales[20] later in these reasons, but for present purposes the description by Campbell J at [23] underlines this difference:
[19] Schedule 2(4) 2020 Act.
[20] [2017] NSWSC 887.
“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’.”
In Ware, the Panel alluded to a situation where a claimant was a plausible liar and that therefore a Medical Assessor’s ability to form an assessment based on his clinical observations would self-evidently be compromised. The procedure before the Commission, where cross examination can be conducted, gives a much better chance of assessing the credit of such a claimant, as indeed happened in that case, and indeed where the Medical Assessor was taken in by a persuasive but dishonest applicant.
We note further the concession by the appellant employer that there were “a significant number of factual disputes and issues which reflected poorly on the credit and behaviour of the worker.” Whether or not Ms Bruzzese had suffered a psychological injury whilst employed, as indeed every medical specialist found she had, the employer had a complete defence in the provisions of s 11A. That it chose to allow these issues to be decided by a Medical Assessor and thus eschewed the opportunity to properly investigate Ms Bruzzese’s credit, was a forensic decision that thus carried some disadvantages.
The PIRS
It is convenient at this point to consider the statutory basis for the assessment of psychiatric and psychological impairment, and the leading authorities as to its application.
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[21] provides:
[21] Guides page 55.
“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.”
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[22]
[22] See 11.15-11.21 at Guides page 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[23] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
[23] [2017] NSWSC 887.
“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[24]. 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].”
[24] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[25] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
[25] [2018] NSWSC 140.
“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])…..”
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.
Applying these principles, we now turn to each category.
Self-care and personal hygiene:
The Guides provide the following relevant descriptors:[26]
[26] Guides Table 11.1 page 56.
“Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit)
2–3 times per week to ensure minimum level of hygiene and nutrition.”In his PIRS reasons, the Medical Assessor said, in assessing a class 2 rating:[27]
[27] Appeal papers page 61.
“Ms Bruzzese describes a general reduction in her selfcare and personal hygiene compared to before her injury. She reports showering every two or three days rather than daily. She will wear the same clothes for 2 or 3 days at a time. She has her hair washed and styled weekly by her daughter who is an apprentice hairdresser for practice. Ms Bruzzese has her nails done at a nail bar monthly. She prepares some meals or herself and her children, though often gets takeaway meals. She describes requiring her children to prompt her for adequate self-care.”
The appellant employer focused on the finding that Ms Bruzzese had her nails done at a nail bar monthly. We had some difficulty in understanding the relevance of the submission that such an activity was a “personal luxury.” We were also intrigued by the submission setting out the comparative costs of nail polish. These submissions, with respect, did not have any relevance to the above descriptors.
The Medical Assessor was aware of the relevant facts regarding this category. The submissions of the appellant employer did not demonstrate any clear misunderstanding as to Ms Bruzzese’s situation, and his reasoning was clear and logical. A class 2 rating was consistent with his findings. The appellant employer’s submissions as to the effect of sitting in a salon were speculative and hypothetical. The assessment was made, as we have indicated, with the Medical Assessor being aware of the surveillance reports. A class 2 rating was found by both Dr Neale after she had seen the surveillance reports and by Dr Khan. This rating is accordingly confirmed.
Social and recreational activities
Table 11.2 of the Guides provides relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
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.”
The reasons given by the Medical Assessor in the PIRS for assessing a class 3 rating were:
“Ms Bruzzese rarely goes to any social or recreational events and usually when with family. She attended the National swimming Championships in the Gold Coast in April of this year to support her daughter and went with her parents. She spends most of her time at home though does attend other venues with her daughter, such as swim training. When at the training venue she will remain isolated and not interact with others. She will go to local shops each week and other shopping centres with specialty shops with her elder daughter every month or so. Ms Bruzzese may go to the beach with her children though said the last time she did this was approximately two years ago. She said the last time she attended a gym was in early 2021.”
We note that the reference to “early 2021” appears to be a typographical error in view of the history indicated above that the Medical Assessor was told that the last time Ms Bruzzese attended the gym had been in March 2022 The appellant employer’s submissions again was somewhat preoccupied with speculation as to what Ms Bruzzese might have been doing. There was no factual basis for the inference that she would have been attending training several mornings or evenings outside school hours and on weekends as well as attending various pools for competitions. The submission as to who was supporting whom when Ms Bruzzese was out with her children misconceived the concept of a support person, with respect. Whilst she was undoubtedly in the role of a parent when she was with her younger daughter, nonetheless the presence of such a family member would have acted as an incentive to go out and that relationship constituted a support relationship. The Medical Assessor acknowledged that the claimant would go shopping with her elder daughter to shopping centres and that she had gone to the Gold Coast with her younger daughter, but had gone with her parents. Whilst the appellant employer submitted that a class 2 rating was appropriate, we regard that submission as being no more than the expression of a mere difference of opinion on about which reasonable minds might differ. The Medical Assessor again were seized with the information on which the appellant employer relied, but simply took a different view of the facts that were before him. We confirm the class 3 rating assessed.
Travel
Table 11.3 of the Guides contains the relevant descriptors:
“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.”
The Medical Assessor gave the following reasons for the class 2 rating in his PIRS Table:
“Ms Bruzzese can travel independently by driving to local shops and occasionally to other areas in the city to shop. She describes some difficulties driving at times as she has some impairment of her concentration. She reported a recent minor accident when driving. She does not travel independently to unfamiliar locations. She was able to fly from Sydney to the Gold Coast with her parents and daughter in April of this year to support her daughter at a swimming competition. When travelling outside of her familiar local area Ms Bruzzese requires a family member as support.”
Again, it can be seen that the Medical Assessor was seized of the relevant facts, and again we are asked to speculate about the facts that the credit card spending in the bank statements might have indicated. The Medical Assessor had the benefit of being able to make a clinical judgement on the face-to-face consultation, with the benefit of being aware of the credit issues raised on behalf of the appellant employer, including the negative final report of Dr Neale. We would note further that the appellant employer from time to time referred to the descriptors as “criteria.” As we have indicated above, the descriptors could not be described as “criteria,” as they are no more than examples to give a Medical Assessor an awareness of the generality of the behavioural consequences of psychiatric disorder as it relates to each category. The evidence does not establish that Ms Bruzzese has no deficit in her ability to travel, nor a minor one within the normal variation of the general population. The class rating of 2 is confirmed.
Social functioning
Table 11.4 provides the relevant descriptors:
“Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
In assessing a class 3 rating the Medical Assessor said in his PIRS Table:
“Ms Bruzzese’s marriage of 25 years ended in early 2021 which she says was due to the significant change in her mental health over the preceding year. She said that she now will communicate with her ex-husband through the children, though not directly. She describes a good relationship with her children and her parents with whom she still lives, though she has lost contact with friends. She supports her elderly parents and her children including delivering her daughters lunch to school every day and assisting her with her swimming training and hairdressing apprenticeship.”
The appellant employer argued that the Medical Assessor focused primarily on Ms Bruzzese’s “separation” from a husband and ignored the evidence that she was on good terms with him. This history however was taken by Dr Neale who, notwithstanding the reservations about the claimant’s credit, nonetheless assessed a class 3 impairment.[28] Dr Neale and the Medical Assessor accepted that Ms Bruzzese’s marriage broke down as a result of the psychiatric condition. That is clearly an example of a previously established relationship being strained to the point where it ceased. This rating is also confirmed.
[28] Appeal papers page 766.
Concentration persistence and pace
Table 11.5 of the Guides provides relevantly:
“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 (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The reasons given in the PIRS Table by the Medical Assessor were:
“Ms Bruzzese no longer reads books though is able to read newspaper articles online on her phone. She describes difficulty with her concentration in situations such as driving which concerns her, and when watching television. At interview today Ms Bruzzese appeared to lose concentration at times and had to be redirected or reminded of questions. Subjectively she described her concentration as impaired with associated poor memory.”
Chapter 1.6 of the Guides provides that the medical assessment involves “clinical assessment of the claimant as they (sic) present on the day of assessment…”[29] the assessment with Dr Neale occurred on 16 August 2022 and at that time Dr Neale found there was no evidence of concentration or attention difficulties. Ms Bruzzese’s condition was assessed somewhat differently by the Medical Assessor, who found problems with concentration and indeed a necessity for him to redirect her attention all remind her of questions he had asked. The appellant employer’s reliance on what had occurred in the past was accordingly of little relevance unless the claimant’s credit had been so affected that she could not be believed. As indicated, the Medical Assessor was aware of the allegations made against her and we are satisfied that he used his clinical judgement to determine what the appropriate rating was at the time he assessed her. Accordingly, the class 3 rating is confirmed.
[29] Guides page 3.
Employability
The relevant classes in this category are set out in Table 11.6 of the Guides:
“Class 3: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (e.g. less stressful).
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 reasons given by the Medical Assessor in his PIRS Table were:
“Ms Bruzzese has not been employed in any work for the last 2½ years. She describes low energy, low motivation, with increased anxiety, social withdrawal and difficulties with her concentration and memory all of which would be a significant barrier to employment. She has not been to a swimming pool recreationally for two years and would not be able to return to this environment for work”.
The appellant employer stated in its submissions that Ms Bruzzese’s youngest daughter has an intellectual disability, which enabled the daughter to compete in the “para” division of swimming competitions. The appellant employer noted that Ms Bruzzese receives NDIS payments and a carer’s allowance for that daughter. That evidence, it was submitted, was available to the Medical Assessor but not brought to Mr Bruzzese’s attention, and neither did Ms Bruzzese advise him of this information. We note that neither Dr Khan nor Dr Neale were made aware of these facts either, which suggests perhaps that Ms Bruzzese was reluctant to discuss her younger daughter’s situation.
Nonetheless, the receipt of NDIS payments does suggest that she receives income for her support of her youngest daughter, and she is capable therefore of performing some limited employment duties. A class rating of 4 is accordingly appropriate. We note Dr Neale’s assessment of 3, but we do not agree that Ms Bruzzese is capable of working 20 hours per week. Accordingly, this finding will be revokes and a class 4 rating substituted.
DECISION
Accordingly the PIRS Table 11.8 is amended to add to the reasons for “employability”:
“However, she has been able to act as a carer for her youngest daughter and is remunerated by the National Disability Insurance Scheme for her services. This is a somewhat artificial capability, given the familial relationship, but one to which the descriptors of a class 4 are appropriate. Ms Bruzzese has a severe impairment and could not work for more than 20 hours per fortnight.”
Pursuant to Table 11.14 of the Guides Ms Bruzzese’s entitlement now becomes 19% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 September 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: | W1767/23 |
Applicant: | Burwood City Council |
Respondent: | Sonia Bruzzese |
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 Alan Doris 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) |
| Psychiatric/ psychological disorder | 26 February 2020 (deemed) | Chapter 11 Page 54 | 19% | nil | 19% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
14
0