Coskun v State of New South Wales (NSW Police Force)
[2022] NSWPICMP 265
•29 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coskun v State of New South Wales (NSW Police Force) [2022] NSWPICMP 265 |
| APPELLANT: | Ethem Coskun |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL: | |
| MEMBER | Catherine McDonald |
| MEDICAL ASSESSOR | Nicholas Glozier |
| MEDICAL ASSESSOR | Julian Parmegiani |
| DATE OF DECISION: | 29 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; use of the Psychiatric Impairment Rating Scale (PIRS); assessment of social functioning; assessment on the day of the examination; Ferguson v State of NSW and Parker v Select Civil Pty Ltd considered; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 March 2022 Ethem Coskun lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 February 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 of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
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
Mr Coskun was employed by the State of New South Wales (the State) as a
Senior Constable. He suffered a psychological injury as a result of the cumulative impact of events in the course of his employment, which is deemed to have been suffered on 8 February 2020. There is no dispute that the diagnosis is post-traumatic stress disorder (PTSD).The Medical Assessor assessed 9% whole person impairment (WPI) using the Psychiatric Impairment Rating Scale in the Guidelines. Mr Coskun has appealed in respect of the Medical Assessor’s assessment for social functioning only.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because the MAC does not disclose an error.
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 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. They are not repeated in full, but we have considered them.
In summary, Mr Coskun submitted that the MAC contained a demonstrable error because the Medical Assessor failed to correctly assess and evaluate the evidence when assessing social functioning and that assessment in Class 2 did not reflect the breakup of a long-term relationship in 2016 and that there had been a period of separation from his wife in 2021. He noted that the Medical Assessor placed weight on the fact that the relationship had been strained and was somewhat reconciled. He referred to his statement dated 25 October 2021, A/Prof Davies’ report dated 21 April 2021 and Dr Mayne’s report dated 24 March 2020.
He submitted that the Medical Assessor applied incorrect criteria in failing to assign the PIRS class in accordance with the Guidelines.
In reply, the State submitted that the history taken by the Medical Assessor was consistent with assessment in Class 2 and that Mr Coskun’s own history was inconsistent with assessment in Class 3. The State said that Mr Coskun’s complaint was a difference of opinion.
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, limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] 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.
[1] [2006] NSWCA 284.
The Guidelines set out some key principles of assessment in paragraph 1.6. Paragraph 1.6a begins:
“a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
·whether the condition has reached Maximum Medical Improvement (MMI)…”
The Medical Assessor was required to use his clinical judgement in determining a diagnosis and making an assessment.[2] He was required to assess him using the PIRS.
[2] Guidelines paragraph 1.6b.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
Paragraph 11.12 says that the classes “range from 1 to 5, in accordance with severity”. Class 1 of each of the scales in the PIRS is appropriate where there is “[n]o deficit, or minor deficit attributable to normal variation in the general population”. The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment, moderate impairment. What follows in each class are examples which demonstrate the level of impairment. In Jenkins v Ambulance Service of NSW[3] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[3] [2015] NSWSC 633 at [65].
In Ferguson v State of New South Wales[4] (Ferguson) Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”[5]
[4] [2017] NSWSC 887.
[5] At [24].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd[6] (Parker) and said[7]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
The MAC
[6] [2018] NSWSC 140.
[7] At [70]-[71].
It is only necessary for us to set out the parts of the MAC relevant to the assessment of social functioning. The Medical Assessor took a detailed history from Mr Coskun with respect to the injury and his treatment. He recorded:
“Mr Coskun has been with Stephanie, a make-up artist, for four years and married for two years. They separated at Stephanie's request between January 2020 in March 2020 because of his mental health challenges. They reconciled, and Mr Coskun described their relationship as good without serious argument or violence.
He also lives with his 21-year-old stepson, who has recently graduated from university.
He had been in an earlier long-term relationship that failed in 2016 due to his deteriorating mental health.
… He will say hello to other patrons at the gym but mostly sticks to exercise.
…
Before becoming unwell, he had an active social life, played indoor soccer, went fishing and enjoyed social barbecues.
He is uncomfortable now in crowds and has disengaged from most of his friends. He has occasional barbecues with his wife, stepson and his brother-in-law.
…
Despite the difficulties in his relationship in early 2020, he and Stephanie have reconciled. Mr Coskun said, ‘the relationship is better than it was, but our intimacy is still reduced.’ They do not argue.
He has good relationships with his stepson, mother, father, siblings, and parents-in-law. He maintains contact with one friend but has lost many friends because of his social disengagement.”
When commenting on the reports of other examiners, the Medical Assessor said:
“My impairment assessment agrees with Associate Professor Davies's on all domains except that of social functioning. He had determined a moderate impairment, noting the separation from his wife. Ten months have passed and Mr Coskun has reconciled with his wife, demonstrating a higher level of social functioning.”
Dr Vickery examined Mr Coskun for the State. The Medical Assessor said that he differed from Dr Vickery who had found that Mr Coskun suffered no impairment on four of the PIRS scales. The Medical Assessor said:
“Regarding social functioning, Dr Vickery also noted no impairment but made no mention of disengagement from his sizeable social group and mosque.”
The Medical Assessor gave the following reasons for assessing Mr Coskun in Class 2 for social functioning:
“He had a breakup of a long-term relationship in 2016. He has formed a new intimate relationship and has been with Stephanie for four years, married for two. Although they had a period of separation early in 2020, they have reconciled and resolved their issues. They now get along well, without serious arguments and with no violence. Mr Coskun also remains close to his mother, father, siblings, stepson, brother-in-law, and friend. He has lost contact with many friends because of his social disengagement.”
Mr Coskun’s evidence
Mr Coskun prepared a statement on 25 October 2021 for the purpose of the permanent impairment claim. The medical evidence from his treating doctors provided with the Application to Resolve a Dispute is all dated in 2020. Dr Mayne’s reports are short.
Associate Professor Davies saw Mr Coskun on 7 April 2021 and reported on 21 April. At that time, Mr Coskun was separated from his wife. A/Prof Davies’ report is fairly short, providing terse answers to a series of questions. Much of his report focussed on the injury. He noted that Mr Coskun was separated from his wife and living with his mother, confirming the brief separation prior to their reconciliation, some months prior to the Medical Assessor’s examination. A/Prof Davies assessed Mr Coskun in Class 3 for social functioning, saying only:
“Mr. Coskun's relationship with his partner has broken up because of his symptoms but he maintains contact with her.”
Consideration
As Campbell J noted in Ferguson, it is only appropriate for an appeal panel to intervene if the assessment made by the Medical Assessor is improbable. A difference of opinion about which assessors may differ does not disclose error. Like the submissions Harrison AsJ declined to accept in Parker, Mr Coskun’s submissions essentially say that assessment in a different class was “more appropriate” for social functioning.
Any doctor assessing permanent impairment was required to assess Mr Coskun as he presented on the day of the relevant examination and is directed by the Guidelines to consider if his condition had reached maximum medical improvement.
When A/Prof Davies saw Mr Coskun, he was separated from his wife though maintained contact with her. It was open to A/Prof Davies to assess Mr Coskun in Class 3 for social functioning at that time. He considered that Mr Coskun’s condition had reached maximum medical improvement, though noted there had been fluctuations in his ability to function over the years.
The obligation to assess Mr Coskun as he presented on the day of the examination required the Medical Assessor to disregard the significant fluctuations in his condition in the past. An assessment in February 2022 was likely to be different to the assessment which may have been appropriate at Mr Coskun’s worst level of functioning in the past.
When Mr Coskun saw the Medical Assessor he was no longer separated - he and his wife of four years had reconciled and Mr Coskun reported to the Medical Assessor that their relationship “is good without serious argument or violence”. Relying on this history and noting some loss of friends but otherwise good family relationships, the Medical Assessor used his clinical judgment to assess Mr Coskun in Class 2 for social functioning. The assessment was open to him.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 February 2022 should be confirmed.
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