Cook v Secretary, Department of Education
[2024] NSWPICMP 224
•16 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cook v Secretary, Department of Education [2024] NSWPICMP 224 |
| APPELLANT: | Tracy Lee-Anne Cook |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 16 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against Medical Assessment Certificate (MAC) finding 6% whole person impairment; whether mistakes of fact made by Medical Assessor; whether all categories except employment assessed in error; Held – appeal incompetent; submissions sought to give evidence; appellant’s attention to detail slipshod, regrettable and lacking intellectual vigour; no authorities cited; no legislation cited; no impugned passages identified; submissions speculative and without support; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 October 2023 Tracy Lee-Anne Cook, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 2 June 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by a psychiatric/psychological disorder that occurred on a deemed date of 21 August 2019.
Ms Cook became a teacher in 1992 and taught years 7-12 in home economics and technological and applied studies. She gained a Head Teacher position in 2009 at Holsworthy High School, and then worked at East Hills Girls High School from 2017 until 19 August 2019, the deemed date of injury. She had been bullied and harassed by a head teacher, and when she heard a recording of this head teacher proposing to fabricate false information about her, she ceased work medically unfit.
The Medical Assessor found 6% WPI.
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.
The appellant requested to be re-examined by a Member of the Appeal Panel. As no demonstrable error was found, no re-examination was required.
EVIDENCE
Documentary 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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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. 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.
The appellant submitted that the Medical Assessor had made factual errors which amounted to demonstrable errors, and further submitted that the Medical Assessor had erred in the ratings he assessed for five of the six Psychiatric Impairment Rating Scale (PIRS) categories.
The MAC
The Medical Assessor took a consistent history of Ms Cook’s injury. His statement of reasons was thorough and considered, during which he noted that the video assessment took 75 minutes.
He described Ms Cook’s employment history in the body of the report. He said:
“She became a teacher in 1992 and performed work at the Eastfield Girl’s High School between 2017 and 21 August 2019. She was a full-time teacher and took hospitality classes.”[1]
[1] Appeal papers page 41.
In relating the history of the injury, the Medical Assessor said:[2]
“Ms Cook said the principal organised a transfer for her to go to Gymea High School, however, the headteacher called the other school and told them that Ms Cook was rebellious and did not follow instructions, which was untrue, and then that transfer could not proceed.”
[2] Appeal papers page 41.
In discussing Dr Teoh’s report at [10c] of the MAC, the Medical Assessor said:[3]
“Dr Ben Teoh, IME psychiatrist reported on 18 October 2022, noted Ms Cook lives alone and was bullied and the transfer to Gymea was withdrawn because the headteacher sabotaged the application.”
[3] Appeal papers page 46.
The Medical Assessor took a history regarding Ms Cook’s head teacher. He said:[4]
“She reported that she had a problem with the headteacher over several months, that she was being bullied and ‘set up’ without any reason. She had never done anything wrong and even the principal had told her that she was a good teacher and she did not understand why this headteacher would go after her.”
[4] Appeal papers page 41.
In giving his reasons for the impairment rating regarding the travel category in his PIRS. The Medical Assessor said:[5]
“Ms Cook is anxious and avoids places where she may have contact with the head teacher.”
[5] Appeal papers page 51.
As to medication, the Medical Assessor said:[6]
[6] Appeal papers page 41.
“Ms Cook is taking:
·Cholesterol-lowering medication
·Melatonin
·Anafranil, morning and night, 250 mg/24 hours
·Catnapers 100 mg morning and night
·Pristiq 100 mg
·Serenace 5 mg morning and night
·Aropax 20 mg in the morning
·Seroquel 200 mg at night
She also told me that because of previous adverse reactions to medication (Stevens-Johnson Syndrome), she avoided antidepressant medication initially.”
In considering Ms Cook’s present treatment, the Medical Assessor noted:[7]
“She has been consulting Ms Deborah Martin-Smith, psychologist this time for 2 years, recently every 2 weeks.”
[7] Appeal papers page 41.
The Medical Assessor placed some emphasis on Ms Martin-Smith’s evidence, as she had been treating Ms Cook for several years prior to the subject injury. He noted Ms Cook had started seeing her for prior injuries she suffered, possibly in 2014 and 2017.[8] The Medical Assessor commented on reports from Ms Martin-Smith dated:
· 7 January 2019;
· 27 March 2019;
· 1 November 2019;
· 19 August 2021, and
· 15 March 2022.
[8] Appeal papers page 42.
In describing Ms Cook’s present symptoms, the Medical Assessor said:[9]
“Ms Cook said that she normally was a high flyer. She successfully ran for the election. She was doing IVF to try and have a baby (her statement noted she came to terms with not having a child), she was hoping to become the Deputy Principal. She was into politics and good friends with one of the ex-prime ministers. However, Ms Cook said she is a very different person now and she does not want to socialise or see people.”
[9] Appeal papers page 42.
The Medical Assessor discussed the contents of a factual investigation report. He said:[10]
[10] Appeal papers page 47.
“Lee Kelly Investigations’ report 23 December 2022:
·I discussed this report with Ms Cook and she enquired regarding the source of the information, and I discussed that all documentation was provided by the PIC and agreed upon by the lawyers.
·I asked about building a walker and an exercise bike and she said that this was when she was in the house and she had a treadmill and she had to sell it because she could not move it to the apartment.
·1 August 2020 she sold a coffee machine and she said it was a one-off and she was not selling coffee on an ongoing basis.
·September 2022, she gave a positive review for Cronulla Carpets, she noted that when she moved to her apartment she organised for the floor to be changed.
·3 February 2022, noted that she followed instructions to build the exercise bike and walker.
· I note some of the supplied photographs, including a photograph with her brother next to the water in May 2022, photos with several politicians posted in March 2022, December 2021 on a boat behind Santa, which could have been a parade.”
The mental state examination the Medical Assessor recorded as lasting 75 minutes. On examination he said relevantly:[11]
“Ms Cook had long hair. There was no psychomotor slowing or abnormal movements. She was mildly restricted in her affect range and had normal reactivity. She spoke spontaneously and was talkative, and provided a coherent history. She recalled a reasonable amount of detail but was vague about her past psychiatric history. She remained attentive during the assessment and was not distracted. She maintained a normal speed and pace. Her memory was intact and she recalled information we discussed earlier in the assessment.”
[11] Appeal papers page 44.
Appellant submissions
The appellant’s first submission was that the Medical Assessor had made “demonstrable errors in history”, and these were particularised in 11 sub-paragraphs, which we now reproduce:
“a. The Applicant taught at East Hills Girls High School not at ‘Eastfield’.
b. The Applicant taught Technology and Applied Sciences not ‘Hospitality’.
c. The Applicant did not have a ‘problem with the Head Teacher’, she was bullied and harassed between 2018-2019 by the newly appointed Head Teacher (Ms Hook) [sic] The Applicant also made numerous complaints and attended failed mediations.
d. The Principal did not organise a transfer to Gymea Technology High School as stated.
e. The Applicant arranged a one year block teaching at Gymea Technology High School that come to an end due to direct contact and interference by Ms Hook.
f. The Applicant did not avoid medications as stated.
g. The Applicant commenced consultations with Deborah Martin Smith 19/8/19 (Date of Injury) and not ‘two years ago’ as stated by the AMS. She also saw Professor Davies since 2020 (Not referred to).
h. The Applicant did not state that ‘She did not want to socialise or interact with colleagues or friends’. She stated that she is unable to due to her injury.
I. The Applicant was not incapacitated by events in 2002 and this issue is not relevant to these proceedings.
j. The Applicants ‘Physical health issues’ during Covid referred to were work related carpal tunnel syndrome.
k. The side effects of Medication including trembling hands and legs, balance issues and feeling faint caused the fall in 2022 referred to.”
The appellant then addressed the classifications within the PIRS.
Self care and personal hygiene
It was submitted that the Medical Assessor had erred when he stated that Ms Cook did not need prompting as she initiated all her self care activities herself. She required, it was submitted, her mother to visit her for that purpose.
Social and recreational (ADL) activities
It was submitted that the Medical Assessor had fallen into error in assessing a category 3 rating. The error was that the Medical Assessor should have assessed a class 4. The reason was given “as the applicant does not leave her place of residence regularly except prompting of mother to try to walk the dog”.
Travel
This assessment was challenged because it was alleged that the Medical Assessor had relied on a photo of Ms Cook and her brother in Melbourne. This was said to be “misleading and incorrect”. The explanation was “the applicant lives in Sydney and her brother lives in Melbourne and has not been to Sydney since Christmas 2000.”
Similarly, Ms Cook referred to photographs of her with politicians as being relevant to the period 2009-2016 and were according not relevant to the assessment.
It was submitted that the Medical Assessor “did not discuss these issues with the applicant.” It was alleged he made “assumptions based on incorrect facts.”
Social functioning
It was asserted that Ms Cook “does not engage in any social activities and that she avoided phone calls and emails”. Ms Cook then referred to the photographs referred to above and stated that the Medical Assessor assessed any social functioning in error.
Again, it was submitted that the Medical Assessor did not discuss “this” and assessed this category on incorrect facts.
Concentration persistence and pace
Ms Cook submitted that she experienced “significant cognitive difficulties”. We were referred to the reports of both Dr Clayton Smith and Dr Teoh in that regard.
It was alleged that the Medical Assessor had therefore made a demonstrable error as he had “failed to note same.”
It was submitted that Ms Cook had “significant issues with concentration and that she became confused.” She referred to using handwritten notes during the interview with the Medical Assessor.
It was submitted that a further error had therefore occurred by his failure to refer to “this”.
Secretary, Department of Education (the respondent) submissions
The respondent referred to the submissions by the appellant and submitted that the medical assessor had in fact assessed the appellant using his clinical skills and judgment and that he had provided adequate reasoning for his assessment.
We were referred to Mahenthirarasa v State Rail Authority of New South Wales & Ors[12] as to the definition of a demonstrable error.
[12] [2007] NSWSC 22.
The respondent submitted that the appellant had failed to state how the alleged error had affected the assessment of each impugned PIRS category and the classes that should have been assessed therefore. The respondent submitted that the “demonstrable errors” were ultimately immaterial and that there were in fact no demonstrable errors.
The respondent addressed each of the alleged demonstrable errors in history, and then presented argument on the assumption that the factual matters asserted by Ms Cook’s submissions were established.
Discussion
The appeal must be dismissed. The Appeal Panel was surprised to be confronted with evidence in the form of submissions. We were also disappointed at the lack of intellectual rigour displayed by the appellant in the preparation of her submissions. No attempt was made to construct an argument which addressed the manner in which the alleged improperly raised factual errors were said to vitiate the assessment by the Medical Assessor. No authority was cited, and no legislation was referred to. We were not referred to any specific statement by the Medical Assessor and indeed an examination of his actual reasons did not substantiate the assertions made. We were unassisted by the casual and unprofessional approach taken by the appellant.
We have above reproduced the actual passages from the MAC which we assume were those complained of (there was no reference by the appellant to the exact impugned quote).
No submissions were made as to the effect of the Medical Assessor’s misdescription of East Hills High School as “Eastfield” High School. The misdescription did not affect the outcome, and in view of the detailed, thorough and considered reasons given by the Medical Assessor, the misdescription could not be advanced as an example of a generalised lack of attention to detail that affected the MAC. There appears to have been no consideration by the submission’s author as to its relevance in the circumstances of the case.
Similarly, the complaint that Ms Cook taught “hospitality” rather than technology and applied sciences does not appear to have any relevance, and certainly no submission was advanced that it was. Ms Cook in any event did take hospitality classes, as she stated on 8 March 2023.[13] The submission was pointless, and regrettable.
[13] Appeal papers page 64 at [16].
The appellant’s submission that she “did not have a ‘problem with the Head Teacher’” we had difficulty following. The Medical Assessor’s history was consistent with all the evidence that it was Ms Cook’s relationship with the Head Teacher, whom she said bullied and harassed her, that was the issue that caused her injury. We were not referred to the precise quotation where the Medical Assessor is said to have made that observation, and a careful search of the MAC failed to reveal any such statement, actual or inferentially. We were further bemused when the remainder of the submission contradicted her assertion in any event. It may even be that the appellant was being sarcastic and intended to convey that the relationship between the protagonists was much greater than simply being “a problem”. In any event the submission was contradictory, badly expressed and of no utility to Ms Cook’s case.
The appellant’s assertion that the Medical Assessor erred by stating that the Principal organised a transfer to Gymea Technology High School was incorrect and a misstatement of the facts. The Medical Assessor said that Ms Cook had told him that fact, not that it was correct. What issue the subject went to was not explained.
We have reproduced above the list of Ms Cook’s medications recorded by the Medical Assessor. It was quite untrue, and reflective of the casual and careless nature of the appellant’s submissions generally, to make the allegation that the Medical Assessor had stated that Ms Cook avoided medications. A more attentive reading would have caused the realisation that the Medical Assessor stated that Ms Cook was “initially” avoidant of antidepressant medication due to her past history with Stevens-Johnson Syndrome.
Ms Cook’s submission that the Medical Assessor had erred in stating that she commenced consultations with Ms Martin Smith ‘two years ago’ also demonstrated the slipshod preparation of her submissions. Again, we have reproduced what the Medical Assessor actually said, which was that Ms Cook had been consulting Ms Martin-Smith, “this time” for two years. Had the appellant taken the time to read the MAC fully, it would have been difficult for her to have not noticed the Medical Assessor’s comments on the reports of Ms Martin-Smith, dating from 7 January 2019.
As to the assertion that Ms Cook “did not want to socialise or interact with colleagues or friends”, again we have reproduced the Medical Assessor’s comments about her complaints, and again we were unable to locate the exact quotation used by the appellant. The context in which the Medical Assessor referred to Ms Cook’s socialising was that she had become a “different person now and she does not want to socialise or see people.” It was clear that Ms Cook said she was a different person as a result of her injury, and the appellant’s submission is, once more, without merit.
The remaining three alleged factual errors are similarly of little value. Statements that matters are “not relevant” without any supporting argument, random assertions about carpal tunnel syndrome without any explanation, and allegations about the effects of medication without context were of no assistance to our deliberations.
With regard to the submissions about the assessments for the impugned five PIRS categories, we make the following observations:
Self care and personal hygiene
As to this category, we looked through the evidence to find some justification for the assertion made in the submissions that Ms Cook did not attend to self care activities and required the assistance of her mother.
There was no such evidence within her statement of 8 March 2023.
Dr Teoh took no history of any such difficulty and indicated in his PIRS form a class 1 impairment for the reason “she has been lacking motivation to care for herself”.[14]
[14] Appeal papers page 75.
On 15 January 2023 Dr Sidorov, retained by the employer, found a class 2 impairment for self care and personal hygiene. He said:[15]
“There is evidence of a mild impairment. Ms Cook is able to live independently and looks after her self care but looks somewhat unkempt. She continues to maintain basic personal hygiene but takes less care with her grooming than she did in the past.”
[15] Appeal papers page 202.
We note that the Medical Assessor also found a class 2 impairment contrary to that of Ms Cook’s own medical expert, Dr Teoh.
We could not find any evidence that Ms Cook needed prompting or that her mother assisted her.
Social and recreational activities
The Medical Assessor allocated a class 3 impairment. Ms Cook’s expert also assessed a class 3 impairment and Dr Sidorov for the respondent assessed a class 2.
The complaint made by Ms Cook was that she did not leave her place of residence except to walk the dog on prompting from her mother. We note that:
i.Dr Sidorov in his report of 15 January 2023 noted that “[Ms Cook’s] mother prompts her walk on a daily basis.”[16]
ii.The Medical Assessor took a history that Ms Cook “walks everyday and walked the dog with her mother.”
iii.Dr Teoh took no history regarding either Ms Cook’s mother, or her dog.
iv.In his PIRS, the Medical Assessor said:
“She used to have an active social life and went out with her friends regularly.
She said avoids social recreational activities now.
She does not eat out with her friends or go to restaurants, except one time at a pizza shop.
She can tolerate visits from her family. Her parents visit her regularly. She leaves her place of residence regularly and therefore this is not 4.”
[16] Appeal papers page 145.
Table 11.2 provides the following examples of different classes:
Class 1 – no deficit or minor deficit attributable to the normal variation in the general population; regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
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.
The Medical Assessor we consider is generous in finding a class 3 impairment. It was not explained to us in the appellant’s submissions as to why a class 4 impairment was justified.
The submission contained an admission that in fact Ms Cook does leave her place of residence regularly to walk the dog. This is the very reason why the Medical Assessor did not award a class 4 impairment as he explained.
Travel
The Medical Assessor awarded a class 2 impairment.
Dr Teoh awarded a class 2 impairment and Dr Sidorov awarded a class 2 impairment.
Regarding the submissions as to why these assessments were made in error, Ms Cook needed to do more than simply refer to the photographs that were part of the desktop investigation and allege error by the Medical Assessor because he did not mention them in this category. There was no basis for the assertion that the Medical Assessor “appears to have made assumptions made on incorrect facts.”
The Medical Assessor did not refer to any photographs in discussing either this category or any other. The submissions are unfounded, speculative assertions of fact, entirely without merit or foundation.
Social functioning
The Medical Assessor assessed a class 2 impairment in this category.
Dr Teoh a class 3, and Dr Sidorov a class 2.
Again, the submission in this category was that the Medical Assessor “considered [the photographs] in the assessment of social functioning in error.” Ms Cook sought to give evidence which was not before the Medical Assessor, who said in his reasons:
“Her marital dissolution is unrelated to the work injury.
She is anxious and socially avoidant and ceased contact with most of her friends.
The relationship with her general family is good and they are close.”
We have reproduced above the comments made by the Medical Assessor as to the investigation report by Lee Kelly, which included mention of photographs at the last bullet point, namely:
“I note some of the supplied photographs, including a photograph with her brother next to the water in May 2022, photos with several politicians posted in March 2022, December 2021 on a boat behind Santa, which could have been a parade.”
It can be seen that the Medical Assessor made no reference to any photographs in his PIRS reasoning. The submission again is a mixture of supposition, speculation and unfounded theory.
Concentration persistence and pace
The Medical assessor found a class 2 impairment, Dr Teoh class 3 and Dr Sidorov class 2.
In this category the appellant referred to a report of Dr Clayton Smith of 13 January 2020 and also relied on Dr Teoh’s report of 18 October 2022.
We accepted the appellant’s invitation to peruse page 29 of the Reply containing Dr Clayton Smith’s report (even though the appellant described the report as appearing in the Application to Resolve a Dispute).
There is no relevant passage on that page and there is no reference to cognitive difficulties being experienced by Ms Cook.
At page 10 of Dr Teoh’s report again there was no mention of any significant cognitive difficulty, as alleged by the appellant.
DECISION.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 September 2023 should be confirmed.
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