Daley v State of New South Wales (Ambulance Service of NSW)
[2023] NSWPICMP 25
•27 January 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Daley v State of New South Wales (Ambulance Service of NSW) [2023] NSWPICMP 25 |
| APPELLANT: | Desmond Ernest Daley |
| RESPONDENT: | State of New South Wales (Ambulance Service of New South Wales) |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 January 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker alleges error in assessment of psychiatric impairment rating scale (PIRS) categories of self-care and concentration; he also asserts a breach of procedural fairness in that he was not given opportunity to elaborate on his answers at the assessment and seeks to tender a further statement as additional relevant evidence pursuant to S327(3)(b); Pitsonis v Registrar of the Workers Compensation Commission and Lukacevic v Coates Hire Operations Pty Ltd considered; further statement rejected; Held – Appeal Panel unable to find error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 September 2022, Desmond Ernest Daley (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 22 September 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the1998 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 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 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 the PIC Rules.
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
The appellant was a long-term employee of the Ambulance Service of NSW (the respondent). Between 2006 and 4 December 2016, he was employed as a paramedic. From 2015, the appellant experienced distress and anxiety associated with the duties of a paramedic. These included attendance at the scene of motor vehicle, recreational and industrial accidents. By his evidentiary statement he refers to experiencing traumatic events including attending on a suicide by shotgun, the death of a child in a motor vehicle accident, and the death of a young patient who he had transported to hospital.
On 21 March 2018, the appellant consulted his general practitioner, Dr Douch, for treatment of his psychological symptoms. He was referred to Dr Jaspreet Singh, a psychiatrist, and to Ms Calear, a psychologist. Subsequently, he was referred to another psychiatrist, Dr Rodney Blanch.
On 4 December 2018, after a recurrence of symptoms, the appellant ceased work. He undertook a psychological therapy program with Ms Calear. However, his symptoms did not improve sufficiently to enable him to return to work. He was finally medically discharged by the respondent on 23 April 2021.
The appellant states that he continues to experience flashbacks to traumatic events, avoids travelling in areas where traumatic events have occurred, and finds it difficult to relax in crowds. He states that he has become less sociable since the onset of his symptoms.
On 30 April 2021, the appellant saw Dr Martin Allan, psychiatrist, at the request of his solicitors to assess a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Dr Allan expressed the opinion that the appellant suffered from a “chronic post-traumatic stress disorder and major depressive disorder”. He expressed the opinion that this gave rise to 19% whole person impairment (WPI) assessed in accordance with SIRA psychiatric impairment rating scale (PIRS).
Subsequently, on 23 August 2021, the appellant saw Dr John Albert Roberts, a psychiatrist at the request of the respondent’s solicitors. Dr Roberts doubted that the appellant suffered from post-traumatic stress disorder. He also criticised Dr Allan’s assessment of WPI. He thought that a worker who regularly attended golf twice a week with friends should be classified as Class 1 in respect of Social and recreational activities. He thought that a worker who drove a caravan with his wife for two months would attract a classification of Class 1 in respect of Travel.
Dr Roberts expressed the opinion that the appellant was able to concentrate throughout an hour-long examination so that concentration, persistence and pace should be classified as Class 1. Finally, he argued that as the appellant had expressed a desire to return to work, employability should be assessed as Class 2. He, therefore, assessed 2% WPI.
The difference of opinion between Dr Allan and Dr Roberts gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute to a MA, Dr Clayton Smith. It is from his assessment that the appellant brings this appeal.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The case law states that it is inappropriate for a further medical examination to be undertaken by a member of the appeal panel unless prima facie error can be found in the MAC. In this case, the panel was not persuaded that there was either demonstrable error, the application of incorrect criteria, or other relevant error.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence 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 a further written statement dated 7 March 2022 by which he asserts that he “felt rushed” to respond to the MA’s questions during the assessment, was not provided with the opportunity to “elaborate” on his answers, and was asked “closed questions”.
The appellant then sets out further information that he would have provided to the MA in respect of the PIRS categories of Self-care and personal hygiene and Concentration, persistence and pace if he had been given the opportunity at the medical assessment. He also refers to a number of “additional issues” in the assessment by the MA. He states:
“(a) In relation to social activities such as playing golf, I only do this with the encouragement of my wife and health care professionals. If I have a bad game, it makes me feel worthless. Further, I only play with associates that are aware of my diagnosis and they provide encouragement for me to participate.
(b) I only shoot at the pistol range to ensure that I can maintain my licence as this requires a minimum attendance at the range and can only be done between March and October when the range is open.
(c) He says that I entertain at our house at Christmas. This makes it sound like I have many people over. This is not the case. We have our direct family over only. I used to hold many BBQ’s and pool parties at home but this has not occurred for at least 2 years. We ended up getting rid of the pool as we were not entertaining anybody or using it.
(d) Having dinner with my daughter and grandchildren every Tuesday night was only commenced about a month ago at the suggestion of my wife to try and get some social interaction.
(e) My recent trip to Adelaide was by no means a holiday. I was there to support my daughter and grandchildren who had suddenly and unexpectedly lost their father (my son-in-law). We did not eat out. We ordered Uber Eats to bring food to us. I tried to push my own anxiety and problems aside to keep my daughter and the grandchildren occupied. During this trip and due to my struggles, my Mirtazipine was increased to 30mg.”
The appellant submits that his statement is relevant to the grounds raised on this appeal and could not reasonably have been obtained prior to the medical assessment.
As the respondent opposes the reception into evidence of the statement dated
30 August 2022, the panel will address this issue further below.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the appeal panel.
The appellant submits that the MA erred in several respects. First, the appellant submits by reference to the appellant’s statement of 30 August 2022 that the MA failed to accurately record aspects of his history and current complaints so that he certified “an incorrect assessment of WPI”.
In respect of Self-care and personal hygiene, the appellant argues that the assignment of Class 2 was inconsistent with the evidence in his supplementary statement of
30 August 2022 and with the classification of Dr Allan in his report of 30 April 2021. The appellant continues:“Assessor Smith has not provided any reasoning to support the assertion of improvement since April 2021, either in the form of a history taken by him during his assessment, or in the form of medical evidence which was before him.
Having regard to the appellant’s evidence in his supplementary statement, together with the history taken by Dr Allan, it is submitted that the appellant is more appropriately classified in Class 3, under Table 11.1.”
In respect of Concentration, persistence and pace, the appellant again relies on his supplementary statement and the opinion of Dr Allan that he “lacked focus, and was easily distracted and overwhelmed”. He again argued that given these matters he was “more appropriately classified in Class 3, under Table 11.5”.
The appellant alleges that in reaching his classification in respect of Self-care and Concentration, the MA failed to consider and engage with the reports of the doctors who had treated the appellant or seen him for the purposes of his litigation. Further, he alleged that there has been a “failure to provide proper reasons”, in respect of these classifications.
Finally, the appellant submits that he had been denied natural justice in that it was not put to him by the MA that there had been improvement in his condition.
By its submissions, the respondent opposed the admission of the appellant’s statement of
30 August 2022. It referred to the reasoning of the Supreme Court and Court of Appeal in several cases which have considered the admission of fresh evidence. It cited Petrovic v B C Serv No. 14 Pty Ltd,[1] Pitsonis v Registrar of the Workers Compensation Commission[2] and Lukacevic v Coates Hire Operations Pty Ltd[3].[1] [2007] NSWSC 1156 (Petrovic).
[2] [2007] NSWSC 50 (Pitsonis).
[3] [2011] NSWCA 112 (Lukacevic).
Based on these cases, the respondent submitted that the evidence in the appellant’s statement of 30 August 2022 involved a competing assertion as to what transpired during the medical examination and sought to prove the ground that the MAC contained a demonstrable error. It continued:
“The Respondent asserts that the history and information as recorded by the MA should stand. There is no reason to not accept that what the MA recorded was what was told to him by the Appellant. The Respondent notes that the MA is a very experienced assessor.”
In respect of the allegation of demonstrable error in the classifications of Self-care and Concentration the respondent refers to several authorities which discussed the concept of demonstrable error including the decision of Malpas AJ in Mahenthirarasa v State Rail Authority of New South Wales and Ors[4] and the decision of the High Court of Australia on the obligation of a medical panel/assessor to give reasons in Wingfoot Australia Partners Pty Ltd v Kocak[5].
[4] [2007] NSWSC 22 (Mahenthirarasa).
[5] [2013] HCA 43 (Wingfoot).
On the basis of these authorities, the respondent submitted that the evidence did not establish error. The MA recorded an accurate history and the classification of Class 1 in respect of Self-care and Class 2 for Concentration were open to him.
The respondent contended that the appeal resulted from the appellant’s “dissatisfaction with the assessment of Dr Smith”. The appellant’s complaint rose no higher than that other medical practitioners had reached a different opinion in respect of classification in these categories.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[6]. The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in his application.
[6] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan[7], 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.
[7] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[8]. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[8] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd[9].
[9] [2014] NSWSC 1344 (26 September 2014).
After recording a history and examining the appellant, the MA diagnosed post-traumatic stress disorder. He recorded that the symptoms of this condition had:
“persisted for more than 3 months and are not attributable to another cause. His symptoms have improved since leaving work but persist in a mild and clinically significant form”.
In respect of the appellant’s activities of daily living, the MA recorded the following:
“Mr Daley said he is showering daily. He said he wears clean clothes, brushes his teeth every day and is seeing a dentist regularly for check-ups. He said he clippers his own hair. He said he is on a diet and has intentionally lost 13kg.
He said he plays golf on Wednesdays and may stay for a couple of beers at the golf club. He said he has a group of 6 friends that play together every Wednesday. He said rarely he may also play on a Saturday. He said he enjoys painting and dot art which helps distract him from trauma-related thoughts. He said he goes pistol shooting. He said that he has been to the shooting range 8 times this year. He said he will catch up with acquaintances at the shooting range. He said the shooting range is 30km out of town. He said he drives himself.”
The MA recorded the following findings on his physical examination:
“He was alert and oriented and I estimated his intelligence to be in the average range. His cognition was not formally tested. He appeared tired towards the end of the interview. He was able to pay attention during the interview. There was no overt cognitive deficits noted during the interview. His insight and judgment were intact. He claimed to be adherent to treatment as prescribed.”
Additional relevant evidence
The complaints made by the appellant resemble those commonly made by workers who have not obtained an optimal outcome at a medical assessment. The appellant’s criticisms of the procedure adopted at examination as recorded in his statement of 30 August 2022 reflect his subjective impressions of the assessment. It must be borne in mind that the appellant recorded these impressions in his statement some six weeks after the assessment. They are not borne out by a reading of the MAC which includes a careful and comprehensive history in which the MA explored the categories Self-care and Concentration, persistence and pace at some length and set out his findings with commendable clarity.
In Pitsonis [59], the Court of Appeal said this:
“Those dependent on the applicant showing that the doctor failed to record or to record correctly things that she had told him face a double difficulty. They are not demonstrable on the face of the record. And they seek, in effect to cavel at matters of clinical judgement 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.”
In Lukacevic, Hodgson JA, who agreed with Hanley JA stated this at [78]:
“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 that this would be in accord with the policy of the WIM Act.”
By his statement of 30 August 2018, the appellant says that while the MA correctly recorded aspects of his history, he was not given the opportunity to place it in context. The panel notes that the appellant had the opportunity to address each of the PIRS categories in his written evidence prior to the assessment. He could have provided an account of his difficulties in respect of Self-care and Concentration in this evidence. He concedes he did not address the first of these categories in his statement but gives no explanation for this omission.
Much of the appellant’s statement traverses areas that are not challenged in the grounds of appeal. It is doubtful whether any of that material is capable of altering the outcome of the MAC in respect of that PIRS category. In contrast to the other PIRS categories, Concentration, persistence and pace is assessed not only by reference to the worker’s subjective complaints but also by reference to the medical examination of the worker by the MA in the context of the evidence available in the case.
In the opinion of the panel there are multiple reasons why the statement should not be admitted. The criticisms of the procedure adopted by the MA do not prove demonstrable error. The appellant’s “additional” evidence in the statement relevant to Self-care, and Concentration could have been adequately dealt with in a statement prior to the assessment. Much of the statement is not relevant to the assessment of the two PIRS categories relied on in the appeal and is, therefore, not relevant.
Finally, in respect of the additional evidence argument, the panel is not satisfied that the appellant’s assertions in the statement have substantial probative value “in terms of its particularity, plausibility and/or independent support”. Once the appellant’s statement is excluded from the evidence there is no compelling basis to criticise the classifications reached by the MA in respect of Self-care and Concentration.
Self-Care
Table 11.1 of the Guidelines gives the following examples of activities which fall within Class 1:
“No deficit, or minor defect attributable to the normal variation in the general population”.
As indicated above the MA recorded that the appellant showered daily, wore clean clothes, brushed his teeth every day, saw a dentist for regular check-ups, clippered his own hair, and had intentionally lost 13kg on a diet. He also recorded the following:
“He said he does his share of the housework including tidying up. He said he is handy and reliable around the house. He said he normally plans out what he is going to do each day and if things don’t go exactly to plan he becomes anxious.”
While it is true that Dr Allan, and Dr Murphy, a treating psychiatrist, recorded different histories and expressed quite different opinions in respect of this aspect of the case, it must be borne in mind that more than 12 months elapsed between their reports and Dr Clayton’s medical assessment. It is quite clear that the MA read their opinions. He states that on the issue of diagnosis he agrees with Dr Allan and Dr Murphy rather than the opinion of
Dr Roberts who was qualified by the respondent.While minds may differ on the issue of classification, in the opinion of the panel it clear that the MA engaged with the evidence and that was plainly open to him to find Class 1 in the circumstances of the case.
Concentration, Persistence and Pace
The MA noted that Dr Roberts assessed the appellant’s Concentration, persistence and pace Class 1. But he thought that his current overall function “in this domain is more consistent with a Class 2 impairment”. He also addressed the opinion of Dr Allan. He stated that subsequent to his consultation, on 30 April 2021, the appellant’s:
“condition has continued to improve such that he has no difficulties with self-care and personal hygiene. While Dr Allan has assessed concentration, persistence and pace as a moderate impairment, Mr Daley’s recent activities and general function considered as a whole are now more consistent with mild impairment in this domain.”
The quotations from the MAC above encapsulate the MA’s opinion that appellant’s condition had improved over time and, particularly, since the appointments with Dr Allan in 2021. In the opinion of the panel the entirety of the evidence bears out this improvement.
The MA’s classification of Concentration was based on both his physical examination and the appellant’s “recent activities and general function” suggest a mild impairment. The MA recorded several germane objective aspects of Concentration in his assessment, none of which indicates anything more than a mild impairment:
“He was alert and oriented and I estimated his intelligence to be in the average range. His cognition was not formally tested. He appeared tired towards the end of the interview. He was able to pay attention during the interview. There was [sic] no overt cognitive deficits noted during the interview.”
The panel agrees with this assessment. There is no evidence that the MA’s physical examination of the appellant miscarried.
The panel reiterates that there are many aspects of the applicant’s activities which are more consistent with a mild as opposed to a moderate impairment and although reasonable minds may differ, the assignment of Class 2 was open to the MA. The appellant has focused solely on those aspects/activities supporting a Class 3.
Natural Justice
In Queanbeyan Racing Club Ltd v Burton[10] Basten J, in the Court of Appeal discussed what must be conveyed to a worker on a medical assessment to comply with the obligation of procedural fairness. At [41]-[43], in considering the reasoning in Pascoe v Mechita Pty Ltd[11], he said this (footnotes omitted):
“This reasoning is fraught and apt to give rise to error in two respects. First, the concept of “common knowledge” should not be proposed as a guideline to what must be conveyed in the interests of procedural fairness and what need not be conveyed. Secondly, the underlying foundation to this reasoning is, apparently, that the parties are entitled to make submissions to the Appeal Panel in relation to any matters adverse to their interests.
With respect to both issues, the starting point for any understanding of procedural fairness must be the statutory scheme within which it is said to operate. The following statement by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, made in relation to the standard required of reasons given by a medical panel, is equally applicable to the functions of an Appeal Panel under the New South Wales legislation:
“[47] ... The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
A definition of a medical term is inherently something within the medical experience or expertise of the medical members of the Appeal Panel. They do not have to express those terms in language which is within the experience or expertise of the parties. Nor, if they wished to identify a distinction between evoked and spontaneous sensations, did they need to identify the authority which permitted either or both to be taken into account in assessing a particular condition. These were matters to be determined by the Panel in the exercise of their medical expertise. However, if in giving reasons both the distinction and the medical authority were identified, they did not become matters which fell within any obligation of advance disclosure to the parties.”
[10][2021] NSWCA 304 (10 December 2021) (Burton).
[11] [2019] NSWSC 454.
In this case the MA was required to express an opinion on the issue of WPI. Determining whether the appellant’s condition had improved, deteriorated or remained stable was a necessary prerequisite to forming that opinion. Procedural fairness did not require that the MA inform the appellant of his conclusions on the issue. They were matters to be determined by the MA in the exercise of his medical expertise.
In Burton, Basten J also referred to the instruction of the High Court in Wingfoot as to the obligation of an MA to give reasons. The path by which the MA reached his determination in this case is clearly evident from the MAC. There was no failure to provide reasons.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 September 2022 should be confirmed.
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