Burwood Council v Viney
[2023] NSWPICMP 192
•8 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Burwood Council v Viney [2023] NSWPICMP 192 |
| APPELLANT: | Burwood Council |
| RESPONDENT: | Giuseppina (Pina) Viney |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 8 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; application to admit statement after medical examination declined; Lukacevic v Coates Hire Operations and Pitsonas v Registrar of the Workers Compensation Commission discussed; failure to refer to employer’s medical reports; section 352(2), State of NSW v Kaur; assessment under psychiatric impairment rating scale (PIRS); Ferguson v State of NSW, Parker v Select Civil and Ballas v Department of Education discussed; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 March 2023 Burwood Council (the Council) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 February 2023.
The Council relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Viney was employed by the Council as the Manager – Governance. She suffered a psychological injury which is deemed to have occurred on 3 March 2022, being the date on which she made a claim for permanent impairment compensation. Ms Viney said that she suffered injury as a result of her interactions with an employee whom she managed.
On 8 July 2021, after a contested hearing, a member of the Personal Injury Commission (the Commission) determined that Ms Viney had suffered a psychological injury with a deemed date of 8 November 2019 and that the injury was not wholly or predominantly caused by the Council’s reasonable action with respect to performance appraisal or discipline. The Member found that Ms Viney’s capacity for employment at its highest, was 20 hours per week in a low level clerical position.
The orders made were amended by consent on 6 October 2021. The parties agreed that Ms Viney had partial incapacity for work from 24 March 2020 to date and continuing.
The referral to the Medical Assessor was made by consent on 4 October 2022 after a preliminary conference by a member of the Commission.
Using the psychiatric impairment rating scale (PIRS) the Medical Assessor assessed 15% whole person impairment (WPI), assessing Ms Viney in class 3 for self care and personal hygiene, social and recreational activities and employability. He assessed her in class 2 for travel, social functioning and concentration, persistence and pace. He did not make any deduction under s 323 of the 1998 Act.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, the Council submitted that the Medical Assessor failed to properly refer to and consider paragraph 11.12 “of” the PIRS under the Guidelines and failed to take account of all available relevant medical information as required by paragraph 1.6a. The Council said that the Medical Assessor did not comment on its reports from Dr Hong dated 28 February 2020 and 13 April 2022. It referred to the decision of the Full Federal Court in Najt v Minister for Immigration and Multicultural and Indigenous Affairs[1] (Najt) where Madgwick J (with whom Conti J agreed said:
“A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave.”
[1] [2005] FCAFC 134.
The Council said that while the Medical Assessor was “entitled” to form his own opinion, he was required to engage with the material and provide reasons to allow the parties to understand “how the evidence was used and what impact it had on the determination.” It said that the failure to refer to Dr Hong’s opinion was “further evidence” that the MAC was made on the basis or incorrect criteria or of a demonstrable error.
The Council said that the Medical Assessor was in error to assess Ms Viney in class 3 for self care and personal hygiene because she lives independently, she can drive to the post office and go to a café (as shown by surveillance evidence), she can care for her dog and her plants, there is no evidence that she is unable to prepare her own meals and has gained weight. The Council said that Ms Viney said she showered weekly when pushed by her daughter though there was no evidence that she required visits from her daughter two to three times per week. It said that Ms Viney’s use of online shopping was indicative of her ability to live independently. The Council said that Ms Viney should have been assessed in class 2 (as Dr Hong did).
With respect to social and recreational activities, the Council said that the Medical Assessor was in error to assess Ms Viney in class 3 because there is objective evidence in the surveillance film of her being able to go out without a support person and because she may occasionally have a friend visit or go out for coffee or a drive. The Medical Assessor recorded that Ms Viney was able to go to Melbourne with her daughter. The Council said that Ms Viney should have been assessed in class 2 as Dr Hong did.
The Council did not seek a re-examination.
We note that Ms Viney has not filed a cross-appeal. In reply, and in submissions prepared by Mr Adhikary of counsel, Ms Viney agreed that the assessment made by the Medical Assessor was incorrect and said that “the appeal of both parties” should be allowed. That submissions is inconsistent with submission that an arguable case of error has not been established.
Mr Adhikary said that the panel should be “furnished with the report of Dr Hong” and Ms Viney’s further statement dated 5 April 2023 and should re-assess Ms Viney on the papers or re-examine her.
Mr Adhikary said that the Council’s submissions were misconceived. The fact that Ms Viney lived alone was not the same as living independently and the MAC showed that the Medical Assessor had had regard to the surveillance evidence. With respect to social and recreational activities, Mr Adhikary said that the Council had failed to have regard to the fact that class 2 “refers to the need for the activities to be participated in occasionally” and class 3 “requires the participation to be rare”.
A statement from Ms Viney dated 5 April 2023 was attached to the submissions. Mr Adhikary said that the matters contained in it were “indicated” to the Medical Assessor and that if he had had regard to them, Ms Viney’s impairment would have been greater. He said that failing to have regard to the information meant that the examination had not been conducted in accordance with the Guidelines. He said:
“The Respondent also submits that the Medical Assessor’s failure to have regard to the information which is recorded in her further statement was a demonstrable error because he did not have regard to material which he was required to in the performance of his statutory task (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 259).”
The statement to which he referred was prepared after the date of the examination by the Medical Assessor. No formal application to admit fresh evidence was made on Ms Viney’s behalf.
On 2 May 2023 the Council’s solicitor wrote to the Commission, pointing out that Ms Viney had not filed an appeal and opposing the admission of further evidence. No response to that letter was provided.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Ms Viney to undergo a further medical examination because there is enough information in the file to determine the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Ms Viney’s statement dated 5 April 2023 said that she did not agree with the Medical Assessor’s description of her impairment. She sought to provide information with respect to each of the PIRS categories. In respect of social functioning, she sought to provide more information because the Medical Assessor had not asked her for reasons for the responses she provided.
As noted above, no cross-appeal was filed on behalf of Ms Viney and no application to admit fresh or additional evidence was made. There are no formal submissions as to why the evidence was not available and could not reasonably have been obtained.
The Council opposes the admission of the further statement.
In Petrovic v BC Serv No 14 Pty Limited[2] Hoeben J dealt with the ground of appeal in s 327(3)(b) but his Honour’s words are also relevant to an application to admit fresh evidence as to the conduct of an examination. His Honour noted that if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
[2] [2007] NSWSC 1156 at [31].
In Lukacevic v Coates Hire Operations Pty Limited[3], Hodgson JA said:
“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 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.”[4]
[3] [2011] NSWCA 112.
[4] At [78].
Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[5] His Honour said:
“The Panel's reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.”
[5] At [100].
In Phillips v JW Williamson and RW Williamson t/s Williamson Bros[6] Schmidt J contrasted the factual dispute in Lukacevic about what took place at the examination with the availability of additional probative medical material which did not exist at the time of the examination by the Approved Medical Specialist (AMS), on which the worker sought to rely to demonstrate errors by the AMS.
[6] [2016] NSWSC 1681.
Ms Viney statement seeks to supplement her evidence and to respond to questions that she considered that the Medical Assessor did not ask. She had provided a detailed statement describing her functioning in June 2022, shortly before the proceedings were commenced. She provided a further statement about the surveillance evidence in an Application to Admit Late Documents filed in July 2022. Her statement dated 5 April 2022 is not evidence which falls within s 328(3). The alleged failure to take account of the matters described in the statement cannot, in any event, be a demonstrable error. A demonstrable error is evident on the face of the MAC. In Pitsonas v Registrar of the Workers Compensation Commission and Anor Mason P said:[7]
“I am therefore driven to conclude that s327(3)(d) uses ‘contained’ in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission[2006] NSWSC 939 at [39] (‘an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment’.)” (emphasis in original.)
[7] At [49].
Mason P said:[8]
“Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”
[8] At [59].
We have determined that the statement should not be received on the appeal for the reasons expressed in the authorities set out above.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[9] 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.
[9] [2006] NSWCA 284.
Reference to Dr Hong’s reports
The Medical Assessor did not refer to Dr Hong’s reports dated 28 February 2020 and 13 April 2022. Because that issue was central to the Council’s submissions, we have dealt with it first.
Mr Adhikary’s submissions assume that the Medical Assessor was not provided with Dr Hong’s reports but there is no basis in the documents for that assumption. Both reports were attached to the Reply and the consent order dated 4 October 2022 provided that the Reply was to be included in the brief to the Medical Assessor. The brief provided to an appeal panel contains the whole of the brief provided to the Medical Assessor. We are satisfied that the Medical Assessor had Dr Hong’s reports but omitted to refer to them.
The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [10] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’ "
[10] At [36].
Ideally, the Medical Assessor would have explained why his opinion differed from that of Dr Hong. His task was to assess Ms Viney as she presented on the day of the examination and to prepare a certificate which complied with s 352(2) of the 1998 Act:
“(2) A medical assessment certificate is to be in a form approved by the President and is to—
(a)set out details of the matters referred for assessment, and
(b)certify as to the medical assessor’s assessment with respect to those matters, and
(c)set out the medical assessor’s reasons for that assessment, and
(d)set out the facts on which that assessment is based.”
The form approved by the President does alert the Medical Assessor to comment briefly on other reports, though that is not one of the essential elements of s 352(2). Not every aspect of every other report will be relevant to the Medical Assessor’s consideration. Those which are particularly relevant are the reports which describe treatment or which express a view as to whether the worker has reached maximum medical improvement. However, the parties are entitled to know how the Medical Assessor considered Dr Hong’s reports.
The Medical Assessor was not required to choose between the assessments made by other medical examiners. In State of New South Wales (NSW Department of Education) v Kaur[11] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[11] [2016] NSWSC 346.
The failure of the Medical Assessor to specifically refer to Dr Hong’s reports is a demonstrable error. We believe it was probably an omission, but it is an error nonetheless.
For the reasons set out below, the failure to refer to the reports was not an error which requires revocation of the MAC or re-examination.
Assessment under the PIRS
We note that the grounds of appeal relate to the PIRS tables in which Dr Hong made a lower assessment than the Medical Assessor. No issue is raised in respect of the table under which Dr Hong made a higher assessment, concentration, persistence and pace.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“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 important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. Rather than providing criteria for assessment, what follows in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[12] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[12] [2015] NSWSC 633 at [65].
The Medical Assessor was required to exercise his clinical judgement in assessing Ms Viney under the PIRS. Campbell J considered the categorisation of impairment in Ferguson v State of New South Wales[13] (Ferguson) and said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
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 [2015] NSWSC 633. 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’…”
[13] [2017] NSWSC 887 at [24]-[25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[14]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
Self care and personal hygiene
[14] [2018] NSWSC 140 at [70]-[71].
The Medical Assessor gave reasons for assessing Ms Viney in class 3:
“Ms Viney said she showers weekly and usually when pushed to do so by her daughter. She takes no care of her appearance. She said she does take good care of her dog and she looks after her plants but does not care about the inside of her apartment. She does not bother to do the washing up. Her eating habits have been disordered and she has gained 16 kg. She is moderately impaired.”
He said:
“Ms Viney said she normally goes to bed about 9 PM but gets to sleep somewhere between 9:30 PM and 1 AM. She said her sleep is disrupted and she gets up around 7 AM. She has coffee, tends to her dog and looks after plants on a balcony. Following that she mostly just sits on the lounge. She has television on but said she cannot focus on a particular programme. She tries to regularly watch the news. She gets up and paces around. She does online shopping but gets her daughter to check the order for her.”
On examination he noted:
“’Ms Viney is a 59-year-old right-hand dominant woman whose appearance is consistent with her stated age. She appeared to be significantly overweight, had frizzy uncombed hair and had not taken care with her appearance.”
The examples on in the PIRS for assessment in class 2 – mild impairment are:
“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.”
The examples on in the PIRS for assessment in class 3 – moderate impairment are:
“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.”
Dr Chow assessed Ms Viney in class 3 and Dr Hong in class 2. Dr Hong said that Ms Viney was able to live independently though recorded in his report dated 5 April 2022:
“Ms Viney's daughter moved out after my last assessment and lives in an apartment, five minutes drive away. Her daughter spends most nights with her and sometimes visits her on the weekend.”
In her statement date 23 July 2022, Ms Viney said that she showers about once a week, or when her daughter prompts her a take a shower by telling her that she smells. She said she does not wash her hair for two weeks at a time, having previously taken great pride in her appearance. She no longer has frequent meals and only eats when her she is hungry, or if her daughter comes over. If her daughter does not come over, she will often simply have a bread roll.
When that history is considered it is clear that while Ms Viney lives alone, she does not live independently. She has regular and considerable support from her daughter. This is confirmed in the body of Dr Hong’s report in the passage quoted at [58] above. He also noted Ms Viney’s history with respect to cooking in [59] above.
We do not agree that the surveillance report is evidence of Ms Viney’s being able to function independently in the community. It merely shows that on one day, 12 August 2022, she went to the post office and bought a take away coffee, being away from home for roughly half an hour.
The assessment in class 3 was open to the Medical Assessor. While another assessor might have assessed her in class 2, it cannot be said that the Medical Assessor’s assessment was wrong and it is a matter on which reasonable minds may differ.
Social and recreational activities
The Council said that the surveillance evidence showed that Ms Viney was able to go out without a support person. On the occasion of that brief outing she was alone but it was not an outing which falls to be considered under Table 11.2 of the PIRS. Each of the PIRS tables is assessed separately and particular conduct must be applied to the appropriate scale - Ballas v Department of Education[15] (Ballas). Bell P and Payne JA said:
“Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”[16]
[15] [2020] NSWCA 86.
[16] At [93] - [94].
Bell P and Payne JA said in Ballas that the table “looks to the injured worker’s degree of participation in such activities”.[17] A solitary activity is not a social and recreational activity.
[17] At [100].
The Medical Assessor gave reasons for assessing Ms Viney in class 3:
“Ms Viney said she does not do anything. She said occasionally a friend will visit her and they may go for coffee across the road or for a drive. She said prior to the work injury she enjoyed going to the ballet, going out socially with friends and she would go to the city alone for shopping or to events like Vivid. She no longer does that. She said she cannot deal with crowds. She has not maintained contact with friends from work. She is moderately impaired.”
The Medical Assessor recorded Ms Viney’s current symptoms:
“She said she still has difficulty being in crowds and letting people be close to her. She said she feels helpless. She is extremely anxious and feels hot and bothered when that happens. She is socially avoidant. She said she has lost her appetite and has no interest in food. She does not enjoy anything and does not have an interest in any activity.”
The examples in the PIRS for assessment in class 2 are:
“Mild impairment: occasionally goes out to such events, e.g. without needing a support person, but does not become actively involved (e.g. dancing, sharing favourite team).”
The examples for assessment in class 3 are:
“Moderate impairment: rarely goes out to such events, and mostly when prompted my family or close friend. Will not go out without a support person. Not actively involved remains, quiet and withdrawn.”
The evidence suggests that Ms Viney does not participate in social activities without a support person.
Dr Chow also assessed Ms Viney in class 3. The history on which Dr Hong based his assessment was different. On the basis of the history obtained by the Medical Assessor, assessment in class 3 was open to him.
We consider that Dr Hong’s observations in the disputed PIRS classes do not demonstrate that the Medical Assessor made an error. For these reasons, even though the Medical Assessor’s omission to refer to Dr Hong’s report is an error, we have determined that the MAC issued on 23 February 2023 should be confirmed.
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