Fitzgerald v State of New South Wales (NSW Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	Fitzgerald v State of New South Wales (NSW Police Force) [2023] NSWPICMP 14
APPELLANT:	Aarron Fitzgerald
RESPONDENT:	State of New South Wales (NSW Police Force)
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	19 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from assessment of 8% whole person impairment for psychological injury to police officer; whether additional evidence should be admitted; whether Medical Assessor (MA) disregarded guidelines; whether MA ‘s assessment entirely premised on clinical findings only; whether MA selectively disregarded medical evidence; whether MA had erred in failing to refer to appellant’s motivation for his activities; Held – additional evidence (a statement from the appellant and test results from his psychologist over two years) rejected; observations as to appellant’s apparent ignorance of the requirements for the admission of additional evidence; Lukacevic v Coates Hire Operations Pty Limited applied; appellant’s submissions as to factual matters found to overlook tracts of relevant evidence; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 June 2022 Aarron Fitzgerald, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 24 May 2022.
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):
·        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. 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.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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 27 January 2022 the delegate to the President referred this matter to the MA for an assessment of WPI caused by a psychiatric/psychological disorder which occurred on a deemed date of 14 August 2020.
Mr Fitzgerald was born in 1981 and was attested into the police force in 2013. As a police officer he was exposed to many traumatic events, the effects of which he did not think were troubling him until April 2019, when his colleague was stabbed in the back.
He may have been having some symptoms prior, but it was that episode that caused the onset of his psychological condition. He kept working for the subsequent 18 months but by August 2020 sought medical attention after he had been particularly triggered by seeing a suspect carrying a knife. The MA assessed a WPI of 8%.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant sought to be re-examined by a Panel MA, however no error was found and accordingly no re-examination was required.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

The MAC

The parts of the medical certificate given by the MA 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.
Mr Fitzgerald sought a review of the MAC, alleging that the MA had made demonstrable errors, one of which involved the admission of additional information. In order to discuss this ground however, it is necessary first to refer to the MA’s reasons. We shall then rule on the additional information before considering the submissions regarding Mr Fitzgerald’s further substantive grounds.

The MAC

With regard to the history of the injury, the MA said:[1]
“Although [Mr Fitzgerald] felt, as he says in his statement, ‘alright enough to continue working,’ he continued to experience increasing symptoms over the subsequent 18 months [since his colleague was stabbed in April 2019] . He saw his GP in early 2020 but these consultations appeared to be focused on his blood pressure and weight, at the time about 100kg. There were also flare-ups of his chronic lower back pain and hip problems. However by August 2020 he presented with psychological problems, particularly triggered by seeing a suspect carrying a knife, and was then referred to a psychologist, Krista Hawke. He initially saw Ms Hawke very frequently and she has undertaken what appears to be exemplary evidence-based treatment including exposure therapy and EMDR. Over this time he has had a slow but upward trajectory in his symptoms and impairment although with periods of regression, as is common. Initially he found the EMDR very confronting but again, as is frequent, he has found these sessions less confronting and more helpful at time. For some time he also had an exercise physiologist who has now provided him with a gym plan. His GP treated him with Mirtazapine and this was later changed to Escitalopram. He has had three reviews with a local psychiatrist to manage this medication and says that with his medication he is ‘generally okay as long as I don’t get triggered.’ Over the past few months he has been looking at moving on with his vocation, working with Axes, examining roles he can do in the future. He had hoped to try occupational therapy but had not realised the very high academic qualifications required for that and is now looking at potentially moving into some form of disability support work although has not actually engaged in this yet.”
[1] Appeal papers page 88.
As to Mr Fitzgerald’s present symptoms, the MA said:
“Present symptoms: Mr Fitzgerald’s mood is not chronically or pervasively low and his is certainly not anhedonic. He has variable periods and says that currently he is in one of his ‘flat cycles’ which can last from a few days up to week or so. During these periods he is not miserable per se but has reduced motivation and less interest in his self-care and social activities. He goes to sleep between 9:30pm and 11pm, depending on how late his youngest daughter stays up as each of them will lay with one of the children to get them to sleep. He often uses Phenergan and quickly falls asleep but wakes frequently around 3am. At times he can recall nightmares and sweats, and at other times cannot recall waking but his wife reminds him of how he was at night. He says these now occur 1-2 times per week, i.e. far less frequently than previously. He is able to return to sleep until approximately 5:30am-7am, thus gaining a normal sleep duration but with a middle insomnia. He still has some reduced levels of energy and perceived reduced concentration, generally more linked to reduced motivation….If people engage in anti-social behaviour he can be quite over-reactive still, but the irritability with his family has diminished substantially. He and his wife have become closer over time and he is working actively on this.”
With regard to Mr Fitzgerald’s social activities and activities of daily living, the MA took an extensive history which covered Mr Fitzgerald’s daily activities. The MA noted that Mr Fitzgerald would wake with the children and help them get ready for school most days, and on the days that Mrs Fitzgerald was working he would help them get dressed. He looked after Elsie aged 4 whilst Harry was at kindergarten. He would manage all of Elsie’s care and food during Mondays, on Tuesday and Wednesday when the children went to school he was at home on his own when he would not do much activity besides go for a walk and do some chores. The MA said:[2]
“Thursdays are the day that he and [Mrs Fitzgerald] have without the children and they go out for a regular lunch date.”
[2] Appeal papers page 90.
The MA noted on Fridays and over the weekend Mr and Mrs Fitzgerald shared the children. He would take them to dance or soccer and these activities were shared. The MA noted:[3]
“[Mr Fitzgerald ] is an informal assistant coach with the boys’ soccer teams, really enjoys doing this and watching them. He says he also interacts with the other parents there, many of whom they have known for years and get on well.”
[3] Appeal papers page 90.
The MA noted that Mr Fitzgerald was less engaged with his old school friends and he can be somewhat irritable when he was out.
The MA noted Mr Fitzgerald was not as engaged at social events as he used to be, giving an example that a recent wedding he did not dance as he would have previously.
“FINDINGS ON MENTAL STATE EXAMINATION[4]
Mr Fitzgerald was casually-dressed, kempt and bearded. He showed a broadly reactive affect, was not restricted to any range, both smiling at times and also becoming tearful when describing the state he was in the last year or so at work. He does not describe either cardinal feature of depression, but intrusive recollections, avoidance, increased arousal, startle, variable motivation and energy, middle insomnia, normal sleep duration, intermittent perceived concentration difficulties and infrequent panics. There are no psychotic phenomena. He was able to focus well for over 80 minutes and showed no cognitive difficulties in the pace of, and persistence with, the assessment process.”
[4] Appeal papers page 90.
In his summary the MA said:
“Mr Fitzgerald developed a Posttraumatic Stress Disorder following a triggering event of a colleague’s stabbing, enhanced by his colleague’s reaction to this. This then led, as is not uncommon, to further recollections. Although he has had evidence-based treatment of an exemplary nature, and appears to have made substantial symptomatic and functional gains over time, he continues to meet the criteria for this disorder. He continues on a slow and variable upward trajectory.”
As to consistency of presentation the MA said:[5]
“Mr Fitzgerald was internally consistent and his history consistent with that elicited elsewhere and explored any inconsistencies within the dispute. [sic]”
[5] Appeal papers page 90.
The MA considered in some detail the other medical opinions before him. He discussed the report of the medico-legal consultant psychiatrist retained for the appellant, Dr Jeff Bertucen. The MA noted that when Dr Bertucen assessed him in June 2021 Mr Fitzgerald appeared to be more symptomatic, but had improved over time with his treatment.
The MA addressed Dr Bertucen’s assessment in the terms of the Psychiatric Impairment Rating Scale (PIRS) He disagreed with Dr Bertucen’s assessment of the PIRS categories of self care; social and recreational activities; and concentration, persistence of pace.
In the category of self-care and personal hygiene Dr Bertucen assessed Mr Fitzgerald as class 3.[6]
[6] Appeal papers page 155.
The MA valued that impairment as class 2, saying that Mr Fitzgerald was only occasionally prompted now to wash or shower and he was also responsible for the care of his own children during the day “indicative of a mild impairment and certainly not someone who is unable to care for themselves.”
In the category of social and recreational activities Dr Bertucen again assessed a class 3. The MA disagreed and assessed a class 2 value. The MA said:
“Although he has relinquished some activities due to motivation, he gave up soccer due to the team folding and continues to be involved in coaching his son’s team and socialises, interacting with the parents.”
He therefore found that Dr Bertucen’s assessment did not meet the criteria for a moderate class 3 impairment.
In terms of concentration, persistence and pace Dr Bertucen again found a moderate impairment of a class 3 but the MA found that Mr Fitzgerald did not meet the criteria for such an evaluation.
The MA said:[7]
“In terms of concentration, persistence and pace, today Mr Fitzgerald reported he was able to watch a whole movie and has subjective concentration difficulties. However, throughout the 80 minutes of the assessment he showed good concentration, attention, was able to persist with the assessment and showed no reduction in any of the pace, any sense of psychomotor retardation or cognitive difficulties, indicative of an objective impairment and would thus be classified as having a mild impairment. I agree with Dr Bertucen’s other classes.”
[7] Appeal papers page 92.
The MA considered the medico-legal report obtained on behalf of the respondent from Dr Kumar and he considered the reports by the psychologist, Krista Hawke. He noted that Ms Hawke indicated the severity of Mr Fitzgerald’s symptoms in late 2020 but observed that by May 2021 the appellant had “made considerable gains in his treatment although remains functionally incapacitated.”[8]
[8] Appeal papers page 93.
The MA stated:[9]
“Reports by Krista Hawke, psychologist
The first couple of these are clinical reports indicating the severity of his symptoms in late 2020. However by May 2021 she comments that ‘Aarron has made considerable gains in his treatment although remains functionally incapacitated’. She notes areas of improvement in a range of domains. In a report dated 1 November 2021 she critiques the IMEs and provides an understandably advocative report. I agree with her diagnosis and, as above, her excellent treatment, but some aspects seem unsubstantiated by his appearance today. For instance she says he could not concentrate for 15 minutes, yet today he showed excellent concentration for 80 minutes of the assessment without any difficulties. He also reported being able to watch whole movies and gave me examples of these. He has improved his relationship with his wife and they are engaged in regular dates and have recovered their intimacy although there still remains some tension and irritability.”
[9] Appeal papers page 93
The MA noted Ms Hawke’s rating on the PIRS but said that none of the scores were actually supported specifically, and some were quite clearly at odds with the descriptors in the categories. He gave an example of where Ms Hawke had allowed a class 3 for the Travel category, but noted that Mr Fitzgerald was clearly able to travel locally on his own, which the MA said again reflected the advocative nature of Ms Hawke’s report.
In his assessment, the MA said:[10]
“I have added 1% for the effect of treatment. It is apparent that although there has not been a complete elimination of his impairment, he would have been substantially more impaired had I assessed him at his worst some 18 month ago.”

FRESH EVIDENCE

[10] Appeal papers page 95.

Mr Fitzgerald’s failure to seek leave

The appellant did not appear to be aware that leave was needed to admit fresh evidence, or evidence in addition to the evidence received in relation to the MAC. Mr Fitzgerald’s submissions appeared to assume that the additional material he was relying on was admissible as of right.
The admission of additional evidence in this jurisdiction is governed by both statute and authority.
Section 328(3) of the 1998 Act is intituled “Procedure on appeal.” Relevantly, it provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
Additionally such evidence, even if it complies with the above statutory requirements, must be of substantial prima facie probative value where there is a dispute as to what occurred during the assessment. In Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 Hodgson JA stated at [78]:
“78 A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”

The additional evidence

The additional evidence raised under this ground was:
i.a further statement by Mr Fitzgerald dated 16 June 2022, and
ii.psychological test results taken by Ms Krista Hawke from 2020 to 28 May 2022.

Further statement of Mr Fitzgerald dated 16 June 2022

Mr Fitzgerald stated that he was “extremely disappointed” with the assessment. He said that “it is clear to me” that his condition was not accurately or properly considered. The MA had not properly considered the circumstances, and Mr Fitzgerald was accordingly unable to accept the assessment.
Mr Fitzgerald made the following points:
·        Mr Fitzgerald challenged the MA’s finding that Mr Fitzgerald had showed excellent concentration for the 80 minutes of the assessment. He said that such a statement did not accurately reflect the stress he was feeling, and he was surprised that Medical Assessor Glozier did not notice when he, Mr Fitzgerald, broke down in tears. After the assessment Mr Fitzgerald said he was “so incredibly distressed” that he had to contact his wife and get her to come home early to comfort him.
·        Mr Fitzgerald said that the MA appeared to have misunderstood what physical activity meant in relation to the management of Mr Fitzgerald’s symptoms. Mr Fitzgerald said that since the beginning of his symptoms he had been encouraged to engage in physical or outdoor activities, which he said “really are my sole reprieve from the crushing anxiety I continue to feel everyday”.
·        Mr Fitzgerald referred to his sessions with a sports physiologist which had been funded by the insurer. He said that in 2022 he had “only had a couple of sessions” with the sports physiologist and although he had a short-term gym membership organised for him, he had not in fact used it.
·        He indicated that the “exercising planning” that the MA referred to was evident in 2021 but that in the last six months he had “hardly had any intervention” and that he had disengaged from those activities.
·        Mr Fitzgerald said that he was “extremely concerned” that the MA had “completely misunderstood” his involvement in supporting Mr Fitzgerald’s son’s soccer team. He said that the involvement was “partly due to all my doctors’ encouragement to get outdoors to help with my anxiety and clearing my head.” Mr Fitzgerald said it was more important that his “bare minimum involvement” in coaching was important to mend the “damage that my work place injury had had on my relationship with my son.” Mr Fitzgerald said he was distressed at the deterioration in the relationship and said there was “only so much I could do to try and help that situation.”
·        Mr Fitzgerald stated that although the MA said that Mr Fitzgerald “often” used Phenergan to assist with sleep, in fact he used it every night. He said that without the use of Phenergan and alcohol he experienced insomnia. He took issue with the description of those symptoms by the MA as “mild insomnia”. He said, as we understood him, that the combination of Phenergan and alcohol would have the effect of knocking himself out during the night “although I continue to suffer from nightmares etc”.
·        Mr Fitzgerald said that when children are at school or when his wife was at home, he would sleep during the day for one to two hours. He said:
“I would estimate I drink on average about (insert amount) (sic) per night.”
·        Mr Fitzgerald was unable to understand the MA’s comments about Mr Fitzgerald’s ability to concentrate and watch movies. He stated that his ability to “zone out” to a movie was not an accurate way to determine his ability to concentrate and neither was his ability to engage in conversation. The MA’s comments did not reflect Mr Fitzgerald’s struggle to read anything more than two paragraphs for more than 10-15 minutes and that further theory based training was not going to happen due to his inability to concentrate and organise his thoughts.
·        Mr Fitzgerald then referred to the part that his wife plays in the financial organisation of the household, including the management of their son’s National Disability Insurance Scheme package. Mr Fitzgerald conceded that he could feed, dress and take his children to sporting activities. He said that the MA was not aware that it was Mrs Fitzgerald who organised all those appointments and payments because Mr Fitzgerald himself was unable to manage any level of planning.
·        Mr Fitzgerald alleged that the MA’s comments about his concentration did not reflect a number of matters. Mr Fitzgerald mentioned that:
§he forgot simple tasks to complete (moving from one room to the next);
§he left his young children in the front yard unattended (actually on a number of occasions) walking back inside or to the backyard forgetting they were there;
§he struggled to remember whether he has taken his medication;
§he regularly made wrong turns when driving locally, and
§he frequently now loses personal items.
·        Mr Fitzgerald referred to his previous statement that his wife assists with email correspondence and all the documentation related to his illness. He stated that she had helped him with the current statement.
·        Lastly, Mr Fitzgerald referred to his habit of having Thursdays off without the children with his wife so that they could have lunch together. This had only started in the last eight weeks, Mr Fitzgerald said, and was designed to help his wife meet the demands that were placed on her over the last years due to his injuries. This assisted to meet the extra demands caused by his illness, which still took a significant toll on their relationship, he said. Mr Fitzgerald objected to the MA’s description of those lunches as “regular dates”. This was, Mr Fitzgerald said, because they were not doing “fun things” but they would generally pick up takeaway and eat it on their back deck. He said there had been a number of times that his wife had taken the children away and gone to her parents to get away.

Decision as to Mr Fitzgerald’s statement

Mr Fitzgerald’s statement is rejected. Mr Fitzgerald expressed disappointment at the outcome of the MAC. His disappointment had been caused he said because he considered that the MA had not accurately or properly considered Mr Fitzgerald’s circumstances. This is a not uncommon claim made by disappointed litigants and, as explained above, Hodgson JA in Lukacevic discussed the policy considerations that relate to statements similar of this kind.
We note that Mr Fitzgerald has not denied the matters of fact that the MA relied on. Mr Fitzgerald agreed:
i.that he engaged in physical and outdoor activities;
ii.that he was funded by the insurer to ongoing sessions with a sports physiologist;
iii.that a gym membership was organised for his use;
iv.that he was helping to coach his son’s soccer team;
v.that he used Phenergan to assist with sleep;
vi.that he had lunch with his wife every Thursday;
vii.that he watched movies but that he had some inability to concentrate and organise his thoughts, and
viii.that his wife managed all his financial duties, and assisted with documentation and correspondence.
However, Mr Fitzgerald sought to “clarify” these issues. He explained, for instance, his motivation for his physical activities, alleging that the MA “misunderstood” why he engaged in physical activity. Similarly Mr Fitzgerald expressed “extreme concern” that the MA had “completely misunderstood” his involvement in coaching his son’s soccer team. The reasons were said to be the encouragement by his doctors, and his desire to further his relationship with his son.
Similarly, Mr Fitzgerald took issue with the MA’s description of his sleeping habits as “mild insomnia” rather than “insomnia” and his use of Phenergan as being “often,” rather than “every night.” He objected to the description of his Thursday lunches with his wife as a “date”, and he did not understand why the MA regarded his ability to watch movies as determining his ability to concentrate.
Although no specific challenges were made to the assessment of the various categories within the PIRS in the substantive appeal, it is perhaps of value to examine at this point, the manner in which psychiatric claims are assessed.

The PIRS

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[11] 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.”
[11] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[12].
[12] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[13] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. 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’.
24. 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.
25. 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’: Appeal Panel reasons at [37].”
[13] [2017] NSWSC 887.
In Glenn William Parker v Select Civil Pty Ltd,[14] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [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. (Ferguson [24])…”
[14] [2018] NSWSC 140.
In Jenkins 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.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the Approved Medical Specialist in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a)    if the categorisation was glaringly improbable;
(b)    if it could be demonstrated that the AMS was unaware of significant factual matters;
(c)    if a clear misunderstanding could be demonstrated; or
(d)    if an unsupportable reasoning process could be made out.
It can be seen therefore that the purpose of the PIRS is to enable the medical assessor to establish the behavioural consequences of a claimant’s psychiatric disorder. The relevant issue for the medical assessor is not the motivation of the person who engages in such behaviour, but rather whether that person is able to so engage at all. Mr Fitzgerald sought to argue with the MA’s professional judgment by disagreeing with the basis of the MA’s reasoning. His arguments need to be seen in the light of the experience, training and expertise that an MA brings to his assessment. He/she utilises an objectivity and a professionalism that a claimant does not have.
Whether Mr Fitzgerald thought the MA’s reasons were inadequate or not is a matter that carries little probative weight. It must also be born in mind that a disappointed litigant who has not crossed the requisite threshold might hold some subjective and misinformed views of the relevance of the various points made by the MA, and indeed innocently reconstruct an erroneous memory. For instance, Mr Fitzgerald expressed surprise that the MA did not notice that Mr Fitzgerald broke down in tears. In fact, the MA did note in his examination that Mr Fitzgerald became tearful.
Mr Fitzgerald’s allegation that the MA did not accurately or properly consider Mr Fitzgerald’s circumstances was not made out in the detail of Mr Fitzgerald’s statement. Mr Fitzgerald by and large confirmed the factual findings made by the MA regarding his sporting/coaching activities. Mr Fitzgerald’s statements that he hardly had any intervention with exercise planning in the last six months, or that although he had a gym membership, he had never used it, were of little probative value in view of the detail taken by the MA. The MA found that the exercise physiologist had been available “for some time” and did not suggest Mr Fitzgerald was continuing with it. Again, although the MA noted that the physiologist had given Mr Fitzgerald a gym plan, he did not suggest that Mr Fitzgerald was using it. Mr Fitzgerald agreed that the insurer had funded ongoing sports physiologist in 2021 and 2022. Mr Fitzgerald agreed also he did watch movies.
Mr Fitzgerald’s statement of 16 June 2022 lacked the substantial prima facie probative value required to overcome the policy considerations outlined by Hodgson J. His evidence lacks the particularity necessary to give it the required probative value. He advanced an extremely subjective disagreement. He could not demonstrate any glaring improbability in the MA’s assessment, nor could he demonstrate that the MA was unaware of any significant factual matter. There was no misunderstanding identified, Mr Fitzgerald being in the main puzzled by why his admitted activities had been given such prominence by the MA, and Mr Fitzgerald did not establish any basis on which it could be said the MA’s reasoning process was unsupportable.

Test results from Ms Hawke

The material relied on from Ms Krista Hawke were the tests applied in the course of her treatment of Mr Fitzgerald’s condition. Two tests were repeatedly administered over a period of time, the first being described as a DASS-21 test, and the other as a PTSD Checklist 5 (PCL – 5).
The DASS-21 test was administered on the following dates:
·        1 September 2020;
·        20 October 2020;
·        20 April 2021;
·        15 May 2021;
·        28 July 2021, and
·        28 May 2022.
The PTSD Checklist 5 (PCL – 5) was administered on the following dates:
·        1 September 2020;
·        27 October 2020;
·        24 January 2021;
·        12 May 2021;
·        28 July 2021;
·        15 November 2021;
·        17 November 2021, and
·        28 May 2022.
It can be seen that all the additional material, save that of 28 May 2022, pre-dated the medical assessment which took place on 18 May 2022.
The appellant submitted that the additional records were “informative about the ‘trajectory’ of the appellant’s condition.” We understood the purpose of the tender of Ms Hawke’s documents was to show that there had been no improvement in Mr Fitzgerald’s disorder, and that a proper consideration would have led to “the only reasonable conclusion” that the appellant’s condition had been persistent and consistent. We note that there was no expert opinion lodged that confirmed that analysis.
The basis of the tender was said to be that Ms Hawke’s test results were “irreconcilable with the assessor’s opinion that the appellant had shown overall improvement in his condition arising from his workplace injury.”
The information was said to be “entirely” in accord with the balance of the treating medical records and Mr Fitzgerald’s own evidence.

Decision as to Ms Hawke’s test results

Ms Hawkes’ tests results are rejected. As indicated, it did not appear that the appellant was aware that this evidence was not admissible as of right. No submissions were addressed to the statutory requirements for such admission pursuant to s 328(3) of the 1998 Act. With the exception of the test results of 28 May 2022, all of the evidence was available to the appellant before the medical assessment, and there seems to be no reason why they could not reasonably have been obtained by the appellant before the medical assessment. The test results of 28 May 2022 of themselves have no probative value.
Additionally, the test results in any event are of little probative value. The so-called “DASS-21” tests were based on a questionnaire completed by the patient, who was required to answer a set number of questions of a general and leading nature as to whether the suggested symptom was experienced in four multiple choice answers, namely “never,” “sometimes”, “often,” or “almost always.”
The PTSD Checklist 5 (PCL – 5) followed the same pattern, except there are five multiple-choice answers, namely “not at all,” “a little bit,” “moderately,” “quite a bit,” and “extremely.”
Whilst these tests can be of some value to treating psychologists, they are too unreliable to have any forensic value of themselves.

THE SUBSTANTIVE CASE

Appellant’s submissions

Failure to consider relevant information

The appellant referred us to Chapters 1.47 and 11.6 of the Guides. Chapter 11 is concerned with the assessment of psychological or psychiatric injuries.
The appellant referred to the MA’s summary and the 1% assessed for the effect of treatment. Mr Fitzgerald submitted that the MA’s findings appeared to be “entirely premised on alleged clinical findings at the time of assessment”. The appellant referred to the MA’s findings on mental examination (reproduced above) to support this assertion.
It was submitted that the MA had disregarded contemporaneous and confidential evidence regarding Mr Fitzgerald’s disability and impairment over time in finding that Mr Fitzgerald had an “upwards trajectory.”
Mr Fitzgerald referred to remarks made by the MA regarding the other specialists. In relation to Ms Hawke it was submitted that the MA had demonstrated “decision making and a propensity for judgment beyond the scope of the referral”. It was submitted that the MA had found that Ms Hawke had taken an “advocative” position, from which it was submitted an implication could be drawn that Ms Hawke’s opinion was being “selectively disregarded”. This had the effect of irreparably undermining the MAC and was said to constitute a failure by the MA to “objectively” consider all available information and records which the MA was required to do.
The appellant then quoted extensively from Ms Hawke’s report of 1 November 2021 stating that her opinion was “categorically” supported by the treating medical records and Mr Fitzgerald’s statements.
The appellant conceded that the MA had referred to those statements but submitted that whilst the MA had noted inconsistencies, he gave no indication as to what they were or how they were addressed.
We were referred to the applicant’s statements of 2 November 2021 and 16 June 2022 in which it was said provided the examples of factors not referenced by the MA. These were said to include:[15]
·        Difficulty with finances (concentration, persistence and pace).
·        Reliance on the spouse for all the facets of correspondence and organisation
(concentration, persistence and pace).
·        Substantive memory difficulties (concentration, persistence and pace).
·        Disengagement broadly from social activities other than minimal specific physical based activities (social and recreational activities).
·        Examples of delusional and violent propensity towards other people (social and
recreational activities, social functioning).
·        Persisting marriage difficulties (social functioning).
[15] Appeal papers page 13.
The MA had accordingly disregarded the requirements of the guidelines as he had not considered “all available medical information and results of investigations.”
The MA had preferred, it was said, “extraordinarily subjective clinical assessment such as his finding that the appellant was able to watch a whole movie.”
It followed the appellant argued that the MA had failed to adhere to the criteria for assessment provide by the guidelines, and he had exhibited decision making outside the scope of the referral pursuit to s 319 of the 1998 Act. The “outright dismissal” of Ms Hawke’s opinion was said to be a “stark example”.

Factual error

We noted earlier that the appellant was particularly concerned about the finding by the MA that he had shown a “upwards trajectory” regarding his symptoms and treatment. It was submitted that the MA’s opinion appeared to be based on the history taken at the time of the assessment and that was accordingly a demonstrable error being “completely contradictory” to the available records.
We were referred to the following alleged factual errors:
(a)     The MA recorded that Mr Fitzgerald was moving on with his vocation, working with Axes, examining roles he could do in the future. The appellant referred to his statement of 16 June 2022 for support, which we have rejected. Whilst the MA mentioned “Axes”, the appellant submitted that only one report from “Axes” Rehabilitation March 2021 was available, and that “vocation rehabilitation was not considered appropriate”.
(b)     The MA’s finding regarding the appellant’s sleep habits was also alleged to contain a factual error. If the evidence were properly considered, Mr Fitzgerald asserted, “along with the medical records,” the MA had “downplayed or disregarded the appellant’s circumstances” and had fallen into error, as we understood the submission, in finding that Mr Fitzgerald had “normal sleep.”
(c)     The MA “substantively” throughout the certificate relied on the appellant’s involvement in coaching, the socialising aspects of which included interacting with parents. This, it was submitted, was an “oversimplification” and it was “so extreme in its misrepresentation such as to raise significant concerns over whether any actual appropriate engagement with the appellant was conducted during the course of the clinical examination”. It was further submitted that it was “well reported” that Mr Fitzgerald managed his symptoms through involvement with physical activity. Coaching was an attempt to mend his relationship with his son, which had been disturbed by the insurer. It was submitted that “this” would have been apparent to the medical assessor (from which we assume the appellant was referring to his physical activity rather than the relationship with his son). In any event it was submitted that “if proper consideration had been given to the records and information available the MA would not have adopted a superficial approach to the assessment”. Again, the appellant’s substantive submissions were dependent to a significant degree on the evidence of his statement of 16 June 2022, which has not been admitted.
(d)     Fourthly it was alleged that the MA placed “extraordinary emphasis” on the ability of Mr Fitzgerald to “watch a whole movie”. It was submitted that Mr Fitzgerald’s ability to watch a movie being interpreted as “good concentration” was “so beyond reasonable as to the be a conclusion that should be rejected out of hand.” It was submitted that the MA had not provided suitable reasons for that statement, as we understood the submission, as watching movies required minimal if any substantive focus and concentration. The appellant observed that the finding by the MA on that basis was either made by an application of factual inaccuracies, or “a complete disregard to the appellant’s own evidence and recorded medical history”. Again, this submission depended on the admissibility of the appellant’s statement of 16 June 2022, which has been rejected.
Thus, it was argued the assessment contained factual errors the nature of which had resulted in an inaccurate WPI assessment. The appellant argued that the assessment was incompatible with the recorded history and evidence of Mr Fitzgerald’s workplace injury.

Respondent’s submissions

With regard to the first ground raised by the appellant – the alleged failure by the MA to consider the relevant information – the respondent submitted that the appellant was being selective in the portions of the MAC that were relied on. A proper examination of the MAC demonstrated, contrary to the appellant’s submission, that the MA’s findings were “not entirely premised on alleged clinical findings.”

The respondent submitted that the MA’s comments about the opinion of Ms Hawke were within power as defined by s 319 of the 1998 Act. A consideration of his comments demonstrated that he did consider Ms Hawke’s evidence, which supported his opinion that there had been gains in Mr Fitzgerald’s treatment and in a range of domains. He expressed reasoned reservations about some aspects of her reports, however. Ms Hawke’s opinion had been considered in the MAC and the MA had not shown an “outright dismissal” of her evidence.
We were referred to another Medical Appeal Panel’s discussion of the function of an MA in Raj v Ark Health Care (Lansdown) Pty Ltd t/as Lansdown Nursing Home[16]. We observe there is High Court authority to the same effect as to the function of an MA.
[16] [2009] NSWWCC MA 201.
The appellant’s submission that the MA had not identified any of the inconsistencies he found in Mr Fitzgerald’s lodged statements was not borne out by the evidence. As an example the respondent referred to the contrast between Mr Fitzgerald’s statement of 2 November 2021 and the history taken at assessment whereby he had told the MA that he was looking for some work, whereas in November 2021 he stated he had no motivation to work.
With regard to the alleged factual errors, particularly the finding that Mr Fitzgerald had shown an “upwards trajectory,” the respondent referred to the MA’s acknowledgement that his assessment was based on the history and assessment on the day of the consultation, objective presentation and documentation provided. It was accordingly incorrect to state that the MA had simply relied on the history taken during the assessment, or that his finding was “completely contradictory to the available records.”
The respondent submitted also that the appellant was incorrect in his submission that the MA had reported that he was having normal sleep. It was normal sleep duration, the respondent said. We were referred to the MA’s comments in that regard.
The respondent submitted that whilst the appellant had made general assertions about the MA’s failure to engage with “records and information available,” Mr Fitzgerald had not engaged with the actual classifications given by the MA under the PIRS.
The respondent further submitted that the classification made by the MA about concentration, persistence and pace was not solely based on his observations about Mr Fitzgerald being able to watch a whole movie, but on further considerations which the MA had referred to in the PIRS.
We were kindly provided with the class 2, 3 and 4 descriptors as set out in Table 11.5 of the Guides and it was submitted that in effect the appellant was only seeking to cavil with the clinical findings of the MA.

DISCUSSION

The MA has delivered an informative and well considered MAC. We disagree with the appellant’s submission that the MA has transgressed against the Guides, whether against Chapter 1.47 or Chapter 11.6.
Chapter 1.47 provides:
"The report should contain factual information based on all available medical information and resulting investigations, the Assessor's own history taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the Assessor's report."
Chapter 11.6 of the Guides provides:
"It is expected that the psychiatrists will provide a rationale for the rating based on the injured worker's psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment but it is not the sole criteria to be used. Clinical assessment of the person may include information from the injured worker's own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests - including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations - may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time..."
As to Chapter 11.6, the submission that these criteria had been incorrectly applied appears to turn a blind eye to the comprehensive survey the MA had conducted of all the relevant evidence before him.[17] We reject the appellant’s submission in that regard.
[17] Appeal papers page 92.
The appellant has said all that could be advanced in furtherance of his case, but his presentation has been hindered by the fact that he did not appreciate that fresh evidence could not simply be lodged before the Appeal Panel. The function of the Panel is to review the MAC. Section 328(2) of the 1998 Act provides:
“(2) 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.”
The review is thus confined to the evidence that was before the MA. If additional or fresh evidence is sought to be relied on, then an application has to be made, as we have explained above.
The appellant’s substantive submissions have accordingly been infected by reliance on the additional evidence, all of which we have rejected for the above reasons.
The thrust of the appellant’s argument was that in effect there had been no improvement in Mr Fitzgerald’s condition since he was seen by Dr Bertucen on 2 June 2021, in the face of the finding by the MA of an “upward trajectory” in that condition. The appellant’s argument maintained that the MA’s finding was “entirely” made on his clinical findings, and the MA’s description of Mr Fitzgerald’s mental state were reproduced in some detail – including, incidentally, that the MA recorded that Mr Fitzgerald became tearful.
The error alleged by the appellant was that the MA criticised the report of psychologist Ms Krista Hawke as being “advocative.” There was some suggestion that such a finding was beyond power, as it somehow offended the provisions of s 319 of the 1998 Act. Just how this was so was not explained, and we reject that assertion. An MA is free to comment on the material before him in any way he chooses. In fact, the MA gave a positive review of Ms Hawke’s input.
The MA was impressed with Ms Hawke’s treatment, and his reference to advocacy was concerned with Ms Hawke’s comments regarding the medico-legal opinion before her. He described her treatment as being “excellent,” but did find that some of her findings were unsupported. The MA gave examples of those findings, such as contrasting the 80 minutes concentration during his assessment with Ms Hawke’s report that Mr Fitzgerald could not concentrate for more than 15 minutes. Ms Hawke’s comments about Mr Fitzgerald’s relationship with his family were not inconsistent with the finding of the MA.
In her report of 1 November 2021, Ms Hawke noted an increased self-awareness, and that the treatment was assisting the appellant to reduce conflict in his family.[18] She also noted that when Mr Fitzgerald was assessed by Dr Bertucen in June 2021, Mr Fitzgerald was probably at the most improved phase of his recovery[19]. She alleged that when Mr Fitzgerald saw Dr Kumar two months later, he had regressed (he saw Dr Kumar on 13 August 2021). However, when she wrote her report, Ms Hawke said:[20]
“…As noted previously in this report, Mr Fitzgerald’s condition is well established with symptoms remaining evidently stable over the last twelve months. If anything, there are certain symptoms that have worsened such as his cognitive functioning and social isolation. Though it is true that some symptoms have improved (re-experiencing phenomenon lessoned (sic) in frequency and intensity) they are still occurring and affecting his ability to perform activities of daily living.”
[18] Appeal papers page 137.
[19] Appeal papers page 138.
[20] Appeal papers page 136.
Bearing in mind the cognitive improvement found by the MA, and Mr Fitzgerald’s active social life, we find no error in the MA’s finding that Mr Fitzgerald’s condition was on an upwards trajectory.
Regardless of the trajectory of the appellants symptoms or impairment, the MA is obliged to assess the worker as he presents on the day. The 80-minute interview gave the psychiatric MA an opportunity to directly observe the injured worker’s metal state, concentration, memory and cognition while seeking clarification of the history and activities of daily living. The MA then is required to draw his own conclusions and, together with all the other information available, determine levels of impairment across the relevant categories. This is what the MA did.
The appellant reproduced passages from Ms Hawke’s report of 1 November 2021 and submitted that the history of the appellant’s impairment and the consequences of his psychiatric disorder found support in both the treating records and the statements of Mr Fitzgerald (including the rejected statement of 16 June 2022).
We have reproduced the six areas which the appellant alleged had been overlooked by the MA in discussing his submissions, above. Contrary to the allegations made, we note:
·        The MA noted Mr Fitzgerald’s difficulties with finances.[21]
·        The MA noted Mr Fitzgerald’s reliance on his wife.[22]
·        The MA noted that Mr Fitzgerald’s substantive memory difficulties had improved over time.[23]
·        The MA noted Mr Fitzgerald’s extensive social activities.[24] He made no factual error in his description.
·        Although it was alleged that Mr Fitzgerald had delusional and violent propensities towards other people, we were not referred to the evidence on which that allegation was based. The MA noted that Mr Fitzgerald could “still” be over-reactive when confronted with anti-social behaviour.
·        As to the allegation that Mr Fitzgerald was suffering marital difficulties, the MA noted that Mr Fitzgerald and his wife have become closer, and regularly have lunch together away from their four children. This allegation, too, was not made out.
[21] Appeal papers page 48.
[22] Appeal papers page 48.
[23] Appeal papers pages 92 and 93.
[24] Appeal papers page 90.
There was no failure by the MA to consider relevant information. Firstly, there is no obligation on an MA to refer to all of the evidence that is referred to him. Secondly, it is now well accepted that the function of an MA is to form and give an opinion on medical questions referred to him by applying his own medical experience and his own medical expertise. He is also required to show his path of reasoning in his explanation.[25] It is well established that an MA has a wide discretion regarding the descriptors given for each class in Chapter 11 of the Guides.[26]
[25] Sydney Local Health District v Chan [2015] NSWSC 1968 at [13] citing Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
[26] Ferguson v State of New South Wales [2017] NSWSC 887.
There is no basis to the appellant’s submission that the provisions of Chapter 1.47 of the Guides have not been complied with. The MA provided a full and searching examination of the medical dispute referred to him. His report did contain factual information based on all the available medical information and resulting investigations, his own history taking and his own clinical examination. The other reports or investigations that were relied upon in arriving at his opinion were appropriately referenced in his report. Indeed it was somewhat difficult to understand the submission that the MA had not properly considered relevant information when the submissions themselves referred to the MA’s comments about Dr Bertucen and Ms Hawke.
Further, the prayer made by the appellant was that “the Certificate warrants review.” There was no attempt by the appellant to relate his general submissions to the actual classifications made by the MA under the PIRS.
The MA explained his assessment quite clearly and in a number of different portions of his MAC. Having reviewed the MAC, and in particular the findings in the PIRS, we find no error.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 May 2022 should be confirmed.

[2023] NSWPICMP 14

19 January 2023