Clifford v State of New South Wales (NSW Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	Clifford v State of New South Wales (NSW Police Force) [2024] NSWPICMP 371
APPELLANT:	Mark Clifford
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	6 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury, assessment under the Psychiatric Impairment Rating Scale in relation to self-care and personal hygiene only; insurer approved domestic assistance after examination by Medical Assessor (MA); availability of additional relevant information; statement also going to conduct of examination; assessment open to MA on history obtained; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 February 2024 Mark Clifford lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Clayton Smith, who issued a Medical Assessment Certificate (MAC) on 18 January 2024.
Mr Clifford relies on the grounds of appeal under s 327(3)(b), (c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information ( 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 President’s 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)(d). 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Clifford suffered a psychological injury in the course of his employment with the NSW Police Force (the Police Force) which is deemed to have occurred on 28 October 2021. Mr Clifford claimed compensation for 23% whole person impairment (WPI). That assessment was made by Dr Prior on 22 February 2023.
Under the Psychiatric Impairment Rating Scale (PIRS), the Medical Assessor assessed 9% WPI, adding 1% for the effects of treatment to reach a total of 10% WPI. He assessed Mr Clifford in class 2 for self care and personal hygiene, social and recreational activities, travel, and social functioning. The Medical Assessor assessed him in class 3 for concentration, persistence and pace, and class 5 for employability.
The appeal relates only to the assessment for self care and personal hygiene.

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 Clifford to undergo a further medical examination because the assessment made by the Medical Assessor does not disclose error.

Additional relevant information

Mr Clifford seeks to rely on a further statement dated 15 February 2024 and some email correspondence with the Police Force’s insurer. The statement deals with two topics. In paragraphs 5 to 7, Mr Clifford commented on the Medical Assessor’s opinion that he could live independently and that he does get his children ready for school and disagreed with the Medical Assessor’s opinion.
The second topic is addressed in paragraphs 8 to 14. Mr Clifford said that in December 2023 he asked the insurer for some household assistance. A rehabilitation assessment was undertaken and on 23 January 2024, the insurer approved fortnightly cleaning and lawnmowing. An email from the insurer offered 12 weeks of cleaning, which may be extended, depending on the WPI assessed.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence 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 before that medical assessment.
Mr Clifford submitted that the evidence was not available and could not reasonably have been obtained because the domestic assistance had not been approved. No submissions were provided about paragraphs 5 to 7 of the statement.
The Police Force said that Mr Clifford’s further statement sought to cavil with the Medical Assessor’s assessment and that Mr Clifford could have told the Medical Assessor that he had sought domestic assistance.
In Petrovic v BC Serv No 14 Pty Limited[1] 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 under s 328(3). His Honour observed 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”.
[1] [2007] NSWSC 1156 at [31].
In Lukacevic v Coates Hire Operations Pty Limited[2] 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.”[3]
[2] [2011] NSWCA 112.
[3] At [78].
Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[4] 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.”
[4] At [100].
Based on those authorities, we decline to admit paragraphs 5 to 7 of Mr Clifford’s statement commenting on the history provided.
We admit the remainder of the statement so that the purported ground of appeal under s 327(3)(b) can be dealt with.
In State of New South Wales v Ali[5] Harrison J said:
“First, the information … is neither additional nor relevant as properly understood. The expression ‘additional relevant information’ contemplates or anticipates a qualitative addition to the information otherwise previously available. It is not concerned with the information being merely quantitatively different, in the sense that there is more of the same. That is made plain by the words in parentheses, which emphasise that the additional relevant information must also qualify as information that could not reasonably have been obtained before the medical assessment appealed against. As a matter of plain language, that does not mean or refer to something that could not have been obtained simply because it came later in time. Everything that occurs later than an earlier event is by definition additional in a temporal sense. That is obviously so in the present case, in which the so-called additional relevant information consists of the investigation reports, which uncontroversially ‘could not reasonably have been obtained ... before’”.
[5] [2018] NSWSC 1783 at [32].
Mr Clifford asked for domestic assistance in December 2023. An email from the insurer dated 12 December 2023 reads:
“EML are able to support you with cleaning. What will need to happen is we refer you for an ADL assessment (Activities of Daily Living) with a rehab provider. The process involves a rehab provider coming to your house to assess and just have a general conversation to discuss what assistance you may need. The rehab provider will then come back to me with this, and I will review for you. This is quite a common, general process and if you would like to proceed, the rehab provider I will refer you to specialises in workers compensation claims.
You are entitled to 12 weeks of cleaning as we do want you to recover to some form of independence. However, I note you are currently in the process of WPI and depending on the WPI% you may be entitled to ongoing cleaning. If entitled to ongoing cleaning, we will need to reassess your assistance with cleaning around every 6 months.”
That email shows that the insurer agreed to provide assistance in December, subject to a report showing what was required. There is therefore no reason why Mr Clifford could not have told the Medical Assessor about the request for assistance and it is surprising that he did not. The documents are not “information” which was not available to Mr Clifford – he was aware that he was discussing the provision of assistance with the insurer. While the insurer had not made the decision to provide help before the examination, it is only the need for assistance which might be relevant to assessment under the PIRS, not the agreement by the insurer to provide it.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Clifford submitted that the Medical Assessor made a demonstrable error in the assessment of self care and personal hygiene, submitting that the Medical Assessor should have assessed him in class 3 rather than class 2. He said that the report of Dr Prior dated 22 February 2023 obtained by his solicitors, supported assessment in class 3. He said that the reports of A/Prof Davies dated 14 June 2023 and 21 June 2023 supported the contention that he requires prompting to shower and that A/Prof Davies did not provide other significant reasons why he should be assessed in class 2 rather than class 3. (A/Prof Davies assessed Mr Clifford in class 2.)
Mr Clifford said that his statement supported assessment in class 3 and the fact that he now has the support of a cleaner also made class 3 appropriate. He said that assessment in class 3 was “more appropriate” based on the history taken by the Medical Assessor because Mr Clifford requires prompting for personal hygiene tasks and requires assistance from his wife and their parents to look after his children.
Referring to Wise v Sardale Pty Limited[6] (Wise), Mr Clifford said that we are required to undertake a review de novo of the material before the assessor.
[6] [2005] NSWSC 1264.
In reply, the Police Force noted that the assessments by Dr Prior and A/Prof Davies predated the examination by the Medical Assessor by between four and 11 months. The Police Force noted that the Medical Assessor’s assessment is based on the examination on the day he saw Mr Clifford and said that the MAC showed that he had turned his mind to whether class 2 or 3 was appropriate. It said that there is no evidence that Mr Clifford is unable to manage household administration or grocery shopping and it should not be assumed that the restrictions are a result of the injury.
The Police Force submitted that the categorisation of activities is a matter for the Medical Assessor, exercising his clinical judgement and that the assessment in class 2 was not glaringly improbable.

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. Mr Clifford’s reliance on Wise is misplaced, that decision having been made under an earlier version of the legislation. Our review is not a review de novo.
In Queanbeyan Racing Club Ltd v Burton[7] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[7] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[8] 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.
[8] [2006] NSWCA 284.

The parties’ evidence

Mr Clifford’s first statement is dated 16 May 2022 and describes the injury. His statement dated 24 August 2023 was prepared by reference to the PIRS. He said that his wife makes meals but sometimes he is reluctant to eat and “there are times” when his wife will tell him to shower. He sets an alarm to take his medication. Mr Clifford attempts to clean the house as often as he can but on some days – particularly school days when his wife works – he feels so tired that he has to rest.
Dr Prior assessed Mr Clifford on 21 February 2023 for the second time, having seen him in October 2022. He noted the treatment that Mr Clifford had undergone treatment and was continuing to do so. Dr Prior said:
“When I saw him last, four months ago in October 2022, his condition had not stabilised as he reported an ongoing improvement over the previous five weeks that he dated from commencing the medication Seroquel.
Since seeing me last, he states ‘my condition has generally stabilised now’. He reports that it has been at its current level of severity since soon after seeing me last.”
Dr Prior noted many ways in which Mr Clifford’s condition had improved in the previous four months. Mr Clifford told him that his wife “will not leave him alone unsupervised around the children” because of his temper and tendency to become “overloaded”. Dr Prior’s diagnosis was chronic post-traumatic stress disorder and comorbid major depressive disorder which was in remission. He assessed Mr Clifford in class 3 for self care and personal hygiene because he needed prompting due to his lack of motivation.
A/Prof Davies saw Mr Clifford in June 2023, having previously examined him in December 2021. Mr Clifford told him that overall he had improved in that time. He assessed Mr Clifford in class 2 for self care and personal hygiene, noting that he may go for a few days without showering and is reminded by his wife to shower.
There is no evidence from treating doctors in the Application to Resolve a Dispute. There is some evidence from treating practitioners in the Reply but most of it predates the reports of Dr Prior. In April 2023, his psychologist Ms Yeates, recorded that Mr Clifford was “going all right” though her notes are very brief.

The MAC

The Medical Assessor set out the history he obtained from Mr Clifford, including his daily routine:
“He helps with the morning routine, including helping with breakfast and helping the children dress. He said if his wife is working, he will drive his children to school or daycare several minutes down the road. He will come home and do chores around the house. If he has had a difficult morning with the children, he may be exhausted and sit quietly. Otherwise, he might go outside and tinker in his shed.
…
He might shower every two to three days. He has a haircut every three months. He shaves every few weeks. He brushes his teeth daily. He washes his hair once a month. His wife sometimes prompts him to shower or change his clothes.
…
He spends much of his time looking after his children. He usually spends one full day looking after his 21-month-old. His 21-month-old is not attending daycare. His 4-year-old spends two days at kindergarten and two days at daycare during holidays. He looks after his 21- month-old while his wife works with occasional support from his or his wife’s parents. His wife prefers not to leave him alone with all the children due to his short fuse and reduced coping capacity. Grandparents help with childcare once or twice a week. They might come to the house for several hours so he can take a break and spend time alone in the garden or the shed.
He rarely did grocery shopping, even before the injury… He and his wife buy groceries by click-and-collect, and he might pick them up occasionally.”
The Medical Assessor gave reasons for assessing Mr Clifford in class 2:
“Mr Clifford sometimes neglects his self-care but could live independently and look after himself adequately despite occasionally looking unkempt. He does not shower daily. Although he sometimes requires prompting, he can independently ensure a minimum level of hygiene and nutrition. He actively contributes to the household routines and housework.”

Consideration

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[9] 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.”
[9] [2015] NSWSC 633 at [65].
Our task as a Medical Appeal Panel is to determine if the Medical Assessor has made a demonstrable error or applied incorrect criteria. We cannot substitute our own view for that of the Medical Assessor unless he made an error within the meaning of s 327(3) of the 1998 Act.
In Tasevski v Westpac Banking Corporation[10] (Tasevski) Schmidt AJ referred to the decision in Ballas v Department of Education (State of NSW)[11] and highlighted the need for conduct to be assigned to the appropriate class of the PIRS. Schmidt JA said:[12]
[10] [2024] NSWSC 401.
[11] [2020] NSWCA 86.
[12] At [27]-[36].
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.
…
It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor’s conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”

This case highlights the importance of assigning conduct to the appropriate category and it is important to remember that not every aspect of daily life is covered by the PIRS. Because the authorities tell us that the categorisation of conduct must be precise, it is important not to seek to expand the tables to encompass conduct which is not assessed under the PIRS.
The self care and personal hygiene table looks to the extent that a person can look after themselves and live independently. Though the tasks involved in caring for one’s family will often overlap with self care, the extent to which a person can maintain relationships and care for dependants is assessed under the social functioning scale.
The MAC shows that the Medical Assessor understood that conduct must be applied to the correct scale. He considered Mr Clifford’s care of himself under self care and personal hygiene and noted under the heading social functioning that he “actively and regularly cares for his children.” The Medical Assessor turned his mind to whether Mr Clifford could live independently and determined that he would be able to, such that his impairment was mild.
In Tasevski, Schmidt AJ stressed the requirement in paragraph 11.2 of the Guidelines to take account of activities which are normal for a worker’s age, sex and cultural norms. The MAC shows that the Medical Assessor compared Mr Clifford’s activities to his pre-injury functioning – noting, for example, that he rarely did grocery shopping even before the injury.
Mr Clifford’s history to the Medical Assessor and other examiners shows that he is actively involved in the care of his children. No appeal was raised with respect to the social functioning table. Like many families with small children, their grandparents are providing assistance. The Medical Assessor was alert to Mr Clifford’s particular circumstances. His wife is reluctant to leave him alone with all the children (our emphasis) because of his reduced coping capacity. It might be anticipated that caring for three children under five would be difficult for Mr Clifford but he looks after his 21 month old child for one full day a week.
The subsequent assistance provided by the insurer does not mean that the Medical Assessor’s assessment was incorrect. We explained above why it does not fall within s 327(3)(b). Mr Clifford requested domestic assistance and the insurer agreed to provide it but there is no evidence that he was not performing those tasks, rather that he felt tired as a result of doing so. So far as we can tell from the scant information provided, the assistance is for cleaning and lawnmowing. Cleaning (beyond basic hygiene) and lawnmowing are examples of daily life tasks which are not encompassed by the PIRS.
The submissions prepared for Mr Clifford stress the difference between the Medical Assessor’s assessment and that of Dr Prior a year before. The Medical Assessor was required to assess Mr Clifford on the day of the examination and to reach his own decision as to WPI. Though he was required to explain how he differed from other assessments, his role is not to choose between them.[13] Both Dr Prior and A/Prof Davies noted that Mr Clifford had experienced some improvement. Dr Prior was willing to make a WPI assessment in February 2023 when he was not comfortable to do it some months before. The Medical Assessor noted that Mr Clifford had improved since Dr Prior’s assessment.
[13] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346.
The Medical Assessor did not make his assessment on the basis of incorrect criteria, having properly applied the PIRS. The Medical Assessor does not contain a demonstrable error.
For these reasons, we have determined that the MAC issued on 22 February 2024 should be confirmed.

[2024] NSWPICMP 371

6 June 2024