Collis v State of New South Wales (NSW Police Force)
[2021] NSWPICMP 212
•8 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Collis v State of New South Wales (NSW Police Force) [2021] NSWPICMP 212 |
| APPELLANT: | Scott Collis |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Appeal Panel: | Member Brett Batchelor Dr Michael Hong Dr Julian Parmegiani |
| DATE OF DECISION: | 8 November 2021 |
| CATCHWORDS: | wORKERS cOMPENSATION- Worker’s appeal against finding of Medical Assessor (MA) of 10% whole person impairment (WPI) as a result of psychological injury; grounds relied upon was that there was a demonstrable error contained in the Medical Assessment Certificate (MAC), and that fresh evidence should be admitted; finding that the fresh evidence sought to be relied upon was in fact submissions only as to what the worker had told the MA on examination; Pitsonis v Registrar of the Workers Compensation Commission relied upon; the appellant worker took issue with the assessment of the MA in respect of the categories of self-care and personal hygiene, concentration, persistence and pace, and employability; Held - finding that the MAC did not contain demonstrable error in respect if the assessments for self-care and personal hygiene, and concentration, persistence and pace; finding that the MA had fallen into error in respect of the assessment of employability; Ballas v Department of Education (State of NSW) relied upon; finding that the MA had used his findings in respect of concentration, persistence and pace to determine employability; MAC revoked and new MAC issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 July 2021 Scott Collis (the appellant/Mr Collis) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Professor Nicholas Glozier (Professor Glozier), a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 July 2021.In the Form 10 – Appeal Against a Decision of Medical Assessor the appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria.
As noted hereunder, it is not clear that this is in fact the ground of appeal relied upon by the
appellant.
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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was sworn into the Police Force in 2010 and worked predominantly in general duties on a standard shift roster, mainly in the Eastwood Local Area Command and the Ryde Local Area command. He was exposed to numerous traumatic incidents in the course of his duties, including investigation of suicides, murder suicides, attempted suicides, significant motor vehicle accidents, a home invasion and investigation of deceased elderly persons in their homes. His mental state started to decline in 2014/2015. In July 2018 he was the subject of an attempt on his life at the front of the Eastwood Police Station when he was attacked from behind by a person with a large knife. Following this incident, he was off work until December 2018 when he recommenced on a return-to-work plan. Incidents during that return to work, including attending Parramatta Court in July 2019 to give a victim impact statement when the offender involved in the July 2018 was being dealt with, were the cause of the appellant suffering an increase in his anxiety, and a deterioration in his mental state.
Since the attempted stabbing in July 2018 Mr Collis has been treated by Dr Alexander Murray, psychiatrist, and Dr T Metelerkamp, psychologist. He ceased work in August 2019 and was medically discharged from the Police Force in about August 2020 at the rank of Leading Senior Constable Level 2.
Mr Collis was first assessed by Professor Glozier, then referred to as an Approved Medical Specialist, on 5 August 2020 for permanent impairment as a result of psychiatric/psychological disorder, deemed to have occurred on 14 August 2019. Professor Glozier issued a MAC dated 20 August 2020[1] in which he diagnosed the appellant suffering from Post-traumatic Stress Disorder (PTSD) and that the trigger for that disorder to become full-blown was the life-threatening knife attack in 2018. He continued to meet the criteria for that condition despite a reduction in his symptoms with a reduced frequency of re-intrusive experiences, entrenched but reducing avoidance, cognitive and arousal symptoms.
[1] Appeal papers pp 34 and 382.
Professor Glozier expressed the opinion that the appellant had not reached maximum medical improvement as he continued to improve. He said that given the trajectory reported by Mr Collis, following his discharge from the police and removal of that stressor, it was likely that his impairment would improve by 3% or more in the subsequent six to nine months, and suggested that nine months from the date of the MAC would be sufficient to enable an ascertainment of maximum medical improvement.
Professor Glozier, since 1 March 2021 with the establishment of the Personal Injury Commission on that date referred to as a Medical Assessor (MA), examined the appellant again on 30 June 2021 and issued the MAC the subject of this appeal on 2 July 2021[2].
[2] Appeal papers p 24.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because neither the appellant nor the respondent requested that the worker undergo a further medical examination by a member of the Appeal Panel, and the Panel considers that there is sufficient information in the appeal papers with which to make its decision.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional 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.
In the Form 10 – Appeal Against a Decision of Medical Assessor the appellant indicates that the only ground of appeal was that the assessment was made on the basis of incorrect criteria[3]. In the appellant’s submissions attached to the Form 10, the appellant states that reliance is placed on the following grounds of appeal under s 327(3) of the 1998 Act:
(a) 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, and
(b) the MAC contains a demonstrable error.
[3] Appeal papers p 4.
The appellant then submits that the AMS [sic, MA] has regrettably failed to accurately record matters which are germane to the assessment of the individual psychiatric impairment rating scale (PIRS), the consequence of which flows through to an incorrect overall whole person impairment (WPI) assessment.
The appellant submits that the MA fell into demonstrable error in respect of his assessment of the PIRS categories of “social function” [sic, “social functioning”], “self-care and personal hygiene”, and “employability”. The error alleged by the MA is the application of the wrong class (class 2, in preference to class 3, which is more appropriate).
The appellant then goes on to make submissions in respect of self care and personal hygiene, concentration, persistence and pace (emphasis added), and employability. There are no submissions made in respect of social functioning.
The “additional relevant information” on which the appellant seeks to rely is in respect of self care and personal hygiene, and concentration, persistence and pace. In respect of self care and personal hygiene the appellant submits that he indicated to the MA the following:
“I told the Professor Glozier that I do chores around the house, but not mentioned that
I do them as my partner leave me with these task I do. I attempt to do them to keep the leave with my partner, many of times I don’t complete the tasks I set out to do or I half do them, and it turns into a full-blown dispute with my partner. Also, I have promoted by psychologist, Toni Meteralakamp to do tasks to help around the home to reduce tension with me and my partner. My partner prompts me to get a haircuts and prompts me to do washing. My partner cuts my hair as I can’t stand someone behind me with a sharp implements.” [sic] (emphasis in original)In respect of concentration, persistence and pace, the appellant makes the following submission:
“In the appellant indicates that the usage of youtube, he requires to watch the same video multiple times in order for information to be acquired which is reflective of Professor Glozier’s reports of distractibility” [sic]
The problem with the so called additional relevant information referred to in [18]-[19] above is that it is not such. It is merely submissions from the appellant as to what he alleges he told the MA. As the respondent points out, such submissions are not evidence of demonstrable error, and more importantly, notes that such submissions were dealt with by the Court of appeal in Pitsonis v Registrar of the Workers Compensation Commission & Anor[4] at [59] in the following terms:
“59 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.”
[4] [2008] NSWCA 88 (Pitsonis).
The Appeal Panel determines that those submissions in [18]-[19] above should not be received as evidence in the appeal because they are not fresh evidence.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 MA that are relevant to the appeal are set out, where relevant, in the body decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. As noted above, the appellant has provided submissions in respect of the PIRS categories of self care and personal hygiene, concentration, persistence and pace, and employability, to which the respondent has replied. The Appeal Panel will consider those three categories.
Appellant
In summary, the appellant submits that the MA has wrongly placed him in Class 2 for
self-care and personal hygiene based on his reasoning as follows:“…he reports doing a number of chores around the home, cooking at times, shopping, maintains his own self-care and goes to the gym although generally when prompted…”[5]
The appellant places emphasis on the phrase “…although generally when prompted…”, submitting that, in accordance with Class 3 for self-care and personal hygiene, he requires prompting to shower daily and wear clean clothes, as opposed to interpreting the phase as only going to the gym, generally when prompted.
[5] MAC p 6, appeal papers p 30.
The appellant refers to the findings of Dr Selwyn Smith in his report dated 5 December 2019 in respect of self care and personal hygiene when placing Mr Collis in Class 3[6], and of
Dr Clayton [sic, Glenn] Smith in his report dated 28 February 2020[7] where, under current functioning, Mr Collis is recorded as stating that his self care has been impacted and that he requires prompting to shave. The appellant then makes the submission referred to in [18] above.[6] Appeal papers p 84.
[7] Appeal papers p 68.
In respect of concentration, persistence and pace, the appellant recites what the MA recorded in the MAC[8] then makes the submission referred to in [19] above. The appellant then contrasts this indication with what was recorded by Dr Selwyn Smith in his report dated 5 December 2019. Mr Collis submits that, having regard to the severity of the symptoms as described by him and those recorded by Dr Smith, he should more accurately be placed in Class 3 for concentration, persistence and pace rather than Class 2.
[8] Appeal papers pp 30 and33.
The appellant recites the Class 4 criteria for employability (severe impairment) and submits that the fact that he occasionally watches the internet a few hours a week is not consistent with constructive remunerable activity. Furthermore, the operation of the internet does not translate into skills and experience to pursue an occupation on the open labour market.
The applicant submits that, regrettably, the MA failed to identify whether he can work more than one or two days at a time, and less than 20 hours per fortnight. He submits that to date, and on the material available, he has demonstrated his symptoms are such that he cannot work at all and that he should be assessed in Class 5 for employability.
Respondent
In reply, the respondent submits that in response to the whole of the appeal, the MA is obliged to assess the appellant using his clinical skills and judgement, record his findings on examination, and correctly apply the relevant guidelines when assessing permanent impairment. He is also required to provide adequate reasons for his decision to allow his assessment of permanent impairment to be understood, and the basis for it. The MA is not required to follow or adopt the opinions of any doctors qualified by the parties, or to refer to each and every piece of evidence filed by the parties and provide reasons as to why he did not agree with it. The MAC is to be read as a whole to see if the correct result was achieved and not with an eye keenly attuned to the perception of error.
The respondent submits that the MA has complied with the dictates referred to in [30] and cites relevant authority in support thereof. The respondent submits that the MAC does not contain any demonstrable error and that the MA has correctly applied the criteria when assessing the appellant.
The respondent refutes the appellant’s submission referred in [25] above, submitting that the appellant has misconstrued the comments of the MA about needing prompting to go to the gym as extending to meaning that Mr Collis needs prompting to maintain his self-care and personal hygiene. Relevant portions of the MAC are quoted in support of this submission.
The respondent contrasts the criteria required for a Class 2 finding in respect of self care and personal hygiene with that for Class 3 in the PIRS, emphasising that the examples of activities given in the Table are exampled only, and that it is not necessary for an assessor to be satisfied of every nuance of categories.
The respondent submits that there is no error demonstrated in the MAC to show that
Mr Collis cannot live independently and needs prompting to shower and wear clean clothes. The MA recorded that the appellant was undertaking normal self care activities in the morning, and also makes reference to Mr Collis preparing his own meals. There is no evidence that he requires assistance from family members to ensure his hygiene and nutrition.The respondent submits that, while the MA was not obliged to follow or adopt the assessment of Dr Selwyn Smith or any other practitioner, both Dr Smith and Dr Glenn Smith assessed Mr Collis more than 12 months prior to the MA assessment, and that the history recorded by the MA may well be different to that recorded by the other two doctors due to the passage of time. In the MAC dated 2 July 2021, Professor Glozier recorded that the treating clinicians’ charts showed improved symptoms from 2019, and the appellant had shown slight improvement in function over that period, tolerating a reduction in his medication.
The respondent refers to the appellant’s addition of comments in the appeal submissions about the history he provided to the MA, asserting that is not evidence of demonstrable error. The respondent relies on Pitsonis in this regard.
In respect of concentration, persistence and pace, the respondent repeats the submission in respect of the addition of comments in the appeal submissions about the history he provided to the MA. The respondent submits that the appellant’s assertion that when he watches You Tube, he needed to watch the same video multiple times in order ‘for information to be acquired’, is not reflected anywhere in the MAC.
The respondent compares the descriptors for Class 2 and Class 3 of the PIRS with the findings of the MA recorded in the MAC, noting the ability of Mr Collis to watch videos and research cars, music and camping on You Tube for some hours and displaying no psychotic phenomena, although problems at times with distractibility. The focus on You Tube and other activities was for a reasonable length of time.
The respondent submits that the appellant can show no error which can be demonstrated on the face of the MAC.
In respect of employability, the respondent relies upon the findings of the MA in support of his assessment as being on Class 4. The respondent submits that by the MA making reference to the appellant’s ability to work a few hours a week in a role cited by him, that is, maintaining a job via digital methods and whilst working from home, the MA is referring to a computer based role. The appellant described his use of the internet as research which could be reasonably be said to be more involved than simply browsing the internet. It is indicative of an ability to use these research skills in a computer based role.
The respondent relies on the finding of an appeal panel in a case of Hunter New England Area Health Service v Greive[9] in support of its submission that the MA based his assessment of the appellant’s employability on transferable skills exhibited by him.
[9] M1-10449/08.
Based on the MA’s finding that Mr Collis would be able to work a few hours a week, although attendance at work would be intermittent, the respondent submits that Class 4 for employability was the appropriate PIRS classification. The appellant is not someone who cannot work at all.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[10] and NSW Police Force v Registrar[11].
[10] [2008] NSWCA 116.
[11] [2013] NSWCA 1792.
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.
For an appeal to be successful pursuant to s 327(3)(d) of the 1998 Act, that is the MAC contains a demonstrable error, there must be an error of fact or law which is readily apparent on the face of the MAC (NSW Police Force v Fleming[12]; Merza v Registrar of the Workers Compensation Commission[13]).
[12] [2010] NSWSC 216.
[13] [2006] NSWSC 939.
It is clear from the appellant’s submissions that he is relying on the contention that the MAC contains demonstrable errors in respect of the scales for self care and personal hygiene, concentration, persistence and pace, and employability. None of the submissions are directed to a contention that the assessment was made on the basis of incorrect criteria, which, while not defined in the 1998 Act, was considered by Wood CJ at CL in the Supreme Court in Campbelltown City Council v Vegan[14]. His Honour reasoned at [59] that:
“…the ‘criteria’ upon which assessment is to be based are to be found in any relevant guides, including guides issued by WorkCover which have been issued for the assessment of impairment and that appeal lies where they have been incorrectly applied.” (emphasis in original)
[14] [2004] NSWSC 1129.
The only other “ground” of appeal referred to in the appellant’s submissions, the availability of additional relevant information, has been dealt with above at [13]-[21].
The Appeal Panel will consider the three scales in respect of which submissions have been made by the appellant.
Self Care and Personal Hygiene
Class 2 of the PIRS for self care and personal hygiene is as follows:
“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 is as follows:
“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.”
Professor Glozier notes in the MAC dated 2 July 2021 when recording Mr Collis’ present symptoms that he gets up around 7am, gaining a long normal sleep duration. He describes ongoing motivation but with some limitations, enough energy to do what he needs to do day-to-day[15]. Later, under the heading “Social activities/ADL” Professor Glozier records that recently Mr Collis had been going to the gym, having been previously accompanied there by his partner Leanne, where he “…just puts his headphones on and gets into this”. The following history then appears:
“As his medications changed, he has become more motivated and engaged around the home. When he wakes he gets into the shower and exposes himself to light to counteract the sedating effects of Seroquel, He makes himself a cup of tea and may help his partner with lunch before she leaves. He may drive his boys to school. Leanne leaves him with a number of chores to do around the home. He does basic groceries and household chores, tidies up the garage etc.”[16]
Later Professor Glozier records that the appellant will make himself lunch and says that he is aiming for health eating, combined with his gym workouts to try and improve his health. He says that the appellant’s “…function appears to be somewhat similar as elicited today, with him undertaking normal self care activities when getting up in the morning”. Here,
Professor Glozier appears to be comparing Mr Collis’ function with that in 2020, when he previously assessed him, or earlier when he went on a cruise in 2018 and flew to Queenstown with Leanne, his partner, to watch her do a marathon.[15] Appeal papers p 26.
[16] Appeal papers p 27.
This history is replicated by Professor Glozier when giving his reason for the decision to place the appellant in Class 2:
“He reports doing a number of chores around the home,
cooking at times, shopping, maintains his own self-care
and goes to the gym although generally when prompted.”The Appeal Panel does not accept the appellant’s submission that the comment “…although generally when prompted” refers to anything other than going to the gym. It is quite clear that it refers to gym attendance only. When this finding is considered along with the other history summarised above, the Panel is of the view that the appellant should be assessed as Class 2 for self care and personal hygiene, and that the MAC does not contain a demonstrable error in respect of this PIRS category.
The appellant contrasts the findings of the MA with those of Dr Selwyn Smith on 4 December 2019[17] and Dr Glenn Smith on 27 February 2020[18]. The assessments of the appellant by those two doctors were made before the original assessment of Professor Glozier on 5 August 2020 which resulted in the MAC dated 20 August 2020, when he found that maximum medical improvement had not been reached. Professor Glozier noted in the MAC dated 2 July 2021 that the appellant’s treating clinicians’ chart showed improving symptoms from 2019 and that he had shown a slight improvement in function over the period from 2019. He disagreed with Dr Smith in a number of classes, primarily due to some improvement over time. A MA is obliged to assess permanent impairment in accordance with his or her clinical assessment of a claimant as they present on the day of assessment taking into account the claimant’s relevant medical history and all available relevant medical information[19].
[17] Appeal papers p 78.
[18] Appeal papers p 64.
[19] [1.6] of the Guidelines.
Concentration, Persistence and Pace
Class 2 of the PIRS for concentration, persistence and pace is as follows:
“Mild impairment: Can undertake a basis 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 of the PIRS for concentration, persistence and pace is as follows:
“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 of knitting.”
Professor Glozier says of the appellant:
“In terms of Concentration, Persistence and Pace he can watch videos and research cars, music and camping on You Tube for some hours and showed no impairment on presentation today or in my previous assessment, being a thorough and detailed historian, although reports some distractibility. His not watching television or reading newspapers, as noted by Dr Smith, appears predicated upon avoidance rather than a problem with concentration.”
This is repeated by the MA, in slightly more abbreviated form, in Table 11.8: PIRS Rating Form in the MAC[20]
[20] Appeal papers pp 30 and 33.
The appellant then relies on what he indicates in his submissions, that is that he requires to watch the same video multiple times in order for information to be acquired which is reflective of Professor Glozier’s reports of distractibility. As noted in [19]-[21] above, that is not additional information and does not constitute evidence to be considered by the Panel.
The appellant cites what Dr Selwyn Smith said of him in his report, that is that he is unable to read to any extent, that he does not watch television nor read newspapers and has difficulty in retaining knowledge. The appellant submits that Class 3 for concentration, persistence and pace is the appropriate classification rather than Class 2.
The Appeal Panel does not accept the appellant’s submission in respect of this category. Based on Professor Glozier’s recording in the MAC of what he found on the day he examined Mr Collis and having regard to the improvement he found in his condition since 2019, the Panel is of the view that Class 2, mild impairment, is the correct classification for concentration, persistence and pace. The Panel cannot find a demonstrable error in respect of this category.
Employability
Class 4 of the PIRS for employability is as follows:
“Severe impairment: cannot work more than one or two days at a time, less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”
Class 5 of the PIRS for employability is as follows:
“Totally impaired: Cannot work at all.”
In considering this ground of appeal the Panel notes what Bell P and Payne JA said at [94] in Ballas v Department of Education (State of NSW)[21]:
“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.”
At [95] their Honours said with reference to the facts of that case:
“In the present case, it was plainly ‘arguable’, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.”
[21] [2020] NSWCA 86 (Ballas).
The Appeal Panel notes that Professor Glozier has used his findings in respect of concentration, persistence and pace as the reason for placing the appellant in Class 4 for employability. He says in the MAC:
“In terms of Employability, I would suggest that with the patterns we have seen over COVID, many people have been able to maintain jobs via digital methods and whilst working from home. With the internet use he reports, he would be capable of working a few hours a week in such a role, although his attendance might be intermittent with some variability of symptoms.”[22]
This is repeated by him, in more abbreviated form, in Table 11.8: PIRS Rating Form in
the MAC.
[22] Appeal papers p 30.
For this reason the Appeal Panel finds error on the part of the MA in his assessment of employability. He has used the appellant’s use of the internet, which was the basis of his assessment for concentration, persistence and pace, to assess employability. This is contrary to what the Court of Appeal said in Ballas was the correct approach in assessing an injured worker pursuant to the different PIRS categories.
The Panel is also of the view that, in any event, spending hours watching videos and on You Tube on the internet researching cars, music and camping is not an indication of employability. Any employment that might be found with such “qualifications” is, in the view of the Panel, speculation only. There would be few, if any, jobs available to the appellant that he could obtain, noting that he is totally incapable of returning to his former role, or any other position that would place any stress upon him.
The Appeal Panel finds error on the part of the MA in respect of employability, and that
Mr Collis should be placed in Class 5.For these reasons, the Appeal Panel has determined that the MAC issued on 2 July 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons. Table 11.8 of the PIRS Rating Form required amendment in respect of the PIRS category of employability only. The amendment is shown in bold.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Samson Frederick Roberts 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) |
| Psychological injury/mind | 14 August 2019 (deemed) | Chapter 11, page 60, Table 11.8 | 11% | 11% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
WORKERS COMPENSATION COMMISSION
Table 11.8: PIRS Rating Form
| Name | Scott Collis | Claim reference number (if known) | |
| DOB | 24/10/74 | Age at time of injury | 44 years |
| Date of Injury | 14 August 2019 (deemed) | Occupation at time of injury | Leading Senior Constable Level two – NSW Police Force |
| Date of Assessment | 30 June 2021 | Marital Status before injury | De-facto |
| Psychiatric diagnoses | 1. Posttraumatic stress disorder |
| Psychiatric treatment | Regular consultations with psychiatrist and psychologist and medication |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision |
| Self Care and Personal Hygiene | 2 | He reports doing a number of chores around the home, cooking at times, shopping, maintains his own self-care and goes to the gym although generally when prompted. |
| Social and Recreational Activities | 3 | Although he reports spending a number of hours on the occasional lunches, with him not going out at night. |
| Travel | 2 | He will travel locally to pick up food, see his clinicians, go further or at night due to anxiety and arousal. |
| Social Functioning | 2 | He has remained very well supported by his new partner however few friends now. |
| Concentration, Persistence and Pace | 2 | He can watch and research cars, music and camping on distractibility. |
| Employability | 5 | He is totally impaired: Cannot work at all. |
Whole Person Impairment:
9%
There was a much more marked impairment in the early course of his treatment and after he left work. Even though his treatment has been reduced substantially, he has tolerated this and his impairment would indicate a substantial elimination of the impairment he had some two years ago, requiring a 2% addition for its effect.
Brett Batchelor
Member
Dr Michael Hong
Medical Assessor
Dr Julian Parmegiani
Medical Assessor
8 November 2021
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