Evans v Secretary, Department of Education

[2021] NSWPICMP 120

DETERMINATION OF APPEAL PANEL
CITATION:	Evans v Secretary, Department of Education [2021] NSWPICMP 120
APPELLANT:	Deborah Evans
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL:	Member Marshal Douglas Dr Patrick Morris Dr Douglas Andrews
DATE OF DECISION:	12 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Assessment related to permanent impairment of appellant worker from psychological injury; Appellant submitted Medical Assessor applied incorrect criteria with respect to assessment of her impairment in the categories of social functioning and concentration, persistence and pace and that the MAC contained demonstrable error by virtue of the assessment of her impairment in these categories; Appellant submitted that Medical Assessor’s findings were inadequate and inconsistent with the evidence; Held- Appeal Panel held that Medical Assessor had regard to all the evidence but based on his clinical judgement gave pre-eminence to the findings he made on examination and the history he obtained, which he was entitled to do; Appeal Panel also held that it was open to the Medical Assessor to make the assessment he did with respect to the appellant’s impairment in the categories of social functioning and concentration, persistence and pace, and his assessments were supported by the reasons he provided; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 4 May 2021 Deborah Evans (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 April 2021.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the assessment was made on the basis of incorrect criteria,

   ·        the MAC contains a demonstrable error.

3. 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 ground(s) of appeal on which the appeal is made.

4. The WorkCover Medical Assessment Guidelines 2006 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 2006.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. The appellant suffered a psychological injury on 30 August 2018 due to events that occurred in her employment with the New South Wales Government as a principal of the Bondi Beach Public School.  The secretary of the Department of Education (the respondent) is, in accordance with s 26 of the Government Sector and Employment Act 2013, the appellant’s employer. 

2. Consultant forensic psychiatrist Dr Thomas Oldtree Clark examined the appellant on 4 March 2020 and reported to her solicitors in a report he issued on that day that he had diagnosed the appellant’s injury as a Major Depressive Disorder and that he had assessed she had 17% whole person impairment (WPI) from her injury.

3. On 2 June 2020 the appellant’s solicitors notified the respondent’s insurer that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 17% WPI resulting from her injury.  The respondent’s insurer thereupon organised for the appellant to be examined by psychiatrist Dr Mukesh Kumar, who examined the appellant on 23 July 2020.  Dr Kumar considered that there was further treatment that the appellant could have that would be beneficial to her and, because of that, Dr Kumar formed the view that the appellant had not achieved maximum medical improvement.  He advised the respondent’s insurer that he was “unable to comment on the whole person impairment”. 

4. On 21 August 2020 the respondent’s insurer wrote to the appellant advising her that it believed she was not eligible for the compensation she had claimed “because your accepted primary psychological injury has not resulted in at least 15% permanent impairment as required by s65A(3) of the Workers Compensation Act 1987”.

5. Thereupon the appellant’s solicitors lodged with the Commission an Application to Resolve a Dispute seeking determination of the appellant’s claim for compensation.  The matter was referred to the Medical Assessor, who examined the appellant on 29 March 2021 and, as mentioned, issued the MAC on 13 April 2021.  In that, the Medical Assessor certified that he had assessed the appellant to have 7% WPI from her injury.

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.

2. 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, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error.  The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792

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. 

MEDICAL ASSESSMENT CERTIFICATE

1. The Medical Assessor set out the following history in the MAC relating to the appellant’s ability with social activities and activities of daily living:

   “Ms Evans lives on her own. She has three adult children.

   Ms Evans only buys easy to prepare food, such as smoked salmon, baked beans and
   quiche from the supermarket that she would heat up. She does not cook at all. Sometimes Ms Evans will snack on biscuits all day.

   Ms Evans visits her children and sometimes they visit her. She started taking walks but she cannot do this for long, as she needs an operation for a bunion on her toe.
   Ms Evans reads books at home and stated that she has trouble reading for long, on further enquiry she could not tell me how long she would read. She said that she was given a 300 pages book at Christmas 2020, and that she has not finished it yet. She was previously an avid reader. She watches YouTube videos to learn photography. She purchased a camera but she does not do this regularly. She does not belong to any clubs such as a photography club.

   Ms Evans’ mother lives in Port Macquarie and she has driven there to visit her mother a couple of times. This is a four-hour trip. Ms Evans has a brother who lives in Port Macquarie and her children live not far from her.

   Ms Evans drives to visit her daughter who lives about 25 minutes away. She does not
   exercise because of knee problems, but occasionally will do some yoga. She previously joined the aquatic centre and undertook aquatic aerobics, but does not do that anymore.

   In the past Ms Evans had a very large circle of friends, most of them were teachers. She said that once the problems at work started, she stopped hearing from her friends and she only has contact with one friend now, who is also a teacher.

   Ms Evans said her support person during the problem with the school then applied for her job and is now the Principal of Bondi Beach primary school, and she felt betrayed.

   In terms of overseas trips, in 2019 Ms Evans went to Bali. She planned to go for six weeks but only stayed for three and a half weeks and said that she felt homesick. In September 2018, Ms Evans went to Vietnam with her best friend. She recalled it was a very difficult experience because she ran in to the Kensington School Principal and then another friend at the airport, they had asked her about what has been happening and she did not enjoy the contact.

   Ms Evans lives in a two-bedroom apartment, she attends to the chores and said there is not much housework or vacuuming to be done.

   Ms Evans said that she is anxious when she goes out and she often checks that there is no one in the elevator before she will go out. She generally only tolerates being out for one or two hours on her own.

   I asked Ms Evans whether she had any hobbies or interests normally. She reported that she played basketball until she was 50 when she developed a knee problem, and she was a workaholic and always worked on the weekend as a Principal, and she had no specific hobbies.”

2. The symptoms the appellant reported at the time of examination were recorded by the Medical Assessor in the MAC to be:

   “•       She described generally heightened emotions and reacting with anger, anxiety and depressed mood.

   •         Reduced enjoyment and motivation.

   •         Reduced concentration and short-term memory

   •         Suicidal ideation has ceased.

   •         Appetite and weight problem since the subject injury, she gained around 3 kg in the past 6 months.

   •         Problem with sleep and generally only “"a couple of hours” a night.

   •         Panic attack-like symptoms. At times tingling and dizziness.

   •         Rumination.

   •         Having a low tolerance for frustration.

   •         She avoids social situations due to her anxieties.”

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

   “Ms Evans was assessed in person and according to the current COVID precautions. She was bespectacled and had long, light colour hair. She was neatly attired. She engaged well with the assessment process. There was no psychomotor slowing, agitation, stereotypy or abnormal movements. She spoke at length and gave a lengthy and detailed history. She was moderately restricted in her affect range and reactivity and remained composed during the assessment. She spoke spontaneously, without latency and at a normal pace. She was not thought disordered and the provided history was easy to follow.

   After assessing Ms Evans for more than 40 minutes, I asked her whether there were other comments she wished to make. She had prepared a few pages of typed statement and she read from her statement for more than 10 minutes until she finished the document. She said it took about five days to prepare that statement. Ms Evans discussed having nightmares every night and various psychological symptoms and anxiety attacks. She recognised the things that had been covered during the assessment and only discussed the issues in her statement that was not covered during my assessment. She spoke about feeling dizzy when she was at a camera
   shop. She said she has a poor memory and needs the text message from her doctor’s practice to ensure she goes to her appointments on time. She said she gets frustrated whenever her best friend starts talking about school-related matters. Ms Evans said that in terms of employability, if she were to apply for a job now, the prospective employer would google her and it is inescapable there would be articles of allegations against her and she would not succeed in her job search. She said that she procrastinates. In 2020 she purchased a fitness tracker to track the number of steps she took. She went out daily for a week and then stopped going out regularly as she did not have motivation. She said her self-worth had plummeted. Ms Evans said
   she has had five case managers over time and that she was not paid last week, that she has no faith in the system anymore even though she was part of the system previously. Ms Evans said she received no genuine support from the Department. She said that she has never received a complaint in her 38-year career.

   I noted that she remained focused and there was no overt impairment in her concentration, persistence or pace during the 55 minutes assessment.”

4. The appellant’s challenge to the Medical Assessor’s assessment of her permanent impairment relates to the Medical Assessor’s rating of her function in the categories of social functioning and concentration, persistence and pace.  The Medical Assessor noted his assessment of the appellant’s impairment in these areas differed from the assessment
   Dr Oldtree Clark had made.  The Medical Assessor made the following comments about that:

   “In terms of social functioning (relationship), Dr Oldtree Clark rated Class 4 and stated
   Ms Evans had no relationship and no prospect of such. In my assessment I noted that
   after her divorce she has not had a partner. Ms Evans maintains a close relationship
   with her family and children. A lot of friends stopped contacting her. She maintains
   contact with one close friend but felt betrayed by another friend who is now in her
   previous position. She has not perpetrated domestic violence. In my opinion, her
   impairment is consistent with a rating of Class 2 according to the Guides.

   In terms of concentration, persistence and pace, Dr Oldtree Clark rated Class 3 on the
   basis that this is affected by feelings of despair and hopelessness - I note this
   description can be consistent with a rating of 1 to 5 according to the guides. In my
   assessment, I noted that Ms Evans reads books but that she finds it hard to focus. It
   took her five days to prepare a few pages of typed statement. In my 55 minutes
   assessment, she was able to maintain focus for the entire period. She read from her
   statement, recalled information that was covered during the assessment, and
   elaborated on the items not covered in the assessment from her statement. Based on

   her mental state examination and history, I have rated 2.”

5. Within Table 11.8 that was appended to the MAC, the Medical Assessor detailed the following reasons for why he rated the appellant’s impairment in social functioning and concentration persistence and pace as class 2:

Social functioning	2	She is socially anxious and avoidant, and reported having ceased contact with most of her friends. She is able to sustain a long-term friendship. Her relationship with her family is good and they are close.
Concentration, persistence and pace	2	Ms Evans reported having reduced concentration. Her mental state examination is consistent with 2. She read books but has difficulties finishing a book she started in December 2020. It takes a few days to type up a long document.

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 Medical Assessor’s findings with respect to the impact from her injury on her social functioning were inadequate and did not accord with what she had said in a statement she signed on 22 September 2020.  In that statement, she said that her social contacts and activities had revolved around her teaching life and that subsequent to her injury she had withdrawn as much as possible from social contact and that she avoided going out in public for fear of being recognised.  The appellant submitted that the Medical Assessor’s findings did not take into account that she did not want to have to repeat to friends and relatives the experience that gave rise to her injury and this was a reason she had withdrawn from social contact. 

3. The appellant submitted that the Medical Assessor’s assessment of her impairment in social functioning did not accord with her having to resign from her employment after 28 years due to medical advice and due to the trust, confidence and support she received from the education system being undermined. 

4. The appellant submitted that her impairment in the area of social functioning ought to have been classified as 3, if not 4. 

5. The appellant further submitted with respect to the Medical Assessor’s assessment of her impairment in concentration persistence and pace that the Medical Assessor’s findings were inadequate and failed to take into account the impact of the injury on her concentration persistence and pace.  The appellant submitted that the Medical Assessor’s assessment was at odds with her history she reported and at odds with the opinions of other treating specialists, especially Associate Professor Roxanas who had noted that the appellant had described driving away from a petrol station without paying for the petrol. 

6. The appellant highlighted that Dr Kumar had noted she had reported poor concentration and did not read much and often returned books to a library unread.  The appellant further highlighted that Dr Oldtree Clark had noted that she had concentration problems and that she lost track of time and location and appointments. 

7. The appellant submits that the Medical Assessor erred or failed to apply correct criteria by not assessing her impairment as being Class 3.

8. In reply, the respondent submitted that the Medical Assessor’s assessment of the appellant’s impairment in the area of social functioning was consistent with the history he recorded at the time he assessed the appellant and was based upon his objective findings on examination.  The respondent submitted that the Medical Assessor correctly applied [1.6] of the Guidelines in that he conducted his clinical assessment of the appellant on the basis of how the appellant presented on the day of the assessment.

9. The respondent submitted that it was open to the Medical Assessor to make the assessment he did of the appellant’s impairment in concentration persistence and pace, which was based upon his conclusions from his examination of the appellant.  The respondent submitted that the Medical Assessor was not obliged to accept or follow the assessment of
   Dr Oldtree Clark, especially considering his assessment of the appellant took place more than 12 months prior than the Medical Assessor’s assessment.

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.

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

3. The Guidelines at [1.6] instruct that an assessment of “permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information”.

4. Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) cited at [23], with approval, the following passage at [33] from the decision of the Appeal Panel in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36:

   “…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. …”

5. The Appeal Panel considers that it is apparent from the MAC that the Medical Assessor had regard to all of the material before him when assessing the appellant’s impairment.  That material comprised the brief of documents the Commission forwarded to him, which included the appellant’s statement, and the history he obtained at examination and his findings from examination.  The Appeal Panel also considers the Medical Assessor took into account all relevant matters within that material when evaluating the appellant’s impairment in the several categories of behaviour that under [11.11] of the Guidelines are required to be assessed, including the appellant’s ability in social functioning and in concentration, persistence and pace. 

1. It seems to the Appeal Panel that the Medical Assessor, whilst considering all the material before him, gave pre-eminence to his clinical observations of the appellant and the history he obtained at the time of his examination.  He exercised his clinical judgment in doing so, which, consistent with what was held in Ferguson, the Medical Assessor was entitled to do.  There is accordingly no error in the MAC by virtue of the Medical Assessor having done so.

2. With respect specifically to social functioning, the Medical Assessor was aware that the appellant avoided social situations due to anxiety.  The Medical Assessor took into account when assessing the appellant’s impairment in social functioning that the appellant was avoidant of social situations and that she had ceased contact with most of her friends.  The Medical Assessor was aware that the appellant had not re-partnered since divorcing from her husband.  The Medical Assessor took into account that the appellant had been able to sustain a long term friendship and that she had a good relationship with her family with whom she is close.

3. It does not matter that Dr Oldtree Clark assessed the impairment of the appellant in this area differently from how the Medical Assessor assessed the appellant’s impairment.  There has to be more than a difference of opinion on a subject about which reasonable minds may differ so as to establish error in the MAC.[2] 

   [2] Glenn William Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [66]

4. In the Appeal Panel’s view the assessment that the Medical Assessor made regarding the appellant’s impairment in the category of social functioning was open to him to make based on the reasons he provided, which in turn were based upon the history he obtained at his examination of the appellant and his findings from that examination.  As said, he was entitled to do that. The reasons he provided support the assessment he made.  He did not base his assessment on incorrect criteria in that his assessment was done in accordance with the Guidelines.  It does not matter that his assessment differed from the assessment that
   Dr Oldtree Clark made.

5. With respect to the Medical Assessor’s assessment of the appellant’s impairment in concentration persistence and pace, the Appeal Panel rejects the appellant’s submission that the Medical Assessor’s findings were inadequate to justify his assessment of her impairment in concentration persistence and pace.  As mentioned, the Medical Assessor was entitled to give pre-eminence to his clinical observations of the appellant at the time of the assessment and the history he obtained.  The observations and interview were done over a 55 minute period, and during that time the appellant was able to maintain her focus.  The Medical Assessor was aware that the appellant took some days to complete lengthy documents and had difficulty with reading and finishing a book.  The Medical Assessor observed during his examination of the appellant that she was able to read from a statement she had prepared and this took more than 10 minutes, which involved concentration.  The Medical Assessor was aware that the appellant reported that she has a poor memory and that she relied upon texts from her doctor to ensure she could keep her appointments. 

6. In the Appeal Panel’s view the assessment the Medical Assessor made of the appellant’s impairment in the category of concentration persistence and pace was open to him to make for the reasons he provided.  Again, the fact that he assessed the appellant’s impairment in this category as less severe than what Dr Oldtree Clark had assessed it does not demonstrate error.  In the Appeal Panel’s view, the Medical Assessor based his assessment on the matters that, in his clinical judgment, he considered significant, and for the reasons the Medical Assessor provided for his assessment, it was open to the Medical Assessor to make the assessment he did.

7. For these reasons, the Appeal Panel has determined that the MAC issued on 13 April 2021 should be confirmed.