Cook v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	Cook v Secretary, Department of Communities and Justice [2024] NSWPICMP 286
APPELLANT:	Jane Maree Cook
RESPONDENT:	Secretary, Department of Communities and Justice
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	10 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Appellant submitted Medical Assessor (MA) made errors with respect to his rating of her impairment in psychiatric impairment rating scale categories of travel and concentration, persistence and pace; Appeal Panel held MA’s ratings involved no error; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 November 2023 Jane Maree Cook, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 November 2022.
The appellant relies on the following grounds 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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
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.
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

The appellant commenced employment on 28 October 2022 as a social worker with a New South Wales government department, then known as Family and Community Services, and now known as the Department of Communities and Justice. The Secretary of that department, the respondent, is in accordance with s 26 (1) and part 1 of Schedule 1 of the Government Service Employment Act 2013 the employer of the appellant.
The appellant suffered a psychological injury due to incidents to which she was exposed in her employment in the period to 10 August of 2020. She claimed compensation from the insurer of the respondent for permanent impairment from her injury, relying on a report of psychiatrist Dr Richa Rastogi dated 2 September 2022 who assessed that the appellant had 19% whole person impairment (WPI) from her injury. The insurer denied liability for her claim. It relied on a report of psychiatrist Dr Tanveer Ahmed dated 23 January 2023.
Following the insurer denying her claim, the appellant instituted proceedings in the Personal Injury Commission (Commission) seeking the Commission determine her claim. A delegate of the President of the Commission referred the matter to the Medical Assessor on 28 June 2023 to assess various medical disputes relating to the appellant's claim, including the degree of permanent impairment of the appellant resulting from her injury.
The Medical Assessor examined the appellant on 16 October 2023 to conduct that assessment. In the MAC the Medical Assessor issued on 27 November 2023 he certified that he assessed the degree of the appellant's permanent impairment from her injury was 8% WPI. That assessment was based on the Medical Assessor's ratings of the effect the appellant's injury had in the six areas of her function and conduct that are specified in paragraph 11.11 of the Guidelines. Together these are known as the Psychiatric Impairment Rating Scale (PIRS).
In her appeal against the Medical Assessor's assessment of her permanent impairment, the appellant has challenged the Medical Assessor’s rating of her impairment in the PIRS category of travel and in the PIRS category of concentration, persistence and pace.
The Medical Assessor rated the appellant’s impairment in travel as Class 1. In the PIRS rating form within the MAC he provided the following reasons for his rating:
“Ms Cook advised she's able to drive a car alone or with passengers (e.g. children). When asked to estimate how long she thought she could drive a car alone, she replied, ‘probably a couple of hours’”.
Ms Cook has been able to catch a plane with her daughter.
Ms Cook was able to travel away from home with her partner, in earlier October 2023, for several nights.”
The Medical Assessor rated the appellant's impairment in concentration, persistence and pace as Class 2. He provided the following reasons for his rating In the PIRS rating form:
“Ms Cook advised she was able to watch a movie at home (> 2 hours) and follow the plot thereof. That said, Ms Cook advised that she was not able to watch tv series due to impaired concentration.
Ms Cook advised that she has been able to organise complex tasks, such as organising a medical assessment for her daughter to see a paediatrician, understand and implement the paediatrician’s recommendations, and communicate her daughter's needs with her teacher.
Ms Cook advised she can forget to attend personal or family meetings, such as the parent-teacher meeting for her daughter.
Ms Cook was able to manage her household for 3 weeks without her partner in June 2023, including providing care for her daughter and some care for her step-daughter.”
The Medical Assessor also observed in the MAC that the appellant was cooperative with the assessment he undertook and readily answered all his questions. The Medical Assessor noted that there were occasional pauses prior to the appellant answering some questions. The Medical Assessor did not note a consistent increased latency of the Appellant’s responses. The Medical Assessor recorded that the appellant’s thought form was logical and sequential with no formal thought disorder. The Medical Assessor found that the appellant described her ideas with appropriate degrees of elaboration and detail. The Medical Assessor recorded that the appellant was alert and oriented throughout the entire assessment and demonstrated no incapacity with respect to her attendance through the assessment which lasted for 1 hour and 45 minutes.
The Medical Assessor noted that Dr Rastogi had rated the appellant's impairment in the PIRS for travel and for concentration, persistence and pace “1 point higher” than his ratings. The Medical Assessor commented, with respect to that, that based the appellant’s description of her usual travel and her capacity to drive alone a rating of Class 1 was warranted. With respect to the appellant's concentration, persistence and pace, the Medical Assessor observed that Dr Rastogi had assessed the appellant one year earlier and that in that year that the appellant had been able to manage her day-to-day functions, which he said included complex functions, and had been able to manage herself and her household and her children alone for a period of three weeks in July. The Medical Assessor said that this indicated an improvement from when Dr Rastogi had assessed the appellant.
The Medical Assessor’s ratings of the appellant’s impairment in the other PIRS categories were Class 2 for self-care and personal hygiene, Class 3 for social recreational activities, Class 2 for social functioning and Class 5 for employability. The Medical Assessor observed that the median of his class scores is 2 and that the aggregate is 15. He recorded that that converts to 8% WPI and he certified that was the degree of the appellant's permanent impairment from her injury.

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 Procedural Direction PIC7.
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. This is because the Appeal Panel came to the view that the appellant has not established either of the grounds for appeal on which she relied, and consequently there is no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

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

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by rating her impairment in travel as Class 1 and erred by rating her impairment in concentration, persistence and pace as Class 3.
The appellant submitted that the Medical Assessor ought to have rated her impairment in travel as Class 2 because she is limited to driving a couple of hours and because she travels with her daughter.
The appellant submitted that the Medical Assessor’s reasons for rating her impairment as Class 3 in concentration and persistence and pace does not accord with and is not relevant to the descriptors provided for a Class 3 impairment in the Guidelines. The appellant submitted that the Medical Assessor made no reference to her ability or inability to undertake reading or to follow complex instructions. The appellant noted that when comparing his assessment with the assessment of Dr Rastogi, the Medical Assessor referred to her being able to manage day-to-day functions including complex functions but the appellant submitted the Medical Assessor did not identify what those complex functions were. The appellant referred to the Medical Assessor noting that she has an inability to concentrate while watching television. The appellant submitted that a Class 2 rating was an error and that the rating should have been Class 3.
In reply, the respondent submitted that the Medical Assessor's rating of the appellant’s impairment in travel as Class 1 was “entirely consistent” with the matters by reference to which the Medical Assessor assessed the appellant’s impairment. The respondent submitted that it was not necessary for the Medical Assessor to detail the complex functions that the appellant is able to do.

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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Appeal Panel does not accept the appellant submissions that the Medical Assessor erred by rating her impairment in the PIRS for travel as Class 1. Table 11.3 of the Guidelines, which relates to travel, provides the following descriptors for a Class 1 rating:
“No deficit, or minor deficit attributable to the normal variation in the general population: can travel to new environments without supervision.”
The descriptors provided in that table for a Class 2 impairment are:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The Medical Assessor detailed that the appellant is able to drive a car alone and also with passengers, including her children. He detailed that the appellant considered she could drive alone for a couple of hours. He also detailed that she has in the past travelled on a plane with her daughter and was able to travel away from home for several nights with her partner in October 2023.
The Appeal Panel observes that Dr Rastogi in her report of 2 September 2022 recorded that the appellant's children were then aged 9 and 10 years of age.
Driving a car with children and no other adult indicates, in the Appeal Panel’s view, no deficit in travel. The appellant would have to be able to drive a car safely to do this. Further, it is common knowledge that drivers should take a break from driving every two hours to ensure safety and avoid fatigue.[2] Consequently, in the Appeal Panel’s view, the limitation of the appellant being able to drive alone for two hours is either not a deficit or a minor deficit attributable to the normal variation in the general population.
[2] See for example mynrama.com.au/cars-and-driving/driver-training-and-licences/resources/stop-revive-survive
The fact that the appellant is able to travel on plane and also travel away for holidays also indicates, in the Appeal Panel's view, that she does not have any deficit in her function in travel.
The Appeal Panel considers that the Medical Assessor has identified the relevant matters by which to rate the appellant’s impairment with travel. The appellant did not in her submissions point to any matter within the evidence that that the Medical Assessor had neglected to consider. The Appeal Panel can discern no error in the exercise by the Medical Assessor of his clinical judgment in rating the appellant's impairment as Class 1 in travel. Indeed, the Appeal Panel agrees with it.
Table 11.5 of the Guidelines provides the following descriptors for a Class 2 rating in concentration, persistence and pace:
“Mild impairment: can undertake a basic retraining course or a standard course at slower pace. Can focus intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
The descriptors for a Class 3 impairment are:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In the PIRS rating form the Medical Assessor identified that the appellant is able to watch a movie for two hours and follows the plot. The Appeal Panel considers that being able to follow the plot of a TV show requires concentration.
The Medical Assessor has also identified that the appellant is able to organise medical assessments for her daughter and also understands how to implement the recommendations of the paediatrician and communicate those requirements to her daughter's teacher. In the Appeal Panel’s view that indicates that the appellant is able to follow complex instructions.
The Medical Assessor has also identified that for a three week period in June 2023 the appellant was able to manage, on her own, her household and that this task included ensuring the care of her two children, who then would have been 10 and 11 years of age.
The Appeal Panel notes that the activity of the appellant in managing her household on her own, with two children within it, involved two types of conduct on the part of the appellant: firstly, conduct in maintaining a relationship with her children; and secondly, concentration and persistence to ensure the household was managed. The Medical Assessor when rating the appellant’s impairment in concentration, persistence and pace has focused on the latter, and, in the Appeal Panel’s view, the appellant’s completion of that that task would require concentration and persistence.
These matters best correlate, in the Appeal Panel’s view, with an impairment falling within the descriptions provided for a Class 2 rating and do not correlate with the descriptors provided for a Class 3 rating. In addition to that, as the Appeal Panel noted earlier, the Medical Assessor recorded that the appellant over the course of 1 hour and 45 minutes during which he examined the appellant for the purpose of the assessment, was alert and orientated and spontaneous and cooperative and had logical and sequential thoughts with no thought disorder. That also accords with a mild impairment in concentration, persistence and pace, in the Appeal Panel's view.
The Appeal Panel considers that the Medical Assessor’s rating of the appellant’s impairment in concentration, persistence and pace as Class 2 involves no error.
The Appeal Panel consequently finds that the MAC does not contain a demonstrable error. Further, the Appeal Panel finds that the Medical Assessor based his assessment on the correct criteria, given that he assessed the appellant's impairment by reference to the criteria set out in Chapter 11 of the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 November 2022 should be confirmed.

[2024] NSWPICMP 286

10 May 2024