Carroll v State of New South Wales (NSW Police Force)
[2023] NSWPICMP 501
•9 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Carroll v State of New South Wales (NSW Police Force) [2023] NSWPICMP 501 |
| APPELLANT: | Gregory Carroll |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
DATE OF DECISION: | 9 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the psychiatric impairment rating scale; appeal with respect to social and recreational activities only; worker sought to rely on a statement going to the history given to the Medical Assessor (MA); leave to rely on the statement refused; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, Pitsonas v Registrar of the Workers Compensation Commission and Anor referred to; assessment was open to MA in the exercise of his clinical judgement; Ferguson v State of New South Wales and Parker v Select Civil Pty Ltd considered; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 June 2023 Gregory Carroll lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 May 2023.
Mr Carroll relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(c). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Carroll suffered a psychological injury which is deemed to have occurred on 7 October 2020 as a result of his employment as a police officer by the NSW Police Force (the Police Force).
The Medical Assessor assessed 9% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS). He assessed Mr Carroll in class 2 for self care and personal hygiene, social and recreational activities, travel and social functioning. The Medical Assessor assessed Mr Carroll in class 3 for concentration persistence and pace and class 5 for employability. He added 1% to his assessment to take account of the effects of treatment, arriving at a final 10% WPI.
Mr Carroll’s appeal is limited to the Medical Assessor’s assessment for social and recreational activities.
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 Mr Carroll to undergo a further medical examination because there is sufficient information in the file to determine the appeal and the assessment made by the Medical Assessor was open to him.
Fresh evidence
Mr Carroll seeks to rely on a short a statement dated 21 June 2023 in which he says that two aspects of the history recorded by the Medical Assessor are incorrect. Relying on a medical appeal panel decision in Jovanovic v Baltic Doors (NSW) Pty Ltd[1] (Jovanovic), Mr Carroll said that the Medical Assessor’s failure to record an accurate history resulted in an incorrect assessment of WPI. He submitted that the evidence was not available and could not reasonably have been obtained before the assessment because it related to the conduct of the assessment.
[1] [2009] NSWWCCMA 44.
The Police Force said that the statement should not be admitted because Mr Carroll has not established the criteria for its admission.
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.
We determine that the statement should not be received on the appeal. The decision in Jovanovic relied on does not assist Mr Carroll, being no more than a statement of the relevant principles by a medical appeal panel in 2009. It predates Supreme Court and Court of Appeal authority which deals precisely with the admission of a statement going to the conduct of an examination by a Medical Assessor.
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.
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 [matters complained about] 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 and that the reasons expressed in the authorities set out above preclude its consideration.
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.
Mr Carroll’s submissions assumed the admission of his statement dated 12 June 2023. He said that when the “correct” history was considered, it was “more appropriate” that he be assessed in class 3 for social and recreational activities.
In reply, the Police Force submitted that the assessment was open to the Medical Assessor. It noted that the Medical Assessor was required to assess Mr Carroll on the day of his examination and was not required to accept the assessments of other practitioners, particularly where the assessment may be different due to the passage of time.
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 an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[9] [2006] NSWCA 284.
The MAC
The Medical Assessor noted that the examination was undertaken by video assessment and that Mr Carroll attended alone. The Medical Assessor set out the history of the injury and said:
“He told me his post-traumatic stress disorder was at its worst for several months before he left work and several months later. There was a period of grieving in September/October of 2022 after multiple deaths in the family.”
The Medical Assessor noted that Mr Carroll commenced treatment in February 2021 and was referred to Dr Murray, psychiatrist. He described Mr Carroll’s treatment:
“Mr Carroll takes sertraline 100 mg, Eliquis 5 mg, Crestor 20 mg and perindopril 5 mg. He consults Dr Murray monthly. He has tapered to two-monthly sessions with a psychologist who recently indicated they were close to concluding treatment.”
The Medical Assessor summarised Mr Carroll’s symptoms. He said:
“I asked Mr Carroll to rate the emotional quality of his life, with 100 being perfect and zero being the worst imaginable. He rated himself at 70%. He told me he is still trying to regain his enthusiasm and motivation. He remains hypervigilant when he is out of the house. He is worried he might inadvertently become angry and get involved in conflict by losing his temper.”
With respect to Mr Carroll’s general health, the Medical Assessor recorded:
“I asked him about his alcohol use over the years. For many years he had mostly alcohol free days, most weeks. He said he never drank during the week because he was often on call. His drinking escalated to several drinks per day for two years. Last year after the death of his mother and the loss of a friend to suicide, a friend died in his sleep, and then the sudden death of his brother-in-law at the age of 62, his drinking increased from three to four beers per day to six to seven beers with an occasional alcohol-free day. Alcohol helped him feel calm and in control and settled him. He said he was drinking at that level for four to six weeks. He denied symptoms of alcohol withdrawal, such as sweating or shaking. He denied alcohol cravings. He has never had specific treatment for alcohol use disorder and recently has moderated his alcohol intake. He said he had discussed his alcohol use with his psychologist and psychiatrist since he was examined by Dr Hong for an independent medical examination and was prescribed exercise and meditation. He has reduced his drinking to weekends only.”
The Medical Assessor took a detailed history of Mr Carroll’s social activities and activities of daily living which included:
“On a typical day, he potters at home in the garden and works on projects such as painting around the house, cleaning the windows, helping his wife by washing, mowing his mother-in-law’s lawn and generally helping at her house. He tries to keep busy with his wife. He will travel to Penrith with his wife and look after their granddaughter every three weeks. His wife might bring their granddaughter to them. He might spend two days per week helping care for his granddaughter. His wife looks after his granddaughter weekly. He said he could look after his grandchild and take her for a walk in the pram, to the park and around the local streets. He enjoys spending time with her. He said he is unlikely to encounter colleagues or known criminals in his local area.
He said until recently he did not have the enthusiasm to bother maintaining his 34-foot cruiser moored locally. He said up until two weeks ago he had not been on it for two months. He has been with his wife over the last two weeks to clean the boat’s sides. He took a weeklong trip on the boat with his wife in January.
Once a week, he will have a coffee with his wife at a café. He might meet his brother, who lives locally, for a Chinese meal at the Bowling Club. He last visited a restaurant with his son and fiancée two weeks ago. He said he eats out every two to three months. He feels uneasy in crowds and is apprehensive about being asked difficult questions. He will not socialise without his wife. He is happy watching sports on television. He has not attended large sporting events, concerts, shows or plays. He went to the movies once in the last eight months to watch Top Gun. He said he was absorbed in the movie, noting that only eight people were in the theatre.
…
His principal social contacts are his wife, grandchild, daughter, brother and sister-in-law. His sister-in-law is a frequent visitor, and she will bring her husband, and he will sit at the back of the house and feel comfortable chatting with them. He has been seeing his sister, who lost her husband last year. She has a holiday unit locally, and she visits for a chat. When his son can come home, he can go out for dinner with his son and his fiancée. His son is usually based in Singleton and is not home many weekends.
He said he has a lot of friends but does not stay in contact with many people. He has contact with distant friends occasionally on the phone. He has a former work colleague who lives locally, and they catch up every three months. His friend might drop around. He has regular contact with some friends on the phone…
…
He travelled to Bermagui in March with his wife in a caravan for a holiday for a month. They went to Fiji in the last week of February to celebrate his daughter’s thirtieth birthday. He denied interstate travel. They travelled on the boat down the Hawkesbury River in January and moored in Refuge Bay for a week.”
The Medical Assessor commented on other medical reports in the file, including those of Dr Allan, qualified for Mr Carroll, who reported on 17 May 2022 and Dr Hong, who saw Mr Carroll for the Police Force and reported on 23 September 2023. The Medical Assessor noted that Dr Allan assessed Mr Carroll in class 3 for social and recreational activities. He noted that Dr Hong considered that Mr Carroll had not reached maximum medical improvement because there had been a fluctuation in his symptoms since Dr Allan’s assessment and an increase in his alcohol consumption.
The Medical Assessor provided reasons for his assessment in class 2 in the PIRS Rating Form:
“Mr Carroll is uneasy in crowded settings. He occasionally socialises with a select group of people outside the home, with safety behaviours. He comfortably socialises at home regularly with family. He is regaining his interest in boating and enjoys home maintenance projects around the house.”
Other evidence
We have set out extracts from the MAC at some length because they reveal that the Medical Assessor took a detailed history and they highlight that the basis of the appeal is very narrow.
Mr Carroll’s statement was signed on 24 November 2020, only about six weeks after the deemed date of injury and more than two years before the Application to Resolve a Dispute was filed. The description of his daily activities in the statement is brief, and the MA has described how his condition has improved over time and with treatment.
Dr Allan reported on 17 May 2022. He took a detailed history of the onset of injury but wrote very little about Mr Carroll’s daily activities. He gave reasons for assessing Mr Carroll in class 3 but the factors on which he based that assessment on do not otherwise appear in his report. Dr Allan said:
“He has no social life. He is withdrawn from friends. He does not exercise apart from occasional prompted walks with his wife. He is avoidant of social circumstances if at all possible and does not involve himself in conversations if around other people. He is avoidant and withdrawn and he scores 3.”
Dr Murray’s reports do not describe Mr Carroll’s activities. In November 2021 Dr Murray said that his symptoms included “significant loss of interest in previously enjoyable activities; marked disruption of the normal sense of human connectedness”. By October 2022 Dr Murray noted “some loss of interest in previously enjoyable activities; significant disruption of the normal sense of human connectedness”. The different descriptions suggest that Dr Murray observed some amelioration of symptoms.
Dr Hong reported on 23 September 2022. He recorded a history of Mr Carroll’s activities which included:
“Mr Carroll said he does not do much and just hangs around the house. He would do some gardening, and sometimes he would help look after the granddaughter. His wife is generally present when the granddaughter is there.
He has regular contact with his adult children and also sees his brother regularly as he lives locally.
…
He said he lost work friends and does not really have local friends. He has got a couple of good friends, but even with them he has avoided contact and they do not live locally.”
Dr Hong noted Dr Allan’s assessment and said:
“I noted since Dr Allan’s assessment, Mr Carroll's alcohol intake has certainly increased and he reported in the last few months his alcohol consumption has increased even further. He has not had formal alcohol management because his psychologist/psychiatrist have not been made aware of his alcohol consumption. Given there has been some fluctuation in his symptom and impairment since Dr Allan’s assessment and a clear increase in alcohol intake (which in my opinion has reached a Alcohol use disorder), my view is that Mr Carroll's psychological condition is not considered stabilised yet.”
Dr Hong did not assess WPI.
Consideration
The crux of Mr Carroll’s appeal is that the Medical Assessor should have assessed him in class 3 for social and recreational activities as Dr Allan had done about one year before.
The Medical Assessor was required to clinically assess Mr Carroll as he presented on the day of the examination, taking into account his relevant medical history and all available relevant medical information.[10] He was not required to agree with or choose between the assessments of other practitioners.
[10] Guidelines paragraph 1.6.
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.”
[11] [2016] NSWSC 346.
Mr Carroll submitted that assessment in class 3 was “more appropriate” than the assessment made by the Medical Assessor. The Medical Assessor was required to exercise his clinical judgement in assessing Mr Carroll under the PIRS. Campbell J considered the categorisation of impairment in Ferguson v State of New South Wales[12] (Ferguson) and said 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.”
[12] [2017] NSWSC 887 at [24]-[25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[13]
“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. ...
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…”
[13] [2018] NSWSC 140 at [71].
Apart from the two factual matters dealt with in his recent statement, Mr Carroll did not take issue with the reasons that the Medical Assessor gave for assessing him in class 2. The limited information from sources outside the MAC suggests that Mr Carroll’s social activities are centred on his family. The history in the MAC shows that he is able to undertake a range of social and recreational activities at home and away from home, such as boating, caravanning, going to the park with his grandchildren, eating out and holidaying overseas. When the recent statement is put to one side, as required by the authorities, the history supports the Medical Assessor’s assessment.
The Medical Assessor noted in the body of the MAC that Mr Carroll will not socialise without his wife, thus taking that factor into account when making his assessment. The descriptors for each class in the PIRS are examples only[14] and the fact that Mr Carroll does not socialise without his wife does not mandate assessment in class 3.
[14] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633.
The assessment made by the Medical Assessor of a mild impairment was open to him in the exercise of his clinical judgement.
For these reasons, we have determined that the MAC issued on 23 May 2023 should be confirmed.
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