Cox v Downer EDI Works Pty Ltd

[2023] NSWPICMP 15

DETERMINATION OF APPEAL PANEL
CITATION:	Cox v Downer EDI Works Pty Ltd [2023] NSWPICMP 15
APPELLANT:	Jason Cox
RESPONDENT:	Downer EDI Works Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	20 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of permanent impairment from psychiatric injury; whether Medical Assessor (MA) had proper regard to descriptors in Tables 11.1 and 11.5 of the Guidelines; whether MA had proper regard to history when assessing worker’s impairment in psychiatric impairment rating scale (PIRS) categories of Self-care and personal hygiene and concentration, persistence and pace; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 16 November 2022 Jason Cox (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 October 2022.

2. The medical dispute that that was referred to the Medical Assessor to assess related to the degree of permanent impairment the appellant had from a psychiatric injury he suffered on 6 October 2016. That injury occurred when the appellant attended a truck accident as part of this employment with Downer EDI Works Pty Ltd, the respondent, and seeing the incinerated bodies of the drivers of the two trucks involved in this accident. The appellant developed post-traumatic stress disorder as a result of this.

3. The respondent paid the appellant weekly compensation until 16 August 2022. It ceased doing so from that date because it contended the degree of the appellant’s permanent impairment from his injury was less than 20%. Under s 39 of the Workers Compensation Act 1987 (the 1987 Act), the appellant was only entitled to weekly payments of compensation for an aggregate period of 260 week unless his permanent impairment from his injury exceeded 20%. The respondent’s insurer had written to the appellant on 1 April 2021 and advised the appellant of its intention to cease weekly payments of compensation to him from 16 August 2022. The insurer advised him it relied on a report dated 20 September 2019 its solicitors had obtained from psychiatrist Dr Aman Suman, who had examined the appellant on 12 September 2019 and who, in his report, advised he had assessed the appellant had 19% whole person impairment (WPI) resulting from the appellant’s injury.

4. The appellant’s solicitors subsequently sought to persuade the insurer to change its decision and to that end provided the insurer with a report it had obtained from psychiatrist Dr Richa Rastogi dated 29 May 2022 who had assessed the appellant had 24% WPI from his injury. The insurer however wrote to the appellant’s solicitors on 22 June 2022 advising them that it would not be changing its earlier decision. The appellant thereupon instituted proceedings in the Personal Injury Commission (Commission) seeking “assessment as to whether the degree of permanent impairment is more than 20% (section 39, Workers Compensation Act 1987)”.

5. That medical dispute was then referred to the Medical Assessor by a delegate of the President the Commission. The Medical Assessor conducted an examination of the appellant on 19 October 2022, and certified in the MAC he issued in response to the referral that he assessed the appellant had 19% WPI from his injury. That was based on the Medical Assessor rating the appellant’s impairment in the several Psychiatric Impairment Rating Scales (PIRS)

   Self care and personal hygiene              Class 2

   Social and recreational activities            Class 3

   Travel   Class 2

   Social functioning  Class 3

   Concentration, persistence and pace      Class 2

   Employability   Class 5.

6. The appellant relies on the following grounds for 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,

   ·        the MAC contains a demonstrable error.

7. A delegate of the President is satisfied that, on the face of the appellant’s application, at least one ground of appeal has been made out, and accordingly, the appeal has progressed to the Appeal Panel, which has conducted a review of the original medical assessment but limited to the grounds for appeal on which the appeal is made.

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 WorkCover Medical Assessment Guidelines 2006 (the Guidelines). As a result of that preliminary review, the Appeal Panel determined that it was not necessary for 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 confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment. Further, in such circumstance, the Appeal Panel does not have power to examine the appellant.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [135].

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.

THE MAC

1. The appellant’s appeal relates to the Medical Assessor’s rating of his impairment in the PIRS category of self-care and personal hygiene and concentration persistence and pace.

2. Relevant to that, the symptoms that the Medical Assessor recorded in the MAC that the appellant reported to be currently suffering included that he had reduced interest and motivation, anergia, that he had settled into a somewhat demotivated and avoidant lifestyle and that he experienced difficulty motivating himself to cognitive tasks.

3. Regarding the appellant’s engagement in social activities and activities of daily living, the Medical Assessor noted that prior to the appellant suffering injury he lived with his then wife, would maintain a vegetable patch and do the lawns and house maintenance and some cooking and cleaning. The Medical Assessor noted that the appellant enjoyed camping, fishing and hunting with friends and would socialise at a club with his friends and occasionally with his wife. The Medical Assessor noted that the appellant would undertake car repairs and kept his cars intact and was always interested in the maintenance of them and read car manuals to do that.

4. The Medical Assessor noted that subsequent to the appellant’s injury the appellant has lived with his daughter and her boyfriend, neither of whom work. The Medical Assessor noted that the appellant described his daughter as his carer but the Medical Assessor said that it was difficult to elicit how the appellant’s daughter actually cares for the appellant. The Medical Assessor noted his daughter maintains the house that she and her partner live in and does more shopping than the appellant. The Medical Assessor noted that the appellant is able to shower and wash and clean himself and puts on some washing and hangs it out in the morning. The Medical Assessor noted that the appellant recently had clipped his beard. The Medical Assessor noted that the appellant has no interest in eating for much of the day but eats dinner daily and has maintained a fairly stable weight. The Medical Assessor noted the appellant does some of his own shopping although he dislikes going to crowded shops and consequently gets in and out quickly.

5. The Medical Assessor noted that the appellant makes V8 model cars with his son and that the appellant described being able to follow instructions to do this. The Medical Assessor noted that the appellant has a 2007 Holden Commodore and that if it needs repairs the appellant does them. The Medical Assessor noted that the appellant had lost some of his motivation to fix the carburettors and that he has recently built for a Mini. The Medical Assessor noted that the appellant described sitting around his lounge room or bedroom for much of the day watching YouTube and doing a bit of research and some basic chores or watching TV. The Medical Assessor noted that the appellant can watch a whole wildlife documentary or watch some of the news and catch up with recent events but avoids road traffic triggers. The Medical Assessor noted that the appellant does his own budgeting, pays his bills on line and researches car parts and repair tutorials and does email on his computer.

6. The Medical Assessor recorded the following findings from his mental state examination of the appellant:

   “Mr Cox presented quite differently than some of the others have seen him. He was casually-dressed and well-kempt with a recently-trimmed beard. He showed a good focus, concentration, and recall for over 60 minutes, e.g. the details of his medication and other aspects of his life. His affect was reactive and he quite frequently smiled with no overt anxiety or misery. He describes an ‘average mood’, little in the way of enjoyment but not a pervasive anhedonia. He describes reduced motivation and other cognitive features of depression. He does not have intrusive untriggered recollections but will be triggered by trauma-related events into short periods of anxiety where he has to use breathing techniques to help bring his anxiety down. He does not have panic attacks. He has not had nightmares for some time and describes a normal sleep duration with poor efficiency and only borderline middle insomnia. He has some quite entrenched safety and avoidant behaviours, and describes having some increased vigilance and startle when out, but no psychotic phenomena.”

7. The Medical Assessor provided the following “summary of injuries and diagnoses”:

   “Mr Cox developed a Post-Traumatic Stress Disorder with associated Major Depressive Disorder and Alcohol Abuse Disorder following the events in 2016. He has had prolonged and intensive treatment over the years. From the contemporaneous documentation his condition has fluctuates somewhat in terms of the absolute level of severity and impairment although appears to have been fairly stable for some years within a small range, depending upon the external stressors and degree of treatment. Currently his Post-Traumatic Stress Disorder would be considered as in partial remission. His Major Depressive Disorder would also be similarly considered or he would meet the diagnostic criteria for a Persistent Depressive Disorder. Although drinking at a hazardous level, this is not at the level of a substance Abuse Disorder currently.”

8. The Medical Assessor noted in the MAC that he based his assessment of the appellant’s WPI on the history he obtained and his examination of the appellant. The Medical Assessor said that he took into account:

   “the temporal fluctuation of his symptoms and impairment within the range that it occurs, having reviewed the other assessments obtained previously at different times when he does appear to have been more symptomatic and very carefully considered the PIRS Categories that he presents at the moment, at this time of assessment and recently from the history elicited”.

9. The reasons that the Medical Assessor provided in the PIRS Rating Form attached to the MAC for assessing the appellant’s impairment in the PIRS category of self-care and person hygiene as Class 2 were that “he reports being able to shower and do his self-care e.g. trimming his beard, do basic chores around the home, and some shopping”.

10. The reasons the Medical Assessor provided in that table for rating the appellant’s impairment in the category of concentration, persistence and pace as Class 2 were as follows:

    “He can watch television for over an hour, does his own car repairs, makes models with his young son, and watches YouTube for tutorials on car repairs. He displayed no concentration, focusing or persistence difficulties within the assessment today although I noted he does have these outside of this”.

11. The Medical Assessor noted that his assessment of the appellant’s impairment in the category of concentration, persistence and pace differed from that which Dr Rastogi had provided in a report of 29 May 2022. The Medical Assessor noted that Dr Rastogi described the appellant as being “tormented by intrusive traumatic memories and plagued by anxious cognitions of fear”. The Medical Assessor remarked that neither of those characterised the appellant’s clinical presentation before him. The Medical Assessor noted that Dr Rastogi also recorded that the appellant was fully orientated to time, place and person and described no cognitive abnormalities within her mental state assessment of the appellant.

12. The Medical Assessor further noted that his assessment of the appellant’s impairment differed from that which Dr Suman provided in his report of 20 September 2019 with respect to the PIRS category of concentration, persistence and pace. The Medical Assessor remarked that the appellant’s mental state at the time of his examination “was improved compared to that described by Dr Suman”.

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 history the Medical Assessor obtained indicated that the appellant cannot live independently without regular support which supported a Class 3 rating in the category of self-care and personal hygiene. The appellant submitted that he had described his daughter as his carer and the Medical Assessor noted that his daughter maintains the house. The appellant submitted this indicates he receives regular support from his daughter. The appellant submitted that the Medical Assessor did not enquire as to whether he would be able to live independently without his daughter. The appellant noted that Dr Rastogi obtained a history that his daughter provides frequent prompting with respect to meals and showering and that his daughter had taken over management of the house and manages his meals and duties.

3. The appellant noted that the Medical Assessor obtained a history that he was able to shower and do his self-care and some chores and shopping, but the appellant submitted that his ability to do such activity is not the same as his actually doing the activities. The appellant noted that Dr Rastogi obtained a history that he does not shower for days and needs prompting and skips meals.

4. The appellant submitted that this supported a Class 3 rating for self-care and personal hygiene.

5. The appellant noted the history Dr Rastogi obtained that his daughter had taken over care of the house and managed all meals and the appellant submitted that this indicates he does not prepare his own meals. The appellant submitted that also supports a Class 3 rating for self-care and personal hygiene.

6. The appellant submitted that the history the Medical Assessor obtained that he has entrenched avoidance and lack of motivation and a degree of anergia is inconsistent with the Medical Assessor finding that he would be capable of undertaking a basic retraining course. The appellant submitted that before his injury he had the capacity to read car manuals in order to undertake car maintenance but subsequent to his injury he watches YouTube for tutorials on car repairs and now has a “passive consumption of media”. The appellant noted that in his statement he said he was unable to read more than newspaper articles. The appellant submitted that this supports a Class 3 impairment in concentration, persistence and pace.

7. The appellant submitted that his assisting his son to build model cars does not amount to his following complex instruction without difficulty. The appellant submitted that as he is unable to rely on written car manuals but rather uses YouTube tutorials, that indicates his having difficulty in following complex instructions which warrants a Class 3 rating for his impairment in concentration, persistence and pace.

8. The appellant submitted that his losing motivation to fix carburettors also supports a Class 3 rating for concentration, persistence and pace.

9. The appellant submitted that his maintaining his 2007 Holden Commodore in reasonable condition does not indicate that he is capable of significant car repairs without difficulty which also supports a rating of Class 3 in the category of concentration, persistence and pace.

10. The appellant submitted that the Medical Assessor observing from his mental state examination of him that he had no difficulty with concentration, focusing or persistence is inconsistent with the Medical Assessor also finding that he does have those difficulties outside of the examination. The appellant submitted that because of that it is unclear how the Medical Assessor arrived at a rating of Class 2 in the category of concentration, persistence and pace. Further, the appellant submitted that his ability to concentrate in a single medical appointment should weigh as only a small consideration of his impairment in concentration, persistence and pace, noting his significant difficulties elsewhere in his life.

11. Broadly, the complaint of the appellant with respect to the Medical Assessor’s assessment of his impairment in the PIRS categories of self-care and personal hygiene and concentration, persistence and pace is that the Medical Assessor did not have proper regard to the descriptors provided in the Guidelines for making as Class 2 or 3 rating for those respective categories and that the Medical Assessor also did not have proper regard to the history he had obtained and the history that Dr Rastogi had obtained when assessing his impairment in those categories.

12. In reply, the respondent submitted that it is inconsequential that the appellant’s daughter maintains the house and manages all meals in the circumstance where the appellant is living in the same house as his daughter. The respondent noted that the appellant has been able to maintain a stable weight for some time and that he had recently clipped his beard and had conceded that he was able to shower, wash and clean himself and is able to do his own washing. The respondent noted that the Medical Assessor noted that the appellant was more symptomatic at the time that Dr Rastogi examined the appellant than at the time he examined the appellant.

13. The respondent submitted that the appellant’s submissions with respect to the Medical Assessor’s assessment of his impairment in the category of concentration, persistence and pace indicates the appellant had adopted “a rigid application of what the Guidelines clearly stipulates are to be regarded as ‘examples’”.

14. The respondent noted that a difference of opinion between one assessor and another does not substantiate the MAC contains a demonstrable error. The respondent referred to authority that a Medical Assessor is entitled to give pre-eminence to his or her clinical observations of a worker. The respondent noted that the Appeal Panel ought not to comb through the Medical Assessor’s analysis with a fine appellate comb to ascertain whether the MAC contains a demonstrable error. The respondent highlighted the several activities that the Medical Assessor recorded in the MAC that the appellant is able to do that supported the Medical Assessor’s assessment of the appellant’s impairment in the category of concentration, persistence and pace.

15. The respondent submitted that there was no basis to contend that the Medical Assessor had assessed the appellant with respect to incorrect criteria or that his assessment or that the MAC contained a demonstrable error.

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.

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

2. The Guidelines at [11.11] require a Medical Assessor to assess a worker’s impairment from a psychiatric injury by reference to the effect the injury has in six areas of activity and conduct. These are the PIRS categories. A Medical Assessor must classify the worker’s impairment in each category within one of five classes, ranging from mild to total impairment. Several tables are contained within [11.12] of the Guidelines which provide descriptors of activities and function for each class of impairment for each of the PIRS categories, that the Medical Assessor can consider when evaluating what a worker’s impairment is in the relevant category. The Guidelines make clear however at [11.12] that these descriptors provide examples only of how a worker’s injury may affect a worker. They are not prescriptive.[2]

   [2] See Jankins v Ambulance Service of NSW [2015] NSWSC 633 at [65].

3. The Medical Assessor must ultimately use clinical judgment to determine a worker’s impairment in each PIRS category. The Medical Assess in doing so is able to give pre-eminence to his or her clinical observations of a worker during examination of the worker.[3] As the respondent submits, there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish an error on the part of a Medical Assessor. In other words, assuming that the history that a Medical Assessor obtained with respect to a worker’s injury is the same as that obtained by another medical examiner but the Medical Assessor’s opinion of the worker’s impairment differed from that other assessor, that of itself is not sufficient to establish error on the part of the Medical Assessor. Further, the fact that an Appeal Panel, which is an expert panel constituted by two medical experts and a member of the Commission, may have a different opinion with respect to a worker’s impairment than that of the Medical Assessor whose certificate the Appeal Panel is reviewing does not constitute an error, absent the Medical Assessor’s assessment being glaringly improbable or the Medical Assessor being unaware of significant factual matters or the Medical Assessor having a misunderstanding of relevant matters or having adopted an unsupportable reasoning process with respect to the assessment.[4]

   [3] See Coenradi at [135]; Ferguson v State of NSW [2017] NSWSC 887 at [23].

   [4] Ferguson at [24]; Coenradi at [136].

4. The descriptors provided in Table 11.1 of the Guidelines, which relates to the PIRS category of self-care and personal hygiene, for a Class 2 and Class 3 impairment are:

Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.

1. The descriptors provided in Table 11.5 of the Guidelines for a Class 2 and Class 3 impairment for the category of concentration, persistence and pace are as follows:

Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

1. The Appeal Panel considers, when reading the MAC as a whole, that the Medical Assessor has appropriately considered the descriptors provided in Table 11.1 when assessing the appellant’s impairment in the category of self-care and personal hygiene. As the Medical Assessor stated in the MAC, he considered the history he obtained, the appellant’s objective presentation and the documentation he was provided. The Medical Assessor took account of the fact that the appellant’s symptoms fluctuated in terms of their severity.

2. The Appeal Panel considers that the Medical Assessor has exercised his clinical judgment to determine, by reference to those matters, the appellant’s function in self-care and personal hygiene at the time the appellant presented to the Medical Assessor for assessment. The Medical Assessor has, by using the criteria within Chapter 11 of the Guidelines, made his assessment based upon the correct criteria.

3. Further, the Appeal Panel considers that based on the history the Medical Assessor obtained and the reasons he provided for his rating of the appellant’s impairment in the category of self-care and personal hygiene that it was open to the Medical Assessor to rate the appellant’s impairment in this category as mild. Indeed, the Appeal Panel would have rated it the same. The Appeal Panel highlights that the Medical Assessor noted that the appellant is able to shower and do his self-care and do basic chores around the home and some shopping. Further, the Medical Assessor obtained a history that the appellant eats his dinner regularly and has maintained a fairly stable weight over time. The Medical Assessor obtained a history that the appellant’s daughter and her partner, neither of whom work and with whom the appellant resides, maintain the house rather than the appellant and do more shopping than the appellant. In the Appeal Panel’s view, and noting the appellant’s other capacities in terms of his self-care and hygiene the fact that the appellant may not maintain the house in which his daughter and her partner reside, does not indicate that his impairment in self-care and personal hygiene is other than mild.

4. In the Appeal Panel’s view the Medical Assessor’s assessment of the appellant’s impairment in the category of self-care and personal hygiene accords better with the descriptors provided in Table 11.1 for a Class 2 impairment than the descriptors for a Class 3 impairment. Based on the history the Medical Assessor obtained it could not be concluded that the appellant’s impairment is moderate. It could not be concluded that he could not live independently without regular support or needs prompting to shower or wear clean clothes or is unable to prepare his meals. Rather, he regularly eats his dinner and has maintained a stable weight. He is able to shower and prepare his meals and go shopping and attend to his own needs. The fact that he may not do these all the time is not to the point, given that he is able to do these activities. His capacity to do them is the measure of his functioning in this area of activity, by which his impairment is to be assessed, and that is what the Medical Assessor did.

5. The Appeal Panel also considers that the Medical Assessor applied the correct criteria when assessing the appellant’s impairment with respect to his function in concentration, persistence and pace. Again this is because the Medical Assessor applied the criteria set out in Chapter 11 of the Guidelines. Further, the Appeal Panel considers that the Medical Assessor’s assessment of the appellant’s impairment in the category of concentration, persistence and pace was open to him and, for the reasons the Medical Assessor explained in the PIRS Rating Form attached to the MAC, the Medical Assessor’s assessment was appropriate. Indeed, and again, the Appeal Panel would have assessed the appellant’s impairment in this category the same. The activities that the appellant is able to perform indicate that he has only a mild impairment in concentration, persistence and pace, as the Medical Assessor determined. As the Medical Assessor explained the appellant is able to do his own car repairs and makes models of cars and watches tutorials on You Tube to enable him to do so. That indicates a mild impairment in concentration, persistence and pace only. Further the appellant’s presentation during the Medical Assessor’s examination of him indicated he had no difficulties in concentration, focusing or persistence.

6. It does not matter that the Medical Assessor assessed the appellant’s impairment in the category of concentration, persistence and pace differently from what Dr Rastogi had assessed it to be and what Dr Suman earlier had assessed it to be. This is because the appellant’s presentation at the time of examination by the Medical Assessor differed from his presentation at the time the appellant was examined by Dr Rastogi, as the Medical Assessor observed in the MAC, and the Medical Assessor was entitled to give pre-eminence to his observations over those of Dr Rastogi.

7. The Appeal Panel also observes that the Medical Assessor obtained a history from the appellant of his being able to pay his own bills and do his own budgeting and that indicates a mild impairment only.

8. For these reasons, the Appeal Panel has determined that the MAC issued on 20 October 2022 should be confirmed.