Cordingley v State of New South Wales (NSW Police Force)
[2023] NSWPICMP 579
•11 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cordingley v State of New South Wales (NSW Police Force) [2023] NSWPICMP 579 |
| APPELLANT: | Jon Cordingley |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 11 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment under the psychiatric impairment rating scale (PIRS); appeal with respect to two PIRS tables; worker sought to rely on a statement going to the history given to the Medical Assessor (MA); leave to rely on the statement refused; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, Pitsonas v Registrar of the Workers Compensation Commission and Anor referred to; leave to rely on statement declined; assessment was open to MA in the exercise of his clinical judgement; Held – Medical Assessment Certificate confirmed |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 July 2023 Jon Cordingley 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 16 June 2023.
Mr Cordingley 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 assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Cordingley was employed by the NSW Police Force for 26 years, completing his service at the rank of Sergeant and holding the position of Crime Coordinator in a regional crime prevention unit. In the course of his employment he suffered a psychological injury which is deemed to have occurred on 24 May 2021.
The Medical Assessor assessed 7% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS), placing Mr Cordingley in class 2 for self care and personal hygiene, social and recreational activities, social functioning and concentration, persistence and pace. The Medical Assessor assessed Mr Cordingley in class 1 for travel and class 5 for employability.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Carroll to undergo a further medical examination because there is sufficient information in the file to determine the appeal and the assessment made by the Medical Assessor was open to him.
Fresh evidence
Mr Cordingley seeks to rely on a short a statement dated 14 July 2023 in which he says that one aspect of the history recorded by the Medical Assessor is incorrect. Mr Cordingley said that the Medical Assessor said that he had most recently read a 400 to 500 page book during the month he had been in the UK and that he normally read a lot more. He said that he was certain he had told the Medical Assessor that had finished the book while in the UK but that it had taken 15 months to finish. He believed that the Medical Assessor misunderstood the length of his stay with his mother as the time taken to read the book.
Mr Cordingley submitted that the possibility of such a misunderstanding was greater in a video assessment than in a face to face assessment and that it would be unfair not to allow him to clarify his statement.
The Police Force said that the statement should not be admitted because it was not fresh evidence, citing the decision of Harrison J in State of New South Wales v Ali[1] (Ali) in which his Honour cited Petrovic v BC Serv No 14 Pty Limited[2] (Petrovic) and the decision of Adamson J in CSR Limited v Ewins,[3] both of which dealt with the ground of appeal in s 327(3)(b).
[1] [2018]NSWSC 1783.
[2] [2007] NSWSC 1156 at [31].
[3] [2020] NSWSC 511.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by them before that medical assessment.
We determine that the statement should not be received on the appeal.
In Petrovic, Hoeben J dealt with the ground of appeal in s 327(3)(b) but his Honour’s words are also relevant to an application to admit fresh evidence as to the conduct of an examination under s 328(3). His Honour observed that if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
In Lukacevic v Coates Hire Operations Pty Limited[4] (cited in Ali), Hodgson JA said:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[5]
[4] [2011] NSWCA 112.
[5] At [78].
Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[6] His Honour said:
“The Panel's reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.”
[6] At [100].
The alleged failure to take account of the matters described in the statement cannot, in any event, be a demonstrable error. A demonstrable error is evident on the face of the MAC. In Pitsonas v Registrar of the Workers Compensation Commission and Anor Mason P said:[7]
“I am therefore driven to conclude that s327(3)(d) uses ‘contained’ in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission[2006] NSWSC 939 at [39] (‘an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment’.)” (Emphasis in original.)
[7] At [49].
Mason P said:[8]
“Those [matters complained about] 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.”
[8] At [59].
We have determined that the statement should not be received on the appeal and that the reasons expressed in the authorities set out above preclude its consideration.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Cordingley submitted that assessment in class 2 for social and recreational activities is not reflective of the information provided to the Medical Assessor nor is it supported by the history in the MAC. He said that his impairment was more than mild because he no longer participated in his pre-injury hobbies. While he attends activities outside the home, he is always in company and he is affected by anxiety, including panic attacks.
The appeal with respect to concentration, persistence and pace is dependent on the admission of the further statement. The submissions noted that Dr Saboor (qualified for Mr Cordingley) had the same history as the Medical Assessor that Mr Cordingley can watch television and movies, he had the “correct” history with respect to reading and assessed him in class 3.
Mr Cordingley cited Wise v Sardale Pty Limited[9] (Wise) in which Hislop J said that an appeal panel is required to conduct a review de novo of the material before it.
[9] [2005] NSWSC 1264.
In reply, the Police Force submitted that Mr Cordingley had not identified a demonstrable error with respect to social and recreational activities, noting that he continues to ski, goes to the gym, travels to overseas countries, dines at restaurants, goes to the theatre, spends time with family and spent time with his mother in the UK. With respect to concentration, persistence, and pace, the Police Force said that Mr Cordingley had not identified a demonstrable error, and that a class 2 assessment was open to the Medical Assessor.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. An appeal panel does not conduct a complete review of the material as Mr Cordingley submitted, the legislation having been amended in 2010, after the decision on which he relied.
In Campbelltown City Council v Vegan[10] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[10] [2006] NSWCA 284.
The legislation has changed since the decision in Wise and our task is not to undertake a review de novo but to consider the grounds on which the appeal is made and to determine if the Medical Assessor has erred in the manner argued by an appellant in his application of the legislation and Guidelines.[11]
[11] New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 at [52].
Social and recreational activities
The examination took place while Mr Cordingley was overseas, visiting his mother.
The Medical Assessor took a detailed history with respect to Mr Cordingley’s social and recreational activities and we have set out that history at some length to highlight the matters he took into account in making his assessment. He said:
“In April 2022, Mr Cordingley travelled to the UK for 6 weeks to visit his family; his partner accompanied him for half of this trip. He explained that most of the time was spent with his family, however, he and his partner spent one weekend visiting a castle.”
And:
“In April 2023, Mr Cordingley left for overseas. He flew from Canberra to Melbourne to Bangkok. From there he flew to Vietnam for a holiday of one and a half weeks, his first visit to that country. He visited a number of cities in Vietnam, travelling by train and bus southwards from Hanoi, before catching an internal flight back to the capital. He then caught connecting flights to the UK.
In early May 2023, Mr Cordingley arrived in the UK, where he stayed until the time of the IME. He explained that he was spending time with his mother, as it was her birthday. He was planning to return to Australia in the week after the IME.”
When setting out Mr Cordingley’s present symptoms, the Medical Assessor said:
“Mr Cordingley also reported episodic anxiety, including panic attacks. He last experienced a panic attack four weeks prior to the IME whilst at London Heathrow Airport attributed to the crowds therein. He also reported experiencing panic attacks when in loud environments such as pubs.
…
He reported motivation to undertake various activities such as going to the gym or skiing. He reported persistent insomnia, commenting, ‘I don't sleep very well at the best of times… jetlag makes sleep worse’. He explained he typically takes melatonin prior to going to bed, which occurs around 22:00 - 23:00. He added, ‘I normally try and read, with an e-reader, until I go to sleep close’ stating this occurred typically within 30 minutes of going to bed. ... He stated that if he is in his usual residence, he may get up and read a book or play a game, however in his mother's home he has fewer options and tends to lie still.”
With respect to social activities and the activities of daily living the Medical Assessor said:
“Mr Cordingley … states he sometimes watches the rugby league and follows the St George-Illawarra team noting that they were currently ‘on the bottom of the table’. He stated, ‘I'll hope to ski in the winter’ on return to [New South Wales]. He stated he usually skis ‘a few times a week, for a few hours in the morning, two hours’. He says he usually has a season pass and will typically ski on his own, and as noted prefers to ski at Perisher to avoid having to drive to Thredbo.
When asked about social networks and contacts Mr Cordingley stated most of his social contacts were ‘mostly through the police for the last 25 years’, but added, ‘I do know a lot of people in [his town].’ That said, he did not nominate anyone in particular with whom he socialised on a regular basis. He explained his partner's family will come to stay with them from Wollongong once or twice a year. As noted, his partner's mother stayed with them for three weeks over the Summer holiday period. Her siblings and their families may also stay with them for periods of several days. Mr Cordingley and his partner have spent time with her family in the Wollongong area most recently in December 2022 when they spent three nights there staying with her mother.
Mr Cordingley stated he usually goes to the gym three times a week, by himself. He explained he will spend around 30 minutes undertaking low impact cardiovascular exercise, and then another 30 minutes engaged in resistance and weight training.”
The Medical Assessor described Mr Cordingley’s current level of function and said:
“Mr Cordingley said he did not go out very often at present, but noted he and his family were taking his mother out for her birthday on the day after the IME, going to a restaurant and a theatre production in Southampton. He said that whilst at home he does not go out often but may go to the local bowling club. He thinks he went out to the bowling club several weeks prior to his departure. overseas. He stated he ate at restaurants in Vietnam regularly.”
The Medical Assessor considered the other medical opinions in the file and said:
“The current assessment scored Mr Cordingley lower in the domains of Social & Recreational Activities (2 versus 3) on the basis that Mr Cordingley expressed an intent to go skiing on a regular basis on return to NSW, was going to the gym several times per week, and had recently been travelling in Vietnam for leisure. The current assessment scored Mr Cordingley as a 1 in the domain of travel, based on his description of being able to drive alone for extended distances within NSW, as well as his two international trips, including a trip to a new country, and demonstrated capacity to use a variety of modalities of transport (car, bus, train and plane). It is acknowledged that Mr Cordingley reported some avoidance of some local roads that reminded him of critical traumatic incidents, however, the reported restriction is a small proportion of the totality of his capacity to travel, and travel alone. It is further acknowledged that whilst Mr Cordingley had undertaken one overseas trip prior to Dr Saboor's evaluation, he had since taken a second, longer and more geographically varied trip in 2023.”
In the PIRS rating sheet, the Medical Assessor gave reasons for assessing Mr Cordingley in class 2:
“Mr Cordingley advised he is able to watch TV and movies, with others (concentration difficulties are rated below).
Mr Cordingley advised he has been able to read books on a regular basis, recently completing a crime fiction book of several hundred pages in a month.
On returning to NSW, Mr Cordingley advised that he was planning to ski several times per week. He typically goes skiing alone, for up to a couple of hours at a time.
Mr Cordingley advised he follows a rugby league team, watching some games on TV.”
There is limited medical information about Mr Cordingley’s treatment and his progress over time in the file. Mr Cordingley saw Dr Potter for the Police Force in October 2021 when his activities were restricted by the COVID-19 pandemic. He said that his interests and hobbies were fishing, skiing and travelling.
In his statement dated 24 October 2022, Mr Cordingley said that he did not leave his house as often as previously, and used to love going to the football, but avoided the situation because the crowd made him anxious and uncomfortable. The statement did not identify any other recreational activities which he no longer undertook.
Dr Saboor assessed Mr Cordingley in class 3 in his report dated 25 November 2022, one month after his statement was prepared and at a time when he had recently undergone inpatient treatment for his condition. The only reasons provided by Dr Saboor for his assessment were that Mr Cordingley used to play squash and has stopped doing so and that he does not do any recreational activities. Dr Saboor did not mention the overseas trip in 2022. There is no other reference to squash in the file, including in Mr Cordingley’s statement.
The Medical Assessor was required to assess Mr Cordingley on the day of his assessment,[12] not by reference to histories he had given to other practitioners some months before. The submission that Mr Cordingley no longer participates in his pre-injury hobbies is not supported by the history he gave to the Medical Assessor. Similarly, the submission that he is almost always in the company of friends or family when outside his home, and is affected by anxiety, including panic attacks, is not borne out by the evidence. The history obtained by the Medical Assessor was that Mr Cordingley had a panic attack in a crowded airport, and not that it was a frequent occurrence.
[12] Guidelines paragraph 1.6.
Each of the PIRS tables is assessed by reference to five classes. Class 1 applies where there is no impairment or “minor deficit attributable to the normal variation in the general population”, thus accepting that that the general population encompasses a wide range of capacity and behaviour. Assessment in class 2 connotes a mild impairment.
The history obtained by the Medical Assessor is consistent with a mild impairment. Mr Cordingley is able to undertake a range of activities for recreation and is able to undertake those activities without a support person. The reference in the examples in the PIRS table to a support person highlights the fact that activities undertaken for recreation and enjoyment can often be undertaken alone.[13]
[13] See Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [70]-[72].
Mr Cordingley was planning to ski several times a week on his return to Australia, an activity which for him can only be characterised as recreation. Though he travels to a different ski field to avoid driving on roads which triggered memories, he does not say that his condition impacts on his ability to undertake or to enjoy skiing.
When international travel involves visiting new places for leisure and does not involve only visits to family, it is properly described as recreation, as the Medical Assessor acknowledged. The evidence suggests that Mr Cordingley’s visit to Vietnam was travel for recreation.
The Medical Assessor explained clearly why his assessment was different to Dr Saboor’s. The assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement and he gave cogent reasons for it.
Concentration, persistence and pace
The Medical Assessor also took a detailed history relevant to the assessment of concentration, persistence and pace. He said:
“Mr Cordingley said that he is able to watch TV and movies; he did so on the night prior to the IME when he watched the movie 'Neverland' which he found ‘a very sad story… we both cried’. That said, he reported impaired concentration when watching movies, and states his partner sometimes gets frustrated with him as he has to stop and replay certain parts as he has sometimes difficulty following the plot. He states he uses a Kindle device to read books, but explained this was in part due to avoid losing his place within the book.
He stated he most recently read a 400 - 500 page book over the month he has been in the UK. He added, ‘I normally read more’”.
The Medical Assessor set out his findings on mental state examination, including:
“His thought form was logical and sequential, with no formal thought disorder… Mr Cordingley was alert and oriented throughout the assessment, and did not display any drowsiness or fluctuation in level of consciousness. He was able to maintain attention for the two hours of the interview.”
When discussing Dr Saboor’s report the Medical Assessor said:
“The current assessment rated Mr Cordingley as a 2 in the domain of Concentration, Persistence and Pace, on the basis of his report he was able to read lengthy books on a regular basis. The guidelines for a class 3 in this domain suggest, amongst other markers, being ‘unable to read more than newspaper articles’.
The marked disparity in the whole person impairment scores is explained by the difference in median classes (2 versus 3) more so than the aggregate scores (14 versus 17).”
The latter comment relates to the assessment generally. Mr Cordingley must be assessed in class 3 for both of the impugned categories if the assessment is to reach the threshold for an award of compensation.
The Medical Assessor recorded that Mr Cordingley is able to read and watch movies, albeit with the need to rewind sometimes. He relied on that ability in assessing Mr Cordingley in class 2 as well as his ability to read on a regular basis.
Even leaving aside the history about how much Mr Cordingley is able to read, the material in the MAC supports assessment in class 2. It is important to remember that a Medical Assessor is not limited to a worker’s history when assessing concentration, persistence and pace as he is with the other Tables. A Medical Assessor is able to assess the worker’s ability to concentrate and respond during the examination and his findings on his mental state examination are relevant. Mr Cordingley was able to maintain focus for a video assessment that lasted for two hours.
For these reasons, we have determined that the MAC issued on 16 June 2023 should be confirmed.
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