Duggan v Lake Maintenance Corporate Pty Limited
[2022] NSWPICMP 253
•16 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Duggan v Lake Maintenance Corporate Pty Limited [2022] NSWPICMP 253 |
| APPELLANT: | Roger Duggan |
| RESPONDENT: | Lake Maintenance Corporate Pty Ltd |
APPEAL PANEL | |
MEMBER: | Catherine McDonald |
MEDICAL ASSESSOR: | Prof Nicholas Glozier |
| MEDICAL ASSESSOR: | Dr Michael Hong |
| DATE OF DECISION | 16 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Psychological injury; appeal under section 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998; relying on a statement from worker; Petrovic v BC Serv No 14 Pty Ltd; Lukacevic v Coates Hire Operations Pty Ltd; Psychiatric Impairment Rating Scale (PIRS) categories; Jenkins v Ambulance Service, Ferguson v State of NSW, Parker v Select Civil Pty Ltd; Held– Medical Appeal Panel (MAP) confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 April 2022 Roger Duggan 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 21 March 2022.
Mr Duggan 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,
· 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, being that the MAC contains a demonstrable error. We 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 Duggan was employed by Lake Maintenance Corporate Pty Ltd (Lake Maintenance) as a property inspector. He said that he was required to undertake building compliance inspections which were outside his expertise and outside his contract of employment. He said that the work he was asked to do exposed him and others to hazardous substances and circumstances and that he was required to undertake an excessive workload. He also said that he was exposed to hostile conduct from management.
Mr Duggan suffered a psychological injury which is deemed to have occurred on 26 March 2019 and has not worked since.
The Medical Assessor assessed Mr Duggan about three years after he ceased work. He assessed 8% whole person impairment (WPI).
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 WorkCover Medical Assessment Guidelines 2018.
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 assessment by the Medical Assessor was a valid exercise of his clinical judgement and the MAC does not disclose error.
Fresh evidence
The ground of appeal in s 327(3)(b) of the 1998 Act is the availability of additional relevant information. Section 328(3) provides that fresh evidence or evidence in additional to or in substitution for the evidence received in relation to the medical assessment may not be given on an appeal unless it was not available before the medical assessment and could not reasonably have been obtained before the assessment.
Mr Duggan seeks to admit a statement dated 4 April 2022 prepared after the examination in which he sought to provide further information in respect of some statements in the MAC which he said are incorrect. He said that the Medical Assessor misunderstood or misrecorded his responses. Inevitably that evidence could not have been obtained before the medical assessment. His submissions merely said that it was in the interests of justice to allow him to rely on the statement.
Lake Maintenance said that the statement should not be admitted, noting that the Medical Assessor said he “gave a good account of his history during the interview without apparent cognitive difficulties.” Lake Maintenance referred to the decision of the Court of Appeal in Lukacevic v Coates Hire Operations Pty Limited[1] (Lukacevic).
[1] [2011] NSWCA 112.
We have determined that the statement should not be admitted on the appeal. It is not evidence which falls within s 327(3)(b).
Hoeben J said in Petrovic v BC Serv No 14 Pty Limited[2]:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b).
It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
[2] [2007] NSWSC 1156 at [31].
His Honour noted that if statements going to the way in which the medical assessment was conducted were additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.”
In Lukacevic, Hodgson JA said:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[3]
[3] At [78].
Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[4] His Honour said:
“The Panel's reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.”
[4] At [100].
In Phillips v JW Williamson and RW Williamson t/s Williamson Bros[5] Schmidt J contrasted the factual dispute in Lukacevic about what took place at the examination with the availability of additional probative medical material which did not exist at the time of the examination by the Approved Medical Specialist (AMS), on which the worker sought to rely to demonstrate errors by the AMS.
[5] [2016] NSWSC 1681.
On the basis of those authorities, we decline to admit the statement dated 4 April 2022.
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 and in submissions prepared by his solicitor Mr Lleonart, Mr Duggan submitted that his statement dated 23 July 2021 set out undoubtedly significant difficulties in relation to travel. He said that an assessment in Class 1 on the basis that he can travel to unfamiliar areas fails to take account of the fact that he has no one at home who can drive him. When it is absolutely essential to travel to unfamiliar areas such as for medical appointments he is required to do so. He said he is highly anxious and apprehensive, which is not consistent with normal variation in the general population.
Mr Duggan’s submissions with respect to the assessment for social functioning are substantially based on his statement dated 4 April 2022 which we have not admitted. He said that his statement dated 23 July 2021 shows that he had significant difficulties with respect to relationships.
Mr Duggan said that the Medical Assessor placed him in Class 2 for Concentration, Persistence and Pace “simply” on the basis that he is able to read material on his iPhone, which did not involve any prolonged comprehension. He said that the Medical Assessor acknowledged issues with concentration and forgetfulness in day to day activities.
With respect to employability, Mr Duggan said that assessment in Class 4 on the basis of a work trial for 18 hours per week over three weeks was inappropriate and that it could not be said that he had any capacity for employment when it was accepted that his attendance would be unreliable and erratic.
In reply, Lake Maintenance submitted that the Medical Assessor took a comprehensive history and noted that he was not bound by the examples used in the Psychiatric Impairment Rating Scale (PIRS), citing Jenkins v Ambulance Service of NSW[6]. Lake Maintenance said that the Medical Assessor gave clear reasons for differing from Dr Takyar’s assessment and that a difference of opinion did not amount to a demonstrable error or the use of incorrect criteria, relying on Mahenthrirarasa v State Rail Authority of New South Wales.[7]
[6] [2015]NSWSC 633 at [57]-[65].
[7] [2007] NSWSC 22.
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[8] 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.
[8] [2006] NSWCA 284.
Principles of assessment
The Medical Assessor was required to assess Mr Duggan as he presented on the day of the examination[9] and to use his clinical judgement in determining a diagnosis and making an assessment. He was required to assess him using the PIRS.
[9] Guidelines paragraph 1.6.
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[10] 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.”
[10] [2015] NSWSC 633 at [65].
In Ferguson v State of New South Wales[11] (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’…”[12]
[11] [2017] NSWSC 887.
[12] At [24].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd[13] (Parker) and said[14]:
“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
[13] [2018] NSWSC 140.
[14] At [70]-[71].
The Medical Assessor produced a detailed MAC. He set out the treatment Mr Duggan has undergone, noting that he had been hospitalised on several occasions between March 2020 and July 2020.
The Medical Assessor set out Mr Duggan’s present symptoms, noting that his mood varies day by day. He described his general health and said:
“He had started using marijuana and methamphetamine after his father died nine years ago. He stopped completely but recommenced after leaving work. He has again stopped. He last used methamphetamine in 2020 and marijuana late in 2021.”
The Medical Assessor set out Mr Duggan’s social activities and activities of daily living in detail, including:
“He is anxious in heavy traffic but generally feels okay. He drives himself locally to doctor’s appointments, the Centrelink office, and shops. Sometimes he goes to Kiama, a distance of 15 to 20 km, for lunch. He recently drove to Cabramatta for shopping, a trip that took about an hour.
Although his de facto partner left him, he has been able to form a new relationship and sustained it for over a year. He sees his stepson and sometimes his step-granddaughter every couple of months.
He is estranged from his stepdaughter, but this predates his workplace injury and relates to problems with her upbringing.
Except for his girlfriend and her friends, he does not see friends (although recently he has at the bowls club). He has lost many friends from the breakup of his de facto relationship and his social disengagement.
He has subjective problems with concentration and memory. He leaves the television on ‘for noise’ but doesn’t watch it; he spends much of his day interacting with his iPhone. He expressed an interest in the Ukraine situation and said he could read for about an hour with comprehension.
He has no hobbies or projects. Encouraged by his doctor, he started renovating his caravan but ran out of money, and so he sold it.
In 2021 he had a three-week work trial at a motel in Nowra, working three six-hour days. He had hoped to be trained in office administration, but they only had him doing maintenance work. Disappointed by this, his work trial ended. He has applied for other jobs since without success.”
The Medical Assessor diagnosed persistent depressive disorder with anxious distress and a current major depressive episode. He assessed 7% WPI and added 1% for the effect of treatment. The Medical Assessor summarised the report of Dr Takyar, who assessed 24% WPI and reported to Mr Duggan’s solicitors on 26 February 2021 and Dr Bisht, who assessed 6% WPI and reported for Lake Maintenance on 24 May 2021. He said:
“The assessments of Drs Takyar and Bisht were only three months apart. Mr Duggan’s condition did not change dramatically in that time, and the different assessed levels of impairment reflect differences of opinion.”
Those assessments were also roughly a year before the examination by the Medical Assessor.
It is important to remember that assessment on the day of the Medical Assessor’s examination is likely to produce a different assessment to what may have been appropriate at Mr Duggan’s worst level of functioning in the past. We acknowledge that Mr Duggan had five hospitalisations in five months and that an assessment in 2020 would have resulted in a higher level of impairment, particularly as his long term relationship had recently broken down. He has undergone treatment and shown resilience in overcoming drug use and making a considerable recovery since that time.
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. Similarly to the submissions Harrison AsJ declined to accept in Parker, Mr Duggan’s submissions substantially say that assessment in another class was “more appropriate” in each of four categories.
Travel
The Medical Assessor assessed Mr Duggan in Class 1 for travel. Class 1 applies where there is no deficit or a minor deficit attributable to the normal variation in the normal population. He gave the following reasons:
“He travels locally and further afield when necessary, including to unfamiliar places. He said that he was comfortable driving except in heavy traffic. This is within the normal variation of the general population.”
Dr Takyar assessed Mr Duggan in class 2 and Dr Bisht assessed him in Class 1.
Though Mr Duggan said in his statement dated 23 July 2021 that he drove when he had to and that he had no one to drive him anywhere, that is not consistent with the history that he gave the Medical Assessor that he can drive from Lake Illawarra to Kiama for lunch or to Cabramatta. The presence of symptoms whilst travelling is not the same as impairment.
Based on the history that the Medical Assessor obtained in March 2022, there was no error in his assessment in Class 1. An apprehension about driving in unfamiliar surroundings could be said to be consistent with the normal variation in the general population.
Social functioning
The social functioning scale measures impairment in the area of relationships. The Medical Assessor assessed Mr Duggan in Class 2 and said:
“Mr Duggan’s de facto partner left him when he was severely unwell in hospital in 2020. There had been no violence in their relationship. However, he has formed a new intimate relationship which he has maintained for more than 12 months. He remains connected with family members, except for his stepdaughter, from whom he has an estrangement predating his workplace.”
In 2020 a higher assessment in Class 3 or Class 4 would probably have been appropriate. Even the history described in Mr Duggan’s statement dated 23 July 2021 was quite different to that provided to the Medical Assessor in March 2022. However Mr Duggan did say in 2021 that he had attempted to enter into new relationships, suggesting a gradually improving level of functioning.
By the time he saw the Medical Assessor, Mr Duggan had formed a new relationship, and he also sees his partner’s friends. He told the Medical Assessor that he has returned to the Bowls Club and will chat to people he knows when he is there. On that basis, assessment in Class 2 was a valid exercise of the Medical Assessor’s clinical judgement based on the history Mr Duggan gave.
Concentration, Persistence and Pace
The Medical Assessor assessed Mr Duggan in Class 2, saying:
“Mr Duggan spends much of his day interacting with his iPhone. He follows current events, reading for up to an hour at a time with comprehension. He has subjective difficulties with concentration and memory, noting that he often forgets to take things with him when he goes out, and he sometimes leaves the stove on. During my assessment, he gave a detailed account of his history without apparent cognitive difficulties.”
Concentration, persistence and pace is the one scale on which a Medical Assessor can make his or her own objective assessment. While the other scales are substantially dependent on this history provided, the Medical Assessor can assess the ability of a worker to concentrate and respond to questions during the examination. The example in the PIRS for assessment of a mild impairment in Class 2 is the ability to concentrate for 30 minutes. A comprehensive psychiatric assessment will take longer than 30 minutes and an assessor will be able to observe if a worker is unable to focus and respond appropriately over that time, demonstrating the level of impairment in concentration, and the ability to persist with the pace of the assessment process. Mr Duggan was able to provide a history and the Medical Assessor did not observe cognitive impairment during the videoconference. He took Mr Duggan’s subjective difficulties in concentration into account in assessing him in Class 2 and that assessment was open to him.
Employability
Mr Duggan argued that the Medical Assessor should have assessed him as totally impaired in Class 5 rather than severely impaired in Class 4 for employability. The Medical Assessor said:
“Mr Duggan is currently unemployed. In 2021 he had a work trial of 18 hours a week for three weeks. This was unsuccessful, but Mr Duggan says that this was because he was given duties different from those he expected or wanted and didn’t continue it. He has been looking for work without success. It is untested whether he would succeed in a workplace and, given the variability and severity of his symptoms, likely he would be unreliable and erratic in his attendance.”
The Medical Assessor relied on the history that Mr Duggan gave him to make that assessment. Importantly, Mr Duggan said that when he undertook a work trial, he was given different duties to those he expected. He had hoped to be trained in office administration but was given caretaker duties. He did not say that he was unable to perform the work he was given.
Consistently with the examples in the PIRS, the Medical Assessor took the likelihood that Mr Duggan’s attendance at work would be erratic in assessing him in Class 4.
Mr Duggan underwent a vocational assessment in May 2020 and a work trial in December 2020. A further vocational assessment was conducted in July 2021. The assessor wrote:
“Mr Duggan advised he did not complete the work trial that Kairros P/L sourced, with Cross Culture Asia in December 2020. He reported the work trial host employer had not delivered their promise of training him with computer system, rather, made him carry out manual work that he was already competent in. He further elaborated he was more highly skilled, and ought to be supervising workers instead of performing the role of the maintenance worker.”
As part of the 2021 assessment, Mr Duggan’s general practitioner, Dr Ria, was asked to comment on the vocational options identified. Dr Ria said on 26 July 2021 that Mr Duggan would be fit to commence work for 15 hours per week, building to six to eight hours on three days per week as a caretaker, building and engineering technician or real estate agent/property manager. That is a more optimistic assessment than that made by the Medical Assessor.
Dr Takyar assessed Mr Duggan in Class 5 on the basis that he did not have current capacity for work for which he had “skill, training and experience.” That assessment is inconsistent with the examples in the PIRS. Only Classes 1 and 2 measure employability by reference to pre-injury education and training. Assessment in Class 3 connotes an inability to do even a less demanding job, and in the case of Class 4, any job. Those examples are consistent with the philosophy of the workers compensation legislation as a whole to seek to return injured workers to suitable employment[15], not necessarily pre-injury employment.
[15] As defined in s 32A of the Workers Compensation Act 1987.
The assessment of severe impairment on the scale of employability made by the Medical Assessor was open to him in the exercise of his clinical judgement.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 March 2022 should be confirmed.
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