Colquhoun v Secretary, Department of Customer Service

[2024] NSWPICMP 150

DETERMINATION OF APPEAL PANEL
CITATION:	Colquhoun v Secretary, Department of Customer Service [2024] NSWPICMP 150
APPELLANT:	Margaret Colquhoun
RESPONDENT:	Secretary, Department of Customer Service
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	14 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) correctly rated appellant’s impairment in psychiatric impairment rating scale for social and recreational activities and for concentration, persistence and pace; Appeal Panel found that the MA had regard to all relevant matters and adequately explained his reasoning for his ratings; Appeal Panel found it was open to MA to make the ratings he did based on the material before him and for the reasons he provided; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 17 November 2023 Margaret Colquhoun, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 October 2023.

2. The appellant relies on the following ground for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the MAC contains a demonstrable error.

3. 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.

4. Rule 128 of the Personal Injury Commission Rules 2021 (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.

5. 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).

RELEVANT FACTUAL BACKGROUND

1. The appellant suffered a psychological injury due to her workload in her employment with the Secretary, Department of Customer Services, the respondent. She claimed compensation against the respondent’s insurer under s 66 of the Workers’ Compensation Act of 1987 (the 1987 Act) for permanent impairment she said she had from her injury. She relied on a report of psychiatrist Dr Christopher Canaris dated 7 December 2022, wherein Dr Canaris advised he assessed the appellant had 21% whole person impairment (WPI) from her injury.

2. By notice dated 7 February 2023, issued in accordance to s 78 of the 1998 Act, the insurer advised the appellant it denied liability for her claim because it considered the degree of her permanent impairment from her injury was less than 15%. The insurer notified the appellant that it relied on reports of psychiatrist Dr Clayton Smith dated 31 August 2022 and 27 January 2023, wherein he advised that he assessed the appellant had 6% WPI from her injury. The insurer advised the appellant that her permanent impairment was required to be 15% or more, by virtue of s 65A (3) of the 1987 Act, for her to be entitled for compensation for permanent impairment from her injury.

3. A medical dispute thereby arose between the parties, and the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her disputed claim for compensation for permanent impairment from her injury. On 27 August 2023 a delegate of the President of the Commission referred the matter to the Medical Assessor to assess.

4. The Medical Assessor interviewed the appellant and conducted an examination of her on 16 October 2023 by means of an audio video platform. As mentioned, he issued the MAC on 23 October 2023, wherein he certified he assessed the degree of the appellant’s permanent impairment from her injury was 8% WPI.

5. The MAC reveals that the Medical Assessor, in accordance with clauses 11.11 and 11.12 of the Guidelines, assessed the appellant’s impairment by reference to the Psychiatric Impairment Rating Scale (PIRS). In the PIRS rating form attached to the MAC the Medical Assessor recorded he had rated the appellant’s impairment in the:

   (a)    PIRS for travel as class 1;

   (b)    PIRS for self-care and personal hygiene, and the PIRS for social and recreational activities, and the PIRS for social functioning as class 2;

   (c)    PIRS for concentration, persistence and pace as class 3, and

   (d)    PIRS for employability as class 5.

6. The Medical Assessor noted that the medium class of those scores was 2 and that the aggregate score was 15, which converted to 8% WPI. Hence, the Medical Assessor’s certification that that was the appellant’s degree of WPI from her injury.

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

2. As a result of that preliminary review, the Appeal Panel determined that it did not require the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that the Medical Assessor was wrong to rate her impairment in the PIRS for social and recreational activities as class 2 and ought of rated her impairment as class 3. The appellant submitted the Medical Assessor disregarded the fact that she only sees 2 of her 10 pre-injury friends and she is accompanied by a support people such as her partner on any outings on which she goes. The appellant submitted that she does not attend large gatherings. The appellant observed that Dr Canaris rated her impairment in this PIRS as class 3 and submitted that is “more appropriate”.

3. The appellant also submitted the Medical Assessor erred with respect to his rating of her impairment in the PIRS for travel. The appellant submitted that whilst she is able to travel locally alone, she nevertheless has anxiety and her cognitive impairments inhibit her ability to travel outside her area. The appellant submitted that she only travels outside of her area to see her parents and she does this with her partner. The appellant submitted that those matters “better fit with a class 2 rating as found by Dr Canaris” rather than class 1 which is what the Medical Assessor rated her impairment. The appellant submitted that her symptoms were such that her difficulty with travel could not be considered as being a minor deficit attributable to the normal variation in the general population.

4. In reply, the respondent submitted that more than a difference of opinion on a subject matter about which reasonable minds differ is required to establish error. The respondent submitted that the view that one class in the PIRS category is “more appropriate” than another is only a difference of opinion and is not sufficient to demonstrate error in the MAC. The respondent submitted that a Medical Assessor is required to exercise clinical judgment on the day of examination. The respondent submitted that it was open to the Medical Assessor “to use his skill, judgement and expertise to come to the conclusion that he did”.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

Rating under PIRS

1. An assessment of a worker’s impairment resulting from a psychiatric injury is, in accordance with paragraphs 11.11 and 11.12 of the Guidelines, done by reference to the effect a worker’s injury has in six categories of activity and function. Together these comprise the PIRS. For each category a Medical Assessor must classify a worker’s impairment as either no impairment, minor impairment, mild impairment, moderate impairment, severe impairment or total impairment. A Medical Assessor is required to allocate a score for each category with 1 being no impairment through to 5 which is total impairment.

2. A Medical Assessor when rating a worker’s impairment in a particular PIRS must rate the worker’s impairment at the time the assessment is done. The assessment must be based on the information available to the Medical Assessor at that time. That information will include the history the Medical Assessor obtains at the time of assessment, and the Medical Assessor’s clinical observations of the worker. The Medical Assessor is entitled to give pre-eminence to his or her clinical observation, over the observations of other clinicians, when rating the worker’s impairment.[2]

   [2] Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [65]-[71] (Parker); Ferguson v State of NSW [2017] NSWSC 887 at [23].

3. Clause 11.12 of the Guidelines includes a table for each of the rating scales wherein examples are provided of how a worker’s injury may affect a worker’s capacity in the particular scale to which the table relates. Clause 11.12 stipulates that “the examples of activities are examples only”. Hence, the examples are intended to provide only guidance or assistance to a Medical Assessor with the task of rating a worker’s impairment in the relevant scale. They are not prescriptive. What is important is the Medical Assessor’s evaluation of the material available to the Medical Assessor, so as to determine whether the worker has no, mild, moderate, severe or total impairment in a particular activity or function.[3]

   [3] Jenkins v Ambulance Service of NSW[2015] NSWSC 633 (Jenkins) at [65].

4. What all that means, is that to establish that a Medical Assessor has rated a worker’s impairment incorrectly in a rating scale, difference of opinion on the subject matter is not sufficient.[4] For an Appeal Panel to find error in a Medical Assessor’s rating, the Appeal Panel must be satisfied that it was not open to the Medical Assessor, based on the material before the Medical Assessor, which, as said, includes the history the Medical Assessor obtained and the Medical Assessor’s findings from observation of the worker, to rate the worker’s impairment as he or she did.[5] There must be error in the Medical Assessor’s evaluation of the material in order that the Appeal Panel can find a Medical Assessor erred with respect to the rating.

   [4] Parker v Select Civil Pty Ltd [2019] NSWSC 140 at [66]; Coenradi at [136].

   [5] Jenkins at [52]-[57]; Ferguson v State of NSW [2017] NSWSC 887 at [[23]-24]; Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [68]-[71].

5. The Appeal Panel considers that there is no error in the Medical Assessor’s ratings of the appellant’s impairment in the PIRS for social and recreational activities and the PIRS for travel.

Social and recreational activities

1. The examples provided for a class 2 and class 3 impairment in Table 11.2 of the Guidelines, which relates to social and recreational activities, are:

Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

1. In the PIRS rating form the Medical Assessor completed, which formed part of the MAC, he provided his reasons for rating the appellant’s impairment in social and recreational activities as class 2 and also provided a very short summary of the reasons Dr Smith and Canaris provided for their respective ratings. The content of that rating form relating to social and recreational activities is this:

Social and recreational activities	2	Dr Clayton Smith reported Social and recreational activities = 2, able to socialise with partner and two friends, on rare occasions, and family, and withdrawn from a range of social activities
		Dr Canaris reported Social and recreational activities = 3, goes out very occasionally with her partner, walking the dog, and less socially outgoing
		She said she previously had about 10 friends, but she became more socially isolated, so she now has two friends. She said she is in contact with her current friends about every couple of weeks to every month, and they meet up about every month or two. She said the last time they met up was about a month ago. She said when they meet up, she will go to their place for dinner, or they go to a local park for a walk. She said she tries to walk each day with her mother. She said every 2-4 weeks, she will go with Anton to visit his parents, who live in Wollongong.
		As she has been in regular contact with friends whom she sees regularly, albeit with reduced frequency, she has mild impairment.

1. The Appeal Panel considers that the Medical Assessor adequately explained his reasoning for rating the appellant’s impairment as class 2. Essentially it is that the appellant socialises with a couple of her friends, although far less a number of them than she did prior to her injury. The Medical Assessor recognised that the appellant was consequently more socially isolated than prior to her injury. Further, the Medical Assessor noted the appellant walks with her mother each day and, with her partner, visits her partner’s parents every fortnight or month.

2. The appellant does not highlight any relevant matter from the history the Medical Assessor obtained to which he did not have regard when assessing her impairment. In the Appeal Panel’s view the Medical Assessor took into account all relevant factual matters to assess the appellant’s impairment in social and recreational activities.

3. The Appeal Panel considers that the Medical Assessor’s explanation for his rating supports his rating of the appellant’s impairment in social and recreational activities as being mild. In substance, the appellant’s challenge to the Medical Assessor’s rating amounts to a difference of opinion. The appellant’s submissions do not point to a relevant matter the Medical Assessor ignored or to some flaw or error in his reasoning. The fact that some other examiner may consider it more appropriate to rate her impairment as class 3, indicates, as the respondent submitted, that there can be a difference of opinion about this matter about which reasonable minds might differ but that does not, as the respondent submitted, demonstrate error.

4. The Appeal Panel considers that it cannot be demonstrated from the MAC that the Medical Assessor’s rating is wrong.

Travel

1. The examples for a Class 2 and Class 3 impairment provided in Table 11.3 of the Guidelines, which relates to travel are:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

1. In the PIRS rating form, the Medical Assessor explained his reasons for his rating the appellant’s impairment in travel as class 1. He also again set out very briefly the reasons that Dr Smith and Dr Canaris provided for their respective ratings of the appellant’s impairment in this scale. They were as follow:

Travel	1	Dr Clayton Smith reported Travel = 2, uneasy leaving the house, but able to travel alone within the local area
		Dr Canaris reported Travel = 2, able to emerge, go round the block, and take her mother by car to see her sister, and go out to see her psychologist or partner, but not to the shops
		She has been able to drive, and she drives at least once a fortnight to Anton’s place, and when they go to Wollongong, she offers to share the driving and she drives her mother to see her aunt in the local area. She said she is usually a good driver, but she can get anxious when she drives to unfamiliar places or when there is a time limit, but she can still generally do so.
		She can generally drive in the local area, and more anxious driving to unfamiliar places, but still able to, so she has a minor impairment.

1. Again the Appeal Panel cannot decern any error with the Medical Assessor’s rating of the appellant’s impairment in this scale. The appellant says that she only travels outside of her area to see her parents and then only with her partner, but the history the Medical Assessor obtained, on which he was entitled to rely, is that the appellant is able to drive unfamiliar places, although with some anxiety. The appellant’s ability to do that does not correlate with the descriptors for a class 2 impairment but does for the descriptors for a class 1 impairment. Again, the fact that some other examiner may have considered it more appropriate to rate her impairment as class 2 indicates only that there can be a difference of opinion about this matter about which reasonable minds might differ. The fact that another examiner rated her impairment as class 2 does not demonstrate error. The Appeal Panel considers that the reasons the Medical Assessor articulated described a minor deficit in the appellant’s capacity for travel that falls within a normal variation for the general population. That is, she is capable of travel, but has some anxiety.

2. For these reasons, the Appeal Panel has determined that the MAC issued on 23 October 2023 should be confirmed.