Falkiner v Pursehouse Rural Pty Ltd
[2024] NSWPICMP 28
•18 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Falkiner v Pursehouse Rural Pty Ltd [2024] NSWPICMP 28 |
| APPELLANT: | Stephen Otway Falkiner |
| RESPONDENT: | Pursehouse Rural Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 18 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Primary psychiatric injury; alleged error in assessment of the employability category of the Psychiatric Impairment Rating Scale; Panel considered that the assessment of class 2 was open to the Medical Assessor and there was no error or the application of incorrect criteria in the assessment; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 September 2023 Stephen Otway Falkiner (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 ground(s) of appeal on which the appeal is made.
Rule 128 of 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 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 sustained a primary psychological injury in the course of his employment with Pursehouse Rural Pty Ltd (the respondent).
The appellant commenced proceedings in the Personal Injury Commission (Commission) on 20 May 2023 claiming weekly benefits, medical expemnses and 15% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 26 April 2022.
The Medical Assessor examined the appellant on 11 September 2023 through video link. The Medical Assessor assessed 7% WPI and deducted one tenth pursuant to s 323 of the 1998 Act. This resulted in a total of 6% WPI as a result of the injury deemed to have occurred on 26 April 2022.
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.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
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 because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
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
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 have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) error in assessment of Class 2 in the Psychiatric Impairment Rating Scales (PIRS) for employability;
(b) on page 11 of the MAC, the Medical Assessor provided a score of 2, being a mild impairment, in respect to employability. The Medical Assessor noted that this was a reduction from Dr Bisht's previous assessment, which awarded Class 3 impairment for employability. The Medical Assessor noted, at page 6 of the MAC, that the reason for this reduction was that the appellant "has been working full-time for three years in an alternative role". This was repeated at page 11 of the MAC, where the Medical Assessor stated the appellant was "able to work full time but in a different environment from that of the pre-injury job";
(c) while the Medical Assessor considered the first of these requirements in the Class 2 descriptors for employability (full time work in a different environment), it appeared that the skill and intellect requirement was not considered in the assessment;
(d) prior to his injury, as reflected in his statements, the appellant was employed at Pursehouse Rural Pty Limited, where his duties included the designing of water reticulation systems, Iiaising with and advising graziers as to effective water use strategies, placing orders for stock and performing general sales duties;
(e) the work which the appellant has been carrying on since July 2020 was fencing work, in respect to the repair and construction of simple fences on a rural property. It required no designing of complicated water systems, no advice to be given, no placing of any orders nor interaction with any customers nor, quite often, with any other workers;
(f) the fencing work, which the Medical Assessor referred to at pages 6 and 11 of the MAC, did not involve duties which required "comparable skill and intellect as those of the preinjury job." The appellant remained completely incapable of performing the pre-injury job. Class 2 impairment in respect to employability was therefore unsuitable;
(g) as such, the assessment was made on incorrect criteria, being in disregard of the test set out in Table 11.6, that being the relevant guide for the assessment of impairment, and
(h) in the alternative, the Medical Assessor made a demonstrable error in misunderstanding the difference between the appellant's pre-injury employment and current employment, which resulted in an unsupportable reasoning process.
The respondent’s submissions included the following:
(a) the relevant criteria for an assessment of employability are set out under Table 11.6 of the PIRS;
(b) the Medical Assessor found that the appellant had a Class 2 impairment for employability, noting “he is able to work full time in a different environment to his pre-injury role, so he has mild impairment” (MAC page 11);
(c) the appellant submitted that his current work was fencing work requiring no designing of complicated waters systems, no advice to be given, no placing of any orders nor interaction with any customers nor, quite often, with any other workers. That evidence did not establishes that the appellant’s current employment did not require comparable skill and intellect to his pre-injury role. While the duties were clearly different, the appellant was working significant hours in a role that required an hour and a half travel and varied skills and duties, as outlined in the appellant’s statement;
(d) notwithstanding the above, a Class 2 assessment did not require the appellant to be working in a role with comparable skill and intellect, it only required him to be able to work in such a role;
(e) further, a Class 3 assessment would be inconsistent with the evidence. A Class 3 assessment suggested that a worker was working less than 20 hours per week in a different position which required less skill or was qualitatively different. The appellant was working up to 46 hours per week in a different position;
(f) the Medical Assessor was required to weigh up both Classes and consider which more appropriately fitted the appellant’s circumstances/condition. Given the nature of the work performed by the appellant, the travel associated with same and the number of hours he was performing, he most appropriately fits within a Class 2 assessment, being a mild impairment. Therefore, the Medical Assessor’s assessment was appropriate and contained no error;
(g) the Medical Assessor provided sufficient reasons to establish that a Class 2 assessment is appropriate and this assessment was open to him based on his clinical judgment and the evidence available;
(h) the Medical Assessor’s assessment of Class 2 for employability was not based on incorrect criteria and did not contain a demonstrable error;
(i) relying on the above, the appellant has not established that the MAC was based on incorrect criteria or contained a demonstrable error pursuant to
s 327 of the 1998 Act, and(j) the Medical Assessment Certificate dated 13 September 2023 should be confirmed.
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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
PIRS Categories
The appellant alleged error in respect of the assessment of the PIRS categories of self care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace and employability.
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 887 (Ferguson), Campbell J was Campbell J in Ferguson v State of New South Wales [2017] NSWSC 857, where his Honour in dealing with 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 AsJ 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…
70. 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.
71. 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 Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Employability
The examples under Table 11.6 for “employability” in the Guidelines are:
“Class 2: Mild impairment: able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: Cannot work at all.”
The Medical Assessor assessed the appellant as Class 3 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability- Class 2.
He is currently working, to look after cattle – ensuring they are calving well and fixing cattle fences. He has been in that work for 3 years, and his site of employment is half an hour away, and his daughter drives him there. He works 4-5 days a week, and he works about 8 hours a day.
Dr Bisht reported Adaptation = 3
He is able to work full time in a different environment to his pre-injury role, so he has mild impairment.”
In commenting on other medical opinions, the Medical Assessor wrote: “I am in agreement with most of the opinion of Dr Bisht, but differ regarding his adaptation, given he has been working full-time for three years in an alternative role”.
In his statement dated 8 June 2021 the appellant wrote: “At the start of July 2020 I began fencing work. This is individual work and does not involve contact with people. I am a casual employee. The work is not constant and fluctuates each week.”
The appellant described his employment with the respondent as follows:
“My work at Pursehouse Rural mostly concerned water, lawn irrigation systems, stock and domestic bores. I have over 25 years of experience installing submersible bore hole pumps. I designed water reticulation systems which included positioning water tanks and troughs. I liaised with graziers about water issues and provided advice for efficient and cost effective options. I also performed day to day sales and ordered stock”.
In a statement dated 30 April 2023 the appellant stated that he had continued to perform his casual fencing work on rural properties for Koiwon Enterprises, which he initially commenced on 14 July 2020. He said that on average, he worked 46 hours per week but this number fluctuated due to harvest. He wrote:
“12. I would no longer be capable of performing work at Pursehouse, nor work which is similar to that which I performed at Pursehouse. Even the mention of things related to my previous work causes me anxiety, such as when people have asked me questions in respect to pumps. I have been unable to engage in such conversations, as they remind me of my time at Pursehouse. In general, I am no longer capable of performing work which requires that I frequently be around others. The fencing work I currently perform allows me to largely work on my own on large and remote properties. The work is also relatively simple and I do not believe I would be capable of performing complex work any longer.
13. On rainy days, when it is not possible to perform fencing work, I must instead work in one of the sheds. There is little work to be done in the sheds, but if I do not attend the sheds on such days, I do not get paid for the day, so I usually perform tasks such as sweeping the floors or tidying the storage areas. There are two other employees, a father and son named Michael and Andrew, who also work on the property and who must also perform work in the sheds on rainy days. I have known them my entire life and they are aware of my limitations. As a result, we
typically do not interact much, even when working within the same shed. The sheds are quite large, about thirty metres by fourty metres in size, and so it is possible to work at separate ends of the sheds on such occasions. Even though I know Michael and Andrew very well, I still become anxious if required to socialize with them at work, becoming sweaty, fidgety and withdrawn. Due to this, I typically do not look forward to going to work on days when it is raining, as I anticipate the possibility of being around others. In contrast, when it is not raining and I am performing my fence work, I am always alone, which I greatly prefer”.
Dr Martin Allan, consultant psychiatrist, in the PIRS rating form dated 24 July 2020, assessed the appellant as Class 3 for adaptation/employability. He provided the following reasons:
“Mr Falkiner is moderately impaired in the area of adaptation. He cannot work in the same position as previously. He can work less than 20 hours per week in this different position, i.e., that of fencing that he has been doing over the last few weeks. This is a much less stressful position for him. He scores 3. I do know that he is relatively early into this role and were this to prove unsustainable for him, this would warrant a review of the score but at this time I do not anticipate a change in this level of capacity over the next twelve months, hence a score of 3.”
Dr Yajuvendra Bisht, consultant psychiatrist, in his report dated 13 March 2023 noted that the appellant “described that he has been working 6 days a week, doing general farm work, for about 2 years”.
Dr Bisht assessed the appellant as Class 3 for employability. He provided the following reasons: “The client is able to work 6 days a week in a different role and with a different employer.”
The appellant submitted that the evidence indicated that the appellant fell within Class 3. The appellant submitted that the Medical Assessor did not consider requirements in relation to skill and intellectual requirement in the Class 2 descriptors for employability but merely full time work in a different environment.
The Appeal Panel considered that the applicant fell between Class 2 and Class 3 when considering the descriptors. The applicant was working full time in a new role. The Appeal Panel accepted that this role was qualitatively different ie less stressful than his pre-injury role. It was a matter for the Medical Assessor to rate the applicant and select which class was appropriate taking into account the history taken, the examination and evidence relied upon by the parties and clinical judgment. The descriptors in Class 2 and Class 3 are examples and not intended to be exclusive.
The Appeal Panel considered that this rating, ie Class 2 for employability was open to the Medical Assessor. Such a rating was not glaringly improbable. The Medical Assessor was aware of all significant factual issues, in particular, the fact that the work the appellant has performed since the injury was less stressful as noted by Dr Allan in his report of
24 July 2020 and as described by the appellant in his statements. The Appeal Panel did not consider that there was a clear misunderstanding by the Medical Assessor or that his reasoning process had not been made out. To be rated Class 3 for employability the descriptors provide that the worker performs less than 20 hours per week in a different position, which requires less skill or is qualitatively different. The appellant clearly worked more than 20 hours a week.The Appeal Panel accepted that the appellant remained completely incapable of performing the pre-injury job. However, as noted above, Class 3 impairment required the worker performs less than 20 hours per week in a different position, which requires less skill or is qualitatively different. The Appeal Panel considered that this difference in this case between the Class 2 and Class 3 rating for employability was a difference of opinion on a subject about which reasonable minds may differ.
The Medical Assessor did not disregard the descriptors set out in Table 11.6, and the Appeal Panel was satisfied that the assessment was not made on the basis of incorrect criteria.
In conclusion, the Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of employability and this rating was not made on the basis of incorrect criteria.
The Appeal Panel noted that even if the appellant had succeeded on establishing error and the rating for employability had been assessed as a Class 3, this would have not have resulted in an assessment of 15% WPI. A rating of Class 3 for employability would have resulted in a median class of 2.5, rounded up to 3, and an aggregate score of 15 which under Table 11.7 would result in 15% WPI. However, the Medical Assessor made a one tenth deduction pursuant to s 323 of the 1998 Act. This deduction was not appealed and therefore a one tenth or 1.5% deduction would have to be made from the 15% WPI, resulting in 13.5% WPI, which would be rounded up to 14% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
13 September 2023 should be confirmed.
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