Football NSW Limited v Gonzalez
[2022] NSWPICMP 257
•20 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Football NSW Limited v Gonzalez [2022] NSWPICMP 257 |
| APPELLANT: | Football NSW Limited |
| RESPONDENT: | Oscar Gonzales |
| APPEAL PANEL: | |
MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Julian Parmegiani |
| DATE OF DECISION: | 20 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Respondent worker sustained primary psychological injury deemed to have occurred on 1 May 2016; Held– appeal panel concluded that the Medical Assessor erred not providing sufficient reasons for in rating Mr Gonzales as class 3 for concentration, persistence and pace; worker re-examined; Medical Assessment Panel (MAP) revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 December 2021 Football NSW Limited (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Samson Roberts, Medical Assessor (the MA) and issued on 16 November 2021.
The respondent to the appeal is Oscar Gonzales (Mr Gonzales).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Gonzales developed a primary psychological injury in the course of his employment with the appellant as a community coach and development manager.
On 29 September 2021, Mr Gonzales commenced proceedings in the Commission claiming 17% 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 1 May 2016.
The matter was referred to the MA, on 19 October 2021 for assessment of WPI of
Mr Gonzales’ psychological injury deemed to have occurred on 1 May 2016.The MA examined Mr Gonzales on 27 October 2021 through video link. The MA assessed 15% WPI as a result of the injury deemed to have occurred on 1 May 2016.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that Mr Gonzales be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Mr Gonzales to undergo a further medical examination because there was insufficient evidence on which to make a determination.
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.
Further medical examination
Dr Douglas Andrews of the Appeal Panel conducted an examination of Mr Gonzales on 23 May 2022 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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) the MA failed to correctly follow the Guidelines and failed to appropriately consider the entirety of the evidence before him in respect to the Psychiatric Impairment Rating Scale (PIRS) ratings;
(b) the MA took into account an irrelevant consideration in assessing Concentration, Persistence and Pace, in that he incorrectly considered Mr Gonzales’ level of participation in activities which were relevant to the Social and Recreational Activities scale and were considered by the MA in assessing that rating scale;
(c) in those circumstances, the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error;
(d) in respect to Concentration, Persistence and Pace, the MA assessed Mr Gonzales as Class 3, noting at page 9,
“reported sufficient impairment with respect to his ability to concentration that he is intending to withdraw from tertiary studies. He described difficulty with respect to concentration that he cannot watch a movie. No overt impairment of concentration was apparent at interview. His level of participation in activities is limited and he did not report engaging with persistence or pace. Overall, his account of functioning in this area reflected moderate impairment”;
(e) the MA failed to appropriately consider the evidence before him, and gave greater weight to Mr Gonzales’ subjective, and occasionally inconsistent reporting, in arriving at the PIRS rating for the category of Concentration, Persistence and Pace;
(f) due to the MA failing to appropriately consider the entirety of the evidence before him he erred in his assessment of Mr Gonzales under the relevant PIRS category of Concentration, Persistence and Pace;
(g) in addressing Concentration, Persistence and Pace on the basis of the other evidence on file and Mr Gonzales’ self-reporting, the MA noted at page 4 of the MAC that Mr Gonzales
“was also engaging in tertiary studies but he intended to take a leave of absence”. At page 5, the MA noted Mr Gonzales’ “intention to take a leave of absence from his PhD studies. His concentration is sufficiently poor that he cannot read satisfactorily, and he is unable to recall what he reads. This has undermined his ability to study and it undermines his ability to watch movies”;
(h) Mr Gonzales notified an intention to defer or take a leave of absence from his studies since July 2021 when he reported same to Dr Assad Saboor. The evidence before the MA indicated that Mr Gonzales was still engaged in his PhD course. Despite reporting an intention to defer or take a leave of absence since July 2021, there was no evidence Mr Gonzales had withdrawn or taken a leave of absence;
(i) in considering the issue of Concentration, Persistence and Pace, the MA did not appear to have considered the extent of the tertiary education being undertaken by Mr Gonzales, being of postgraduate level, with Mr Gonzales continuing in his PhD course subsequent to the work injury;
(j) the MA took into account an irrelevant consideration when assessing Mr Gonzales under the scale of Concentration, Persistence and Pace. The MA noted at page 9, Mr Gonzales’ “…level of participation in activities is limited…” which was relevant only to the rating scale of Social and Recreational Activities; (Moelker v State of New South Wales (Ambulance Service of New South Wales) [2021] NSWPICMP 202 at [94];
(k) the MA failed to take into account Mr Gonzales’ ability to concentrate on assessment. Despite the MA noting under the scale of Concentration, Persistence and Pace at page 9 “No overt impairment of concentration was apparent at interview”, there was no indication the MA had taken into account this presentation when considering the assessment under the scale of Concentration, Persistence and Pace;
(l) an assessment by an MA allows the MA an opportunity to evaluate the worker’s concentration during a lengthy interview. The MA had the opportunity to evaluate Mr Gonzales’ capacity to process information, understand the assessor’s questions, formulate answers, provide a comprehensive history, and maintain focus on topics being discussed. A face-to-face interview of this length provided a powerful tool for assessing Concentration, Persistence and Pace;
(m) the evidence before the MA indicates that Mr Gonzales had undertaken and was currently undertaking a PhD course. The evidence before the MA also confirmed Mr Gonzales demonstrated no overt impairment of concentration. That evidence indicated Mr Gonzales could at least undertake a basic retraining course, or a standard course at a slower pace, could focus on intellectually demanding task for periods of up to 30 minutes which satisfied the category of Class 2 in respect of Concentration, Persistence and Pace;
(n) on taking into account the issues, Mr Gonzales would be more appropriately considered Class 2, mildly impaired in respect to Concentration, Persistence and Pace, and
(o) accordingly, the PIRS rating in Concentration, Persistence and Pace from the MA was based on incorrect criteria and evidence demonstrable error.
Mr Gonzales’ submissions include the following:
(a) when seen by the MA, Mr Gonzales reported impairment of concentration and said that his propensity to agitation and impatience were factors that he perceived as sufficiently severe so as to undermine his capacity for work. Mr Gonzales said that he intended to take a leave of absence from his PhD studies. His concentration was sufficiently poor that he could not read satisfactorily and was unable to recall what he reads. The MA carried out a physical examination and said that in making his assessment, he took into account the history, presentation on mental state examination and contents of documents. He expressly considered the reports of Dr Hong, Dr Rastogi and Dr Sapoor;
(b) the MA assessed Concentration, Persistence and Pace as Class 3. He said
“Mr Gonzalez reports sufficient impairment with respect to his ability to concentrate and is intending to withdraw from tertiary studies. He describes sufficient difficulty with respect to concentration and he cannot watch a movie. No overt impairment of concentration was apparent in interviews. His level of participation in activities is limited and he did not report engaging with persistence or pace. Overall, his account of functioning in this area reflected a moderate impairment”;
(c) in Jenkins v Ambulance Service of NSW [2015] NSWSC 633, Garling J considered the question of the assessment of a class within a PIRS category and rejected a submission that when assigning a class of impairment to each scale, the Approved Medical Specialist (AMS) was restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum. Garling J stressed the importance of clinical assessment and judgment, both of which were required in formulating an opinion. He observed that the descriptors were examples only and it was necessary to consider the individual’s activities that were usual for the person’s age, sex and cultural norms. He observed that the boundaries between the classes are not of themselves bright line boundaries;
(d) in this case, the MA exercised his clinical judgment when assessing Concentration, Persistence and Pace. He identified the restrictions within that category and took into account the history, the presentation on mental state examination and the documentary material provided to him in reaching his conclusion. The appellant is merely cavilling with a matter of clinical judgment. Those matters do not make out a demonstrable error;
(e) Mr Gonzales told Dr Saboor in July 2021 that he intended to defer or take a leave of absence from his studies. Mr Gonzales gave the same history to the MA three months later. The appellant said that the evidence before the MA indicated that Mr Gonzales was still engaged in his PhD course. The MA did not say that Mr Gonzales had withdrawn from his studies so there was no factual error. The evidence was that he was still experiencing difficulty with concentration and still intended to take leave from his studies. The fact that he had held his intention for some time was merely an indication of the extent to which Mr Gonzales is now immobilised by his psychological condition. In any event, the MA did not make a factual error and was entitled to accept that Mr Gonzales was having difficulty from his studies and intended to withdraw from them;
(f) the appellant argued that the MA had taken into account an irrelevant consideration because he had noted that Mr Gonzales’ level of participation in activities was limited and this was a matter that should have only been taken into account in the category of Social and Recreational Activities. No explanation was given as to why this would be the case. Other than the heading for each part of the table, the Guidelines do not contain a definition of each category. The detail can only be discerned from the examples within the classes;
(g) the class of Social and Recreational Activities is limited to a particular type of activity. There are many activities that a person may engage in which would not be described as either recreational or social. An examination of the descriptors show that the limitation is not one which is associated with impairment of concentration, persistence or pace. The deficit being considered within the category of Social and Recreational Activities is the capacity to socialise with other people;
(h) for example, a moderate impairment exists where the person rarely goes out to sporting or recreational events and mostly does so when prompted by family or close friends. That descriptor has no relevance to whether a person can concentrate, read or follow complex instructions. Accordingly, if the assessment is looking to the person’s ability to concentrate and follow matters in a wide range of activities, it is not a matter that falls within Social and Recreational Activities;
(i) when making his assessment, the MA did not refer to Social or Recreational Activities when considering Concentration, Persistence and Pace. He spoke about activities generally. The MA appreciated the difference between the two categories. This can be seen by the descriptors that were used when assessing Social and Recreational Activities as a moderate impairment, and
(j) the appellant has not identified any irrelevant consideration on the part of the MA. Overall, the MA has applied his clinical judgment, together with the history to reach a conclusion that there was a moderate impairment of Concentration, Persistence and Pace. That conclusion was open to him and disclosed no error. The appeal should be dismissed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
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] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘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.
The Medical Assessment Certificate
On page 3 of the MAC under “Present symptoms”, the MA wrote:
“Mr Gonzalez in describing his emotional state, reported an ‘odd empty feeling’. He spoke of his distress at being compelled to sell assets to maintain his financial commitments. In further describing his state of mind, he acknowledged impatience, irritability and a depressed mood. He reported low motivation and insomnia. He described inconsistent levels of energy. He is often apathetic. His appetite is very variable. He was overtly reluctant to acknowledge that he had experienced suicidal thoughts.
When asked regarding his ability to enjoy activities, Mr Gonzalez described feeling happy in the company of his daughter and having enjoyed taking his twin niece and nephew out but otherwise he acknowledged his inability to derive enjoyment from activities.
Mr Gonzalez reported impairment of concentration, his propensity to agitation and his impatience as factors that he perceived were sufficiently severe as to undermine his capacity for work. He expressed the opinion that his condition has remained unchanged for the past six to twelve months.”
Under “Psychosocial history” the MA noted that Mr Gonzales was also engaging in tertiary studies but he intended to take a leave of absence.
Under “Social activities/ADL” the MA wrote:
“Mr Gonzalez was engaged in limited part-time work at the time of the assessment. He referred to it as ‘school work’ He had undertaken a role at a behavioural school as a learning support teacher. He had also been asked to provide guidance to Football Australia. His total work obligations at the time of the assessment amounted to four to eight hours per week. He expressed his intention to take a leave of absence from his PhD studies. His concentration is sufficiently poor that he cannot read satisfactorily and he is unable to recall what he reads. This has undermined his ability to study and it undermines his ability to watch movies”.
Under “Findings on physical examination” the MA noted: “He participated effectively in a lengthy interview without demonstrating overt concentration deficits or impairment of memory”.
At 10(a) of the MAC under “Reasons for Assessment” the MA noted that in making his assessment he had taken into account the history, presentation on mental state examination and contents of documents.
Discussion
The MA 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 MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
PIRS categories
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 material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
The MA assessed Mr Gonzales as Class 3 for Concentration, Persistence and Pace.
Concentration, Persistence and Pace
Paragraph 11.12 of the Guidelines 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.”
The classes of each PIRS category are allocated a descriptor. These descriptors are to be determined comparable to the clinical norms considering the person’s age, sex and culture. The associated examples are provided as guides and are not determinative.
The examples under Table 11.5 for “Concentration, Persistence and Pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache”.
The examples for class 3 are:
“Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In the PIRS Rating Form, the MA wrote:
“Concentration, Persistence and Pace - Class 3
Mr Gonzalez reported sufficient impairment with respect to his ability to concentrate that he is intending to withdraw from tertiary studies. He described sufficient difficulty with respect to concentration that he cannot watch a movie. No overt impairment of concentration was apparent at interview. His level of participation in activities is limited and he did not report engaging with persistence or pace. Overall, his account of functioning in this area reflected moderate impairment”.
The appellant submitted that the MA took into account an irrelevant consideration in assessing Concentration, Persistence and Pace, in that he incorrectly considered Mr Gonzales’ level of participation in activities which were relevant to the Social and Recreational Activities scale and were considered by the MA in assessing that rating scale.
The examples in the Guidelines under Table 11.2 for “Social and Recreational Activities” in the Guidelines are:
“Class 2: Mild impairment: Occasionally goes out to such events without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3: Rarely goes 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”.
In the PIRS Rating Form, the MA wrote:
“Social and Recreational Activities - Class 3
Mr Gonzalez did not report participating in any social or recreational activities but took his niece and nephew out recently and aspects of the part-time work role entail a level of engagement with others that could be considered analogous with social interaction. He spoke of his efforts to maintain physical exercise but this has been sporadic. Overall, his account reflects moderate impairment in this area.”.
The Appeal Panel considered that activities such as study and watching a movie could be taken into account in considering a rating for Concentration, Persistence and Pace if they had not been considered in the assessment of social and recreational activities. The MA in assessing Social and Recreational Activities took into account activities such as taking out his niece and nephew, aspects of part-time work role which entailed a level of engagement with others and sporadic efforts to maintain physical exercise. The Appeal Panel was not persuaded that the MA incorrectly considered participation in activities relevant to Social and Recreational Activities in his assessment of Concentration, Persistence and Pace.
Further the appellant argued that the MA gave greater weight to Mr Gonzales’ subjective, and occasionally inconsistent reporting in the assessment of Concentration, Persistence and Pace and failed to appropriately consider the entirety of the evidence before him in this category. In particular, the appellant referred to Mr Gonzales having undertaken and still undertaking a PhD course and the lack of evidence of any overt impairment of concentration.
The appellant argued that the evidence indicated Mr Gonzales could at least undertake a basic retraining course, or a standard course at a slower pace, could focus on intellectually demanding task for periods of up to 30 minutes”, which satisfied the category of Class 2, in respect of Concentration, Persistence and Pace.
In his supplementary statement dated 28 September 2021, Mr Gonzales wrote:
“I have also withdrawn from my PhD course as concentrating on my studies has been increasingly challenging. I am no longer able to concentrate or complete tasks within timeframes.”
In the MAC, issued on 16 November 2021 following the MA’s examination of Mr Gonzales on 27 October 2021, the MA noted that at the time of assessment Mr Gonzales was participating in limited employment and engaging in tertiary studies but intended to take a leave of absence. In the PIRS Rating Form, the MA noted that Mr Gonzales reported sufficient problems with his ability to concentrate that he was intending to withdraw from tertiary studies.
Dr Michael Hong in his report dated 31 March 2021 noted that Mr Gonzales reported experiencing a reduction in his concentration and memory. Dr Hong wrote:
“He started a PhD through the University of Wollongong, and is in the second year now. He said it is challenging to do the study, and he is trying to come up with a research proposal around resilience and activity in sports.
…
I asked him about the PhD. He told me the semester finished last week and he tries to do a couple of hours a day. He said he had an involuntary redundancy in February. He is not sure what he'll do now after the PhD. He was hoping to have his PhD done in 2 years but now doesn't know”.
Dr Hong assessed Mr Gonzales as Class 2 for Concentration, Persistence and Pace noting “Mr Gonzales reported having mildly reduced concentration and takes ‘more breaks’ when studying his PhD.”
Dr Cameron reported that he had a discussion with Dr Norrie, nominated treating doctor, who said that Mr Gonzales was trying to do a PhD but was not focused.
In a report dated 12 July 2021, Dr Assad Saboor noted:
“He was also studying his PhD. He stated that he was struggling with his studying reading research articles and was behind in his work. He has asked for an extension and was planning to defer one semester”.
Dr Saboor assessed Mr Gonzales as Class 2 for Concentration, Persistence and Pace noting “he has been studying for his PhD, however, he has some difficulties finishing his assignments. He has requested extensions and is deferring his course because he is struggling with his studies.”
Dr Saboor proved a supplementary report dated 2 August 2021 following a file review. A further report dated 25 August 2021 contained an assessment of permanent impairment and Dr Saboor rated Mr Gonzales as Class 2 for Concentration, Persistence and Pace and provided the same reasons as those given in his earlier report dated 12 July 2021.
Dr Gregory Cameron, Injury Management Consultant Occupational Medicine, in a report dated 14 June 2021 noted that Mr Gonzales was studying for a PhD. Present symptoms included “concentration – poor, applying for extensions, does not watch TV” and “Memory – OK, forgets names.” Dr Cameron asked Mr Gonzales about the PhD and wrote:
“He told me the semester finished last week and he tries to do a couple of hours a day. He said he had an involuntary redundancy in February. He is not sure what he'll do now after the PhD. He was hoping to have his PhD done in 2 years but now doesn't know”.
Dr Cameron noted that he had a discussion with Dr Norrie, nominated treating doctor, who said that Mr Gonzales was trying to do a PHD but was not focused.
The Appeal Panel noted that there were inconsistencies in relation to the PhD studies between the MA’s history of Mr Gonzales intending to take a leave of absence from PhD studies and Mr Gonzales’ statement dated 28 September 2021 in which he said he had withdrawn from his PhD course. The MA made no reference to this statement. Further, the Appeal Panel considered that there was a significant difference between studying for and completing a PhD program and the undertaking and completing a basic retraining course. Because of the inconsistencies concerning whether or not Mr Gonzales was continuing with his PhD, the ratings by the Independent Medical Examiners (IMEs) and the mental health examination by the MA, the Appeal Panel concluded that the MA erred not providing sufficient reasons for in rating Mr Gonzales as Class 3 for Concentration, Persistence and Pace.
The Appeal Panel concluded that it was necessary for Mr Gonzales to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Dr Douglas Andrews re-examined Mr Gonzales on 23 May 2022. Dr Andrews provided the following report:
“1. The worker's medical history where it differs from previous records
The medical history that I obtained today regarding Mr Gonzalez is no different from that obtained by the medical assessor, Dr Roberts.
2. Additional history since the original Medical Assessment Certificate was performed
Current circumstances:
Mr Gonzalez lives in a caravan park with his partner of 14 years, Elizabeth, his
13-year-old daughter and her 16-year-old son.Since January 2022, he has been working full-time for Football Australia (note that he had previously worked for Football NSW), directing the Coaching Education Department, a similar role to that he held for Football NSW. Based in Sydney, he has responsibility for planning, curriculum & program development and liaison with other organisations. He will be required to travel, but this has so far been unnecessary. He usually works from home but attends the office every Thursday.
Mr Gonzalez's condition has been stable since his last assessment. There is also no evidence that his condition changed appreciably between 31 March 2021, when he was first assessed by IME psychiatrist Dr Michael Hong and 16 November 2021, when he was evaluated by the MA, Dr Samson Roberts.
Mr Gonzalez has stopped taking all medication. He had been on sertraline but found it unhelpful.
His care is with his general practitioner, Dr Philip Norrie. He no longer sees a psychologist or psychiatrist.
Current symptoms:
His mood is often low and reactive to circumstances; he describes a sense of numbness or ‘nothingness.’ Some days, he feels better and can feel positive emotions; for example, he may enjoy time with his daughter.
Every three weeks, he has bouts of somatic symptoms associated with his anxiety: trembling, tachycardia and distress.
He is irritable and prone to anger. He describes being intolerant of others.
He has had thoughts of suicide without specific plans or intent.
He has significant sleep difficulties with variable latency. He will sleep between 10 PM and midnight and get up around 5 AM. He often wakes through the night, gets up, and does work such as looking at emails. Sometimes he has vivid distressing dreams.
He is often hungry and has gained about 8 kg since leaving Football NSW.
I agree with the diagnosis of the MA, that of a major depressive disorder with anxious distress.
Social activities/ADL:
Mr Gonzalez wakes at about 5 AM and sometimes goes for a walk before breakfast before starting work. He assists with housework, although most of this is done by his partner and daughter.
He eats a diet of easily prepared foods such as cereals, toast or sandwiches. He does not cook meals, and the family do not share meals.
He showers most days but is not concerned about his appearance. He often doesn't bother to shave.
Before becoming unwell, he had an active social life. He enjoyed having people at his home and would have meals with friends on most weekends. He had a good social network relating to football and his work and played over 45s rugby with a group of close friends. He enjoyed travel, including internationally, with family.
He has given up these previously enjoyed activities. He no longer sees friends, saying, ‘I don't have any.’ He attends his daughter's football games without interacting with other parents.
He is comfortable with local and more distant travel. His work has signalled that he will soon need to travel to Adelaide and Melbourne. He said that he would choose to drive because he didn't want to be close to others, as he would need to be on an aeroplane.
His relationship with Elizabeth is strained; they frequently argue without escalation into domestic violence. In May 2021, Elizabeth asked that he leave the family home, but this did not happen because he refused, having no else to go. He sleeps on the couch, and they do not share family meals.
His relationship with his daughter is intact, but he feels more emotionally distant from his stepson.
He has regular contact with a younger brother.
He has lost contact with friends.
Mr Gonzalez is still enrolled in the PhD program at the University of Wollongong. He recommenced study this year but has taken a leave of absence because he struggled to engage. He is concerned that the University will not allow him to continue.
Reading the technical papers and the books required for his PhD is challenging. He skims articles on the Internet and does not read books for entertainment. However, he reads as needed for his work, keeping up with his field to effectively contribute in meetings. He compared his reading to what a medical professional might do to maintain currency.
He watches television in the evening but is frequently distracted and may not follow the narrative.
Assessment of impairment:
I have reviewed all six categories on the psychiatric impairment rating scale.
Self-care and personal hygiene: Class 2
Mr Gonzalez attends to hygiene, showering most days and wearing clean clothes. He is less attentive to personal appearance. He is exercising less and eating a poor quality diet, resulting in a weight gain of about 8 kg, and he is now overweight. While he does some housework, he leaves most of this to his partner and daughter. He prepares his meals, choosing easy to prepare and simple meals.
Social and recreational activities: class 3
He has given up previously enjoyed activities such as social gatherings with friends and over 45s football. He no longer sees friends and does not engage in family celebrations or have other social activities with his partner or family. He may watch his daughter play football but doesn't engage with other parents.
Travel: Class 1
He is comfortable travelling locally and further afield.
Social functioning: Class 3
His relationship with his partner is severely strained. They frequently argue, but there has been no domestic violence. His partner has asked him to leave the family, but he refuses because he feels that he has nowhere else to go and cannot afford to establish himself. He sleeps on the living room couch. He continues to care for his daughter, although, as a young adolescent, she is independent in most aspects of self-care. He maintains contact with his brother. He has disengaged from friends and is distant from colleagues.
Concentration, persistence and pace: Class 2
Mr Gonzalez attempted to reengage with his PhD program earlier this year. He found himself unable to meet the demands and has taken a leave of absence. He is concerned that the University will ask him to withdraw. He was struggling to read technical articles and books relating to his PhD.
He is succeeding in work-related tasks such as planning and curriculum development, and he is heading up a significant project setting up an IT portal for coaching education. He reads little for pleasure, limiting himself to skimming online articles. He doesn't engage with television shows, although they are often on. He has no projects or hobbies.
Employability: Class 2
Mr Gonzalez is working full-time in a role for Football Australia, much as he had at Football NSW. The job requires comparable skill and intellect to his pre-injury career. However, he cannot work in his old environment. He is less able to engage with work colleagues because of his irritability and reduced tolerance of others.
Comment:
My class ratings agree with the MA, Dr Roberts, in all categories except concentration, persistence &, pace, and employability.
The MA had determined a moderate impairment for concentration, persistence and pace, whereas I thought it mild. Dr Roberts wrote:
Mr Gonzalez reported sufficient impairment with respect to his ability to concentrate that he is intending to withdraw from tertiary studies. He described sufficient difficulty with respect to concentration that he cannot watch a movie. No overt impairment of concentration was apparent at interview. His level of participation in activities is limited and he did not report engaging with persistence or pace. Overall, his account of functioning in this area reflected moderate impairment.
Engagement with and completing a PhD program requires far more than undertaking and completing a basic retraining course. Mr Gonzalez has been unable to continue with study at this level, but he produces curriculum material for coaching, participates in senior-level meetings, and guides others in their work. He has subjective difficulties limiting his engagement with reading and watching television for pleasure, but he reads as necessary to keep current with his profession. He showed no evidence of any cognitive difficulty or distraction during my assessment.
The MA also found a moderate impairment for employability, whereas I considered it mild. Dr Roberts noted:
Mr Gonzalez reported participating in four to eight hours of work per week at a level of employment lower than that demanded by his previous role. His account indicated satisfactory engagement in the limited work in which he has participated such that it could not be considered that he was performing in a way reflective of reduced pace or erratic attendance. His engagement in employment reflected moderate impairment in this area.
Mr Gonzalez's situation has changed since the assessment of the MA. He worked as a teaching assistant 48 hours a week but is now working full-time in a role very similar to that that he left with Football NSW. He cannot work in the same workplace, even if there were work available, and is functioning less well in his workplace relationships, a necessary component of his employment.
Mr Gonzalez's current impairment is as follows:
· Self-care and personal hygiene: Class 2
· Social and recreational activities: Class 3
· Travel: Class 1
· Social functioning: Class 3
· Concentration, persistence and pace: Class 2
· Employability: Class 2
Median score – 2
Aggregate score – 13
Whole person impairment – 7%
3. Findings on clinical examination
I examined Mr Gonzalez in his home by video link. The connection quality was excellent, allowing me to do a comprehensive assessment.
He presented casually attired, with close-cropped hair and was unshaven.
His demeanour was irritable, and he expressed intolerance of others. His mood was depressed and anxious. His affect was restricted, consistent with his mood and coherent with the content of the interview.
There was no evidence of disorder of perception or thought-form.
Today, Mr Gonzalez focused and provided a comprehensive and coherent account during my 60-minute assessment.
When asked about suicidality, he briefly lost his composure.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations were done.”
The Appeal Panel has adopted the report and findings of Dr Andrews.
The Appeal Panel concluded that Mr Gonzales’ impairment in the PIRS classes of Self-Care and Personal Hygiene, Social and Recreational Activities, Travel, and Social Functioning were the same as assessed by the MA. In terms of Concentration, Persistence and Pace the Appeal Panel concluded that the impairment attributable to his psychiatric injury was a Class 2 – mild. The MA had assessed this as Class 3 but failed to take into account that engagement with and completing a PhD program required far more than undertaking and completing a basic retraining course. In terms of Employability, the Appeal Panel concluded that the impairment attributable to his primary psychiatric injuries was a Class 2 – mild. The MA had assessed this as Class 3 but Mr Gonzalez's situation had changed since the assessment of the MA and he now worked in full-time in a role very similar to that that he left with Football NSW.
The MA made an assessment of 15% WPI in respect of a psychological injury. The Appeal Panel has made the same ratings in respect of the scale for Self-Care and Personal Hygiene, Social and Recreational Activities, Travel, and Social Functioning as the MA. However, the Appeal Panel has made a rating of 2 in the scale of Concentration Persistence and Pace and a rating of 2 in the scale for Employability. Therefore, the assessment of total WPI by the Appeal Panel is 7% WPI in respect of the injury deemed to have occurred on I May 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 July 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W4794/21 |
Applicant: | Oscar Gonzales |
Respondent: | Football NSW Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Ash Takyar and issues this new Medical Assessment Certificate as to the matters set out in the Table below.
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Primary Psychological injury | 1 May 2016 (deemed) | Chapter 11 | Not applicable | 7% | Nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% WPI | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0
6
0