Farr v Secretary (Department of Communities and Justice)
[2024] NSWPICMP 395
•20 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Farr v Secretary (Department of Communities and Justice) [2024] NSWPICMP 395 |
| APPELLANT: | Michael Farr |
| RESPONDENT: | Secretary (Department of Communities and Justice) |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 20 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of 8% for psychologically injured corrective services officer; whether Medical Assessor (MA) erred by not applying American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA5 guidelines); whether MA erred by applying gardening activities to two categories of the Psychiatric Impairment Rating Scale (PIRS); whether MA erred by failing to review one of the expert reports; chapter 11 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (the Guides) excludes AMA5 guidelines; gardening activities relevant to both categories; Lancaster v Foxtel Management referred to; impugned expert report related to date of injury and referral by consent orders made it irrelevant; presumption of regularity that it would have been read; Jones v Registrar applied; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2023 Michael Farr, 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 4 December 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 6 October 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury on 12 June 2020 causing a psychiatric/psychological disorder. Mr Farr was employed as a Senior Corrections Officer for Secretary (Department of Communities and Justice) (the respondent). His injury commenced eight years before the assessment arising from the circumstances of his employment including lack of staff, a constant fear of assault, witnessing various trauma including murdered inmates.
He underwent psychological treatment since 2020 and had been taking anti-depressant medication being Mirtazapine and Naprosyn at the time of the assessment.
The Medical Assessor assessed 8% 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 Procedural Direction PIC7.
The appellant sought to be re-examined by a Medical Assessor who was a member of the Appeal Panel but as no error was established in the appeal, no re-examination was required.
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 which have been considered by the Appeal Panel.
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.
THE MAC
In considering Mr Farr’s social activities and activities of daily living, the Medical Assessor said:[1]
“He lives on a farm 40km out of Bathurst, with his wife Linda, daughter Emma, son-in-law Hayden and grandson Levy. ….
…..
He said currently, he spends his time on the property, and his physical injuries have required surgery, such as his right shoulder. He spends his time gardening to keep busy. …”
[1] Appeal papers page 27.
Paragraph 10 of the MAC
At paragraph 10 the Medical Assessor listed the matters he had taken into account. He included a reference to the report dated 19 September 2022 of Dr Abdal Khan, the psychiatrist who had been qualified by Mr Farr. The Medical Assessor summarised Dr Khan’s pinion, without commenting on it.
Table 11.8 Rating Form
In the table 11.8 Psychiatric Impairment Rating Scale (PIRS) rating form, the Medical Assessor noted under Self-Care and Personal Hygiene:[2]
“He said he showers every day, and he said he does not require prompting for this. He said he shaves once a week, which is less frequently than before, as he is no longer working, so he doesn’t have to keep himself groomed to the same standard. He said he has been cooking occasionally, such as managing the barbecue or breakfast, and he has been cooking less than prior to the subject injury when he was cooking every day. He has not been doing the laundry, though he will pick up the dirty laundry to the laundry to be done.
As he can still survive living independently, albeit with a degree of self-neglect, he has mild impairment.”
[2] Appeal papers page 33.
The Medical Assessor noted under Social and Recreational Activities:
“He said he has friends from work, which has meant that he has been more distant with them, as talking to them can trigger you and so he has been talking to them less frequently, approximately down to every few months. He doesn’t see them in-person now. Prior to the subject injury, he would see them on a weekly basis, and they would go fishing or bike riding. He said currently, he spends his time on the property, and his physical injuries have required surgery, such as his right shoulder. He spends his time gardening to keep busy. He said he has not been fishing for a while, then he said he went fishing with his sister-in-law 2 days ago to the coast, and he went to a competition shoot at Canberra with his brother and his son 4 weeks ago. He said he pushed himself to participate in those events, rather than requiring someone to push him to engage.
As he has been able to engage in social events, albeit with less frequency, he has mild impairment.”
The Medical Assessor noted under Social Functioning:[3]
“He has been married since 1991, and he said their relationship has been going alright, and he denied any fighting or separation, though they have ‘normal’ disagreements. He said his relationship with his daughter Emma remains close. He said he talks to his son periodically, and this has remained the same compared to prior to the subject injury.
He has one brother, and five sisters, and he remains in weekly contact with his brother, and they play cards on a Saturday night, and they live in a nearby property.
He sees his second-oldest sister every fortnight, but he doesn’t see his other sisters as they live away. He said his relationship with them has remained the same compared to prior to the subject injury.
He said he has friends from work, which has meant that he has been more distant with them, as talking to them can trigger you and so he has been talking to them less frequently, approximately down to every few months. He doesn’t see them in-person now.
As he has maintained a close relationship with his wife and children, and some siblings, and regular contact with some friends, albeit without in-person meet-ups, he has mild impairment.”
[3] Appeal papers page 34.
The Medical Assessor noted under Employability:[4]
“He said he last worked in 2020, for Corrective Services, and he was medically discharge at the beginning of 2023. He said he had been working fulltime prior to leaving his work. Since leaving work, he has not been able to return to work as he cannot ‘handle’ even driving past work, and he cannot focus enough to look for alternate work.
As he cannot work, apart from undertaking some gardening, he has severe impairment.”
SUBMISSIONS
[4] Appeal papers page 34.
The appellant
The appellant challenged the assessments in the categories of self-care and personal hygiene, social functioning and employability.
The submissions for Mr Farr were prepared by Mr Young of counsel.
Ground 1 – failure to supply AMA 5 Part 14.3a Activities of Daily Living
Mr Young reproduced a portion of Part 14.3a of AMA 5 which included amongst the activities of daily living, “self-care, personal hygiene, communication, ambulation, travel, sexual function and sleep.”
Mr Young emphasised the activities of sexual functioning and sleep. He said “I am instructed” that if the Medical Assessor had asked him, Mr Farr would have explained that he has not had sex with his wife for a considerable period of time since the injury.
His disturbed sexual functioning would have prompted the Medical Assessor to give a class 3 rating to either the self-care and personal hygiene category or the social functioning category of the PIRS.
Similarly, a class 3 rating would have been given as a consequence of his sleep disturbance with regard to the categories of either self-care and personal hygiene, or social and recreational activities.
CONSIDERATION
This ground may be dealt with shortly. Mr Young’s somewhat peremptory reference to Part 14.3 of AMA 5 we assume was made on the assumption that the methodology therein was applicable to claims for psychiatric injury within the NSW scheme. Regrettably the submission overlooked the provisions of the foreword at Chapter 11 of the Guides, which provides:
“AMA 5 Chapter 14 is excluded and replaced by this chapter. Before undertaking an impairment assessment, users of the Guidelines must be familiar with (in this order):
·the Introduction in the Guidelines
·chapters 1 and 2 of AMA5
·the appropriate chapter(s) of the Guidelines for the body system they are assessing.
The Guidelines replace the psychiatric and psychological chapter in AMA 5.”
This ground is accordingly rejected.
Ground 2 – double counting of “Gardening” for Social and Recreational Activities and
Employability
Mr Young referred to the history taken by the Medical Assessor of the effect Mr Farr’s injury had on his activities of daily living, where the Medical Assessor had noted that Mr Farr spent his time “gardening to keep busy.”
Mr Young noted that the Medical Assessor had referred to Mr Farr’s gardening activities in both the Social and Recreational Activities and the Employability categories when giving his reasons in the Table 11.8 PIRS Rating Form.
This, he submitted, “double counted” Mr Farr’s gardening “to unfairly diminish the overall WPI assessment”.
Ground 3 – Failure to consider Dr Khan’s report dated 11 September 2023
Mr Young alleged that the Medical Assessor had “failed to review Dr Khan’s report dated 11 September 2023.” Procedural fairness had accordingly not been afforded to Mr Farr, as the Medical Assessor had not considered all the medical evidence lodged on his behalf.
The respondent
We note the industry and consideration given by the respondent to the first ground of appeal, but as the appellant was relying on guidelines that were not applicable, no further consideration is necessary.
As to the second ground regarding the Medical Assessor’s comments about Mr Farr’s gardening, the respondent submitted that the class 4 assessment was consistent with the evidence that was put before the Medical Assessor. We were referred to comments by Dr Suzanne Alder, psychologist who stated on 23 June 2021:[5]
“He is lucky that he has a farm and can continue to work it, or he would be completely unemployable. He is close to retirement age and consequently sees the farm as being a viable option for the remainder of his working life.”
[5] Appeal papers page 85.
We were referred to a further comment in Dr Alder’s clinical notes:[6]
“He is capable to doing the work he needs to around his farm, which he has been doing for his whole life. He can function independently because his habitual responses are intact….
…He may be capable of performing routine physical tasks around the farm, and he may get great pleasure out of preparing for his daughter’s wedding, but at the same time remain unable to returning to his work”. [sic]
[6] Appeal papers page 92.
We were referred to some of the comments from general practitioner, Dr Mon’s clinical notes, which also referred to Mr Farr’s working on the farm.[7]
[7] Appeal papers pages 194, 196, 201, and 262.
We were also referred to Mr Farr’s statement of 18 May 2023, where he stated:[8]
“Given my age, I am close to the age of retirement, but I am unsure whether my farm business alone will financially sustain my future.”
[8] Appeal papers page 58 at [39].
The respondent submitted that the weight of the factual and medical evidence demonstrated that Mr Farr was continuing to engage in farm work.
As to the third ground of appeal, the respondent noted the submission that the Medical Assessor had failed to take into account Dr Khan’s report of 11 September 2023. The respondent submitted that the Medical Assessor was not required to refer to every piece of evidence referred to him and that in any event Dr Khan’s report of 11 September 2023 confirmed his opinion of 19 September 2022. There was an additional observation that Mr Farr’s statement of 18 May 2023 was consistent with Dr Khan’s findings in his earlier report.
DISCUSSION
We have dismissed the first ground, as explained above.
As to the second ground, that there had been “double counting of ‘gardening’,” we were not referred to any legislative or other authority that prohibits the use of one activity from being considered in more than one category where it is relevant. Chapter 11.12[9] provides:
“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.”
[9] Guides page 55.
We see no conflict in the manner in which the Medical Assessor has used the involvement by Mr Farr in his farm and his garden. It was a relevant consideration in Social and Recreational Activities to show a level of activity that, along with the other findings within the reasons, justified a class 2. The relevant classes pursuant to Table 11.2 are:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general
population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
Gardening is a recreational activity, and one which is appropriate to a person of Mr Farr’s age, sex and background (culture). There is no need for such an activity to be in company, as each case is dependent on its own facts.[10] The class 2 rating ascribed includes a situation where a person can perform an activity without a support person, but acknowledges some reduction in that particular activity. In any event, the inclusion of gardening amongst the many other activities mentioned by the Medical Assessor in this category is not decisive in judging the appropriateness of the class 2 rating.
[10] See Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 per Basten AJ at [72].
The relevant classes for Employability at Table 11.6 are:
“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.”
We note the respondent’s submissions that the evidence before the Medical Assessor was such that the appellant’s submissions were no more than a mere expression of an opinion about which reasonable minds might differ. This would be insufficient to establish error, it was submitted.[11]
[11] See discussion by Basten AJ in Lancaster, Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 per Basten AJ from [79].
We note, however, that the respondent did not attempt to support the language used by the Medical Assessor, but rather referred to the material that was before him, some of which we have reproduced in considering the respondent’s submissions. Although the Medical Assessor referred to “some gardening,” he did not refer to the farming activities that were alluded to by the respondent. We have some reservations with the prospect that a person’s ability to garden is necessarily commensurate with an ability to work more than one or two days at a time, less than 20 hours per fortnight, but even if that were an error, the fact that Mr Farr lives on a 500 acre property which he looked to for support implies that he had some capacity for work. We note that Dr Alder described Mr Farr as “capable [of] doing the work he needs to around his farm,” which does not denote someone that is totally impaired from employment, but is consistent with someone who may be severely impaired. Accordingly we confirm this assessment.
Dr Khan
Mr Young did not advert to any evidence that would support his contention that the Medical Assessor had not reviewed Dr Khan’s report of 11 September 2023. The allegation may have been made, as best as we can determine, by speculating that because the Medical Assessor did not mention Dr Khan’s report at [10] of the MAC, he must have overlooked it. As we noted, the Medical Assessor summarised Dr Khan’s report of 19 September 2022, but he did not mention the later report, admitted as a late document, of 11 September 2023.
There is a presumption of regularity (in this case, that all the material referred would have been read) which attends administrative decision makers, of which a Medical Assessor is one.[12] Presumptions are rebuttable, but no basis for doing so in this case has been advanced, beside mere speculation.
[12] Jones v Registrar WCC [2010] NSWSC 481.
A perusal of Dr Khan’s report of 11 September 2023 reveals that Dr Khan was asked to answer a question as to the proper date of injury. The Medical Assessor would have had no interest in that subject, the matter having been referred to him by Consent Orders,[13] and no doubt he put it to one side.
[13] Appeal papers page 37.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 December 2023 should be confirmed.
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