Creighton v Brunswick Valley Meals on Wheels Inc
[2023] NSWPICMP 660
•7 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Creighton v Brunswick Valley Meals on Wheels Inc [2023] NSWPICMP 660 |
| APPELLANT: | Dianne Creighton |
| RESPONDENT: | Brunswick Valley Meals on Wheels Inc |
| APPEAL PANEL | |
| SENIOR MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 7 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal alleging incorrect Psychiatric Impairment Rating Scale (PIRS) classification; application to adduce fresh evidence from the appellants family member relating to PIRS classification declined, relying 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 and Petrovic v. BC Serv No. 14 Pty Limited t/as Broadlex Cleaning Services; Panel declined to find that the statement could not have been reasonably obtained before the Medical Assessment; the Appeal Panel could find no error on the face of the Medical Assessment Certificate (MAC); application of Ferguson v State of New South Wales and Parker v Select Civil Pty Ltd; no error was found in the application of the categories and classes of PIRS; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 August 2023 Dianne Creighton (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 July 2023.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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 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 (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
The appellant was employed by Brunswick Valley Meals on Wheels Inc (the respondent) in a service coordination role. Her duties include coordinating meal programs and also delivering meals to both clients and other employees who looked after alternative service sites.
Whilst in the course of her duties, the appellant attended a shopping centre, she was threatened and robbed by a young man. Following that assault, the appellant suffered a psychological injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel determined there was sufficient evidence on which to make a determination. There had been a clearly reported thorough examination of the applicant.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of Sheridan Creighton dated 14 August 2023.
The appellant submits that the evidence is relevant to the assessment of the various PIRS categories, particularly in light of what the appellant submits has not been sufficiently addressed by the MA.
The respondent opposes the admission of such evidence.
Section 327(3)(b) of the 1998 Act provides a ground of Appeal to be:
“(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),”
It is clear on the basis of the legislation that evidence ought not be admitted if it could have been reasonably obtained before the medical assessment.
There are no reasons provided as to why the appellant could not have obtained a statement from Sheridan Creighton prior to the claim being made. Prima Facie, it ought not be admitted.
The Appeal Panel observes that various authorities militate against the admission of fresh evidence in circumstances such as this, such as Petrovic v BC Serv No. 14 Pty Limited t/as Broadlex Cleaning Services[1] where Hoeben J found it was critical to consider that the content of any statement attached to an application for appeal as containing evidence relevant to the grounds of appeal alleged. His Honour stated that in circumstances where all appellants were to be allowed to provide statement evidence in support of an appeal without consideration for its contents, “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.”
[1] [2007] NSWSC 156 (Petrovic).
The Appeal Panel does not accept any assertion that the statement is required to clarify the impacts of the injury on the applicant in circumstances where they have not been sufficiently addressed by the MA. To the contrary, the Appeal Panel has examined the MAC and has formed the view that the MAC is well reasoned and the PIRS categories have been well addressed by the MA.
The Appeal Panel determines that the evidence should not be received on the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant complains that the Medical Assessor did not sufficiently address the criteria for the assessment of self-care and personal hygiene, in particular whether the appellant requires prompting in this regard.
The appellant refers to the report of Dr Chow dated 26 September 2022 which provided the observation that the appellant skipped showers every couple of days and stays in pyjamas most days. She needs to be prompted by her daughter with regard to self-care.
The appellant also observes that the MA confirmed that most of the household meals were prepared by the daughter and says that the appellant should be placed in Class 3 for self-care and personal hygiene.
In respect of social and recreational activities, the appellant submits that her condition is more consistent with Class 3 as opposed to Class 2. The appellant refers to Table 11.8 and observes that the appellant is able to go to situations such as local supermarkets and post office unaccompanied. However, at the same time it was observed that the appellant spends most of her time at home.
In respect of social functioning, the appellant relies upon observations by the appellant’s daughter, observations that are unable to be considered by this Appeal Panel for reasons already given.
They also refer to the opinion of Dr Chow in his report dated 5 January 2022 which stated that “Mrs Creighton is not seeing her friends but receives phone calls from her friends. She used to meet up with her friends regularly.” It was submitted that the appellant should be classed in Class 2 for social functioning.
The appellant also submits that there should have been an assessment of Class 3 for concentration, persistence and pace as opposed to Class 2.
The respondent submitted that the MA has not fallen into error and the MAC should be confirmed. They say that the assessment was undertaken by a qualified consultant psychiatrist who relied on his clinical observations made at the time of medical assessment in conjunction with the history provided to the MA by the worker. The MA had quite correctly relied on, within the terms of Pitsonis v Registrar of Workers Compensation Commission & Anor[2] “his clinical judgement at the time of the medical assessment”.
[2] [2008] NSWCA 88.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out below.
· on 1 July 2021 Ms Creighton was robbed of her handbag while parked in the vehicle of the organisation she was working for in a shopping area. Immediately after the robbery she recalls feeling angry and blamed herself for “letting my guard down”. She developed a number of typical post-traumatic symptoms including a sleep disturbance, hypervigilance for further assault and irritability including with close family members. She believes that the robbery “unhinged my strong Aboriginal spirit” and the theft of important personal possessions such as photographs in her handbag left her feeling “like an alien” [Page 2].
· Ms Creighton continues to be hypervigilant when a situation similar to those in which the assault occurred. She usually goes to a local supermarket at quiet times and will park as close as she can to the entrance. [Page 2]
· Ms Creighton recognises that she uses activities such as cleaning her house as a way of managing unpleasant feelings and she can do this excessively at times. [Page 2]
· She has noticed that her memory and concentration is not so good, and she has strategies such as collecting items together close to the door before leaving home, so she does not forget them. [Page 2]
· Ms Creighton lives with her daughter and 12-year-old grandson. She describes getting on well with them. She has close relationships with her family of origin and will usually visit and spend time with them 3 times per year in Moree. Most days Ms Creighton gets up around 6am. She lets her dog out before feeding it, and making herself some breakfast which she enjoys. [Page 3]
· She will drive her grandson to the bus stop so that he can get to school. She will shower either before taking her grandson to the bus stop or after. She gets dressed and then may spend time planning her day or the week ahead and writing on her calendar. She may go to the shops which are approximately 4 kilometres from home to get some groceries. Most of the time she spends at home which she describes as her “comfort zone”. She spends time during the day doing household chores and cleaning. She maintains some online connections with family and friends. Ms Creighton’s daughter does most of the cooking for the household. She goes with her daughter to Ballina occasionally and goes to church each Sunday for Mass. [Page 3]
· She will meet with friends every two months or so for coffee but otherwise is not socially active. Ms Creighton gave a detailed history and spoke spontaneously and fluently. Her affect showed appropriate reactivity depending on the material under discussion. Her mood was objectively and subjectively euthymic today with good future focus. [Page 3]
· Ms Creighton was fully alert and oriented at interview. On more than one occasion she had brief frustration as her concentration lapsed or she forgot some information which she felt she should recall. Dr Chow assessed Ms Creighton as having significantly more impairment in most areas than my assessment. The details provided by Ms Creighton to me at interview indicate a high level of self-care, sustaining some important social connections, independent travel in her local area and an ability to concentrate on tasks such as reading and writing. The difference between the assessment of Dr Chow and myself may be due to partial recovery of some functions in the intervening 10 months. [Page 5]
· In her report Miss Gilding describes a good self-care routine being followed, good connections with family and community, including in Moree, and activities such as exercise at home, gardening and reading. The description of Ms Creighton’s functions is at some variance with that of Dr Chow. [Page 5]
Self-care and personal hygiene – Class 2
· Ms Creighton describes impairment in her self-care in the weeks following the incident in July 2021 though believes this has significantly improved since that time. She will shower every day either before or after she drives her grandson to the bus stop. She describes attending to her appearance if going into a public situation such as shopping with her daughter. She prepares breakfast for herself every day, has snacks during the day and then has a meal with her daughter and grandson in the evening which is usually prepared by her daughter. During the day she will spend time doing household chores including ironing and cleaning. There is mild impairment in self-car – Class 2.
Social and recreational activities – Class 2
· Ms Creighton meets with her friends for a coffee every few weeks if they are in the local area. She maintains an interest in genealogy though meets with others to pursue this interest infrequently. She sustains online relationships in areas of her interest. She spends most of her time at home. She is able to go to situations such as local supermarkets and post office unaccompanied – Class 2.
Social functioning- Class 1
· Ms Creighton describes mutually supporting close relationships with a number of members of her family, as well as some friends. She has long-established close relationships with her community of origin in Moree and visits several times each year. She lives with her daughter and grandson. She describes some excessive irritability in the weeks after the incident in July 2021, though said this has resolved and her relationship with her daughter in particular is now good.
Concentration, persistence and pace- Class 2
· Ms Creighton describes experiencing “brain fog” and feeling that there is no longer “alignment within my brain”. She worries about her concentration when driving and so takes extra care. Ms Creighton said that she was able to read books for up to 45 minutes and is currently reading a biography of Stan Grant. She is keeping a journal at the request of her psychotherapist and will usually write in this and read material from it twice per week for up to an hour (Page 9)
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.
In Mahenthirarasa v State Rail Authority of New South Wales & Ors[2007] NSWSC 22 Malpass AJ commented that “a demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.” Further, the Supreme Court noted in Glenn William Parker v Select Civil Pty Limited[2018] NSWSC 140 that in Ferguson v State of New South Wales[2017] NSWSC 887 at [23] (Ferguson), Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (Wark), where it is stated at [33]
“...the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. ...”
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In Ferguson v State of New South Wales[2017] NSWSC 857 (Ferguson), where Campbell J was considering whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the AMS unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd[2018] NSWSC 140 (Parker) Harrison J at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense...”
The appellant complains that the MA has not specifically referred to the Guidelines or to the differences in classes which are relevantly contained in Tables 11.1, 11.3, 11.4, 11.5 and 11.6. The Appeal Panel rejects this as being necessary. It is obvious from the report that he is aware of the differing classes and has applied his expertise knowledge and skill to discern which class was the appropriate classification following his examination.
Likewise, the Appeal Panel does not accept that it is necessary for the MA to set out the relevant PIRs categories. The MA has clearly considered the evidence before him and applied his expertise knowledge and skill in assessing the appropriate classification.
A further complaint is that the MA has not taken into account cultural background and has failed to consider activities that are usual for the appellant’s age, sex or cultural norms. Whilst no explanation is given as to the basis for this account, the Appeal Panel can find no fault as the MA has clearly understood the appellant’s age and cultural background and has formulated his opinion with that knowledge. The Appeal Panel observes that there is no direct criticism or reference to any part of the assessment that has been identified by the appellant to ground this complaint.
To find an error in the statutory sense, the Appeal Panel’s task is to determine whether the MA had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. The Appeal Panel have been unable to find any errors for reasons that are outlined below.
In respect of self-care and hygiene, the MA has clearly explained the reasoning process that led to the classification of Class 2. Not only is the history taken by the MA consistent with a Class 2 classification which includes showering every day and attending to her appearance if going out in public, it is also consistent with a report of the appellant's treating psychotherapist, Paula Gilding, dated 8 August 2022. The MA noted that:
"In her report Ms Gilding describes a good self-care routine being followed, good connections with family and community, including in Moree, and activities such as exercise at home, gardening and reading. The description of Ms Creighton's function is as some variance with that of Dr Chow."
To be clear the MA has considered the history given by Dr Chow and have based his assessment on the history given at the time of the consultation. The Panel can discern no error.
In respect of social and recreation functioning, once again the Appeal Panel cannot find any error. There is evidence of social and recreational activity, including meeting with friends every two months or so for coffee or every few weeks if they are in the local area, and also an interest in genealogy, though infrequent. She engages socially with friends through online activities, which is an enjoyable activity for her. The MA was also aware that the appellant avoids some situations due to psychological discomfort.
Reading the MAC as a whole, other observations made by the MA are also consistent with a Class 2 finding such as whilst it is acknowledged that she meets friends every two months or so for coffee, she is not otherwise socially active.
The Appeal Panel can find no error in the classification of 2 in respect of social and recreational activities.
In respect of social functioning, once again the MA has articulated his reasoning as to the assessment of Class 1. This includes having a good relationship with her daughter and
12-year-old-son, whom she resides with and also having relationships with her family of origin (although she only visits them three times a year). These observations are consistent with a class 1 assessment.The appellant concedes, in the alternative, that if there is more than one conclusion open, i.e., the appellant could be Class 1 or Class 2, then it is incumbent upon the MA to provide adequate reasons as to why one class prevails over the other.
The Appeal Panel considers that the MA has clearly articulated in what basis he finds the appellant’s classification as to Class 1. He is not required to provide “extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professions judgment”.[3]
[3] Stojceski v Atco Controls (deregistered) [2022] NSWPICMP 214
The Appeal Panel observes that there is no evidence that the MA held the opinion that more than one class was open in any event.
With respect to concentration, persistence and pace, once again the Appeal Panel can find no error. The ability to read books for up to 45 minutes is consistent with the finding. Further the history in respect of journal activity where the appellant is writing and reading twice a week for up to an hour is consistent with a Classification of 2. Further the MA also had the benefit of observing the appellant in his examination and was in a position to assess her at that time.
After considering all the submissions made by the appellant, the Appeal Panel confirms the MAC. None of the alleged errors in the appealed categories have in a Ferguson sense been made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 July 2023 should be confirmed.
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