Freeth v Ventia Pty Ltd
[2022] NSWPICMP 425
•26 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Freeth v Ventia Pty Ltd [2022] NSWPICMP 425 |
| APPELLANT: | James George Freeth |
| RESPONDENT: | Ventia Pty Ltd |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Dr John Wynyard |
| MEDICAL ASSESSOR: | Dr Nick Glozier |
| DATE OF DECISION: | 26 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal by worker against class 2 finding for concentration, persistence and pace; whether the Medical Assessor (MA) misunderstood the use of the Duolingo app as meaning the worker was actually studying the German language; whether MA fell into error by not referring to the statement of the worker’s partner; whether MA required to ask specific questions or to refer to all the evidence; Held – appeal rejected; additional evidence regarding the app admitted as an aide memoire; appellant ignored other involvement in online chess and word games being played continuously with other online users; observations on the task of a MA; Bojko v ICM Property Services Pty Ltd and Jones v The Registrar WCC considered regarding presumption of regularity; Western Sydney Local Health District v Chan considered (citing Wingfoot Australia Partners Pty Ltd v Kocak) regarding the task of a MA and the statement of reasons given in a Medical Assessment Certificate (MAC); appeal raised no more than a difference of opinion; Ferguson v State of NSW considered; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 June 2022 James George Freeth, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 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):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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 24 January 2022 an amended referral was made to the MA for an assessment of WPI caused by psychiatric/psychological disorder which occurred on a deemed date of
6 December 2019.Mr Freeth was employed at the time as a watchman/operator, a position he had previously occupied with HMAS Albatross for about 12 years.
He suffered a psychological injury due to his interactions with other people, a culture of “pecking-order bullying” which culminated in an episode where he was forced to eat at his desk as the rostered firefighters who traditionally sat with him during his breaks were no longer willing to do so.
The MA certified 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 did not seek to be re-examined by an MA who was a member of the Appeal Panel.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appeal challenged the class 2 assessment of the category of Concentration, Persistence and Pace within the psychiatric impairment rating scale (PIRS).
The MAC
In a comprehensive and carefully considered MAC, the MA found that in the category of concentration, persistence and pace within the PIRS justified a class 2 evaluation. The MA said[1]:
“He has subjective difficulties with concentration and memory. During a 75-minute interview today, he occasionally needed redirection and was imprecise regarding dates and sequences of events. On the other hand, he has persisted in studying German since his injury and plays online chess and word games for up to an hour a day. Although he usually doesn’t watch television, he sometimes “binge watches” and can do so with reasonable comprehension.”
[1] Appeal papers p 50.
This evaluation was essentially a precis of the MA’s findings in discussing Mr Freeth’s social activities and activities of daily living in the body of his report[2].
[2] Appeal papers p 44.
The MA noted that before becoming unwell Mr Freeth had a limited social life with a few close friends. He enjoyed outings and visiting each other’s homes for meals. With the onset of his condition Mr Freeth would now occasionally go out with Elaine, his partner, or catch up with friends but he did not do so without his partner. He did not enjoy outings as he had lost social confidence. The MA said:[3]
“He is learning German using the Duolingo app, spending about 15 minutes each day. He rarely misses a day and, on checking the app, was able to tell me that he had participated on 758 days since leaving work. He plays online chess and word games.
Currently, he has about ten online chess games going and 15 to 20 word games. These games are played out over time as participants take their turns.
Overall he spends about an hour a day learning German and playing games. He struggles with retaining the new language and said that he finds it more difficult than anticipated.
He used to enjoy reading but has mostly given this up.
He watches ABC News 24 while having his dinner. He usually doesn’t view much television, but occasionally he and Elaine will binge-watch a series.”
[3] Appeal papers p 44.
In his findings on physical examination the MA noted that during the 75 minute interview that Mr Freeth sometimes lost focus and needed redirection. He was imprecise with dates and sequences of events.
The MA found no inconsistencies in Mr Freeth’s presentation. At [10c] is the templated question regarding other medical opinions. The MA noted the opinions of Dr Robert Gertler for the applicant and Dr Bisht for the respondent.
In his discussion of both experts’ opinions the MA explained where his assessment was different to one or other of the specialists. With regard to the category of concentration, persistence and pace the MA said:[4]
“Regarding concentration, persistence and pace, Dr Gertler thought the impairment moderate, while Dr Bisht and I found it to be mild. Dr Gertler:
Has difficulty with concentration and memory such that he is finding it difficult to cope with complex tasks such as learning German.
Mr Freeth has the difficulties described by Dr Gertler. However, learning German is not a simple task, and Mr Freeth has persisted with some success since leaving work, rarely missing a day. He spends about an hour a day on this and Internet-based games. All of these things require attention and concentration.”
SUBMISSIONS
[4] Appeal papers p 47.
The appellant’s submissions were prepared by Mr Bruce McManamey of counsel. He submitted that the MA had not adequately undertaken the task of having regard to the pre-injury level of function. Mr McManamey did not elaborate on that submission beyond contending that the failure to do so was a demonstrable error. He said that examples of this alleged failing were contained in the category that was being challenged.
Mr McManamey cited Ferguson v State of NSW[5], which we shall refer to in due course.
Mr McManamey referred to a number of comments made by the MA and noted particularly the MA’s comments on Dr Gertler’s report.[5] [2017] NSWSC 887.
Mr McManamey submitted that “the MA erred by miscategorising the term ‘studying German’”. Mr McManamey then gave an exposition of Mr Freeth’s involvement with the German language. Mr McManamey advised that Mr Freeth was using an app called “Duo Lingo,” as was noted by the MA.
Mr McManamey advised further details of this particular app - to the extent of including in his submissions an article printed in the New York Times entitled “How to almost learn Italian” which was an article about the Duo Lingo app. Indeed Mr McManamey also included a Messenger chat exert that showed that his instructing solicitor’s son also used the app and that the son was being frequently contacted by the operators of the app. It would appear that the object of Mr McManamey’s submission was to point out that it was a miscategorisation to use the term “studying German”.
Mr McManamey’s opinion was that the app was nothing more than a game constructed in such a way as to become addictive, similar to many other online app games.
Mr McManamey suggested that the use of the app would not achieve any level of fluency in Mr Freeth’s use of the German language. He submitted that the MA “failed to take into account or even ask the outcome of this so called ‘study’. His failure to do so was a clear indication that he was not under any illusions as to what type of activity Mr Freeth was engaging in”.
The weight given by the MA to the use by Mr Freeth of the app was not justified, it was submitted. Mr McManamey explained that Mr Freeth would respond to notifications which would enable Mr Freeth to reconnect at the touch of a button, like many other addictive online games and applications.
Mr McManamey advised that the use of such games did not require focus, persistence or concentration to “have a turn”.
Mr McManamey also submitted that there was some contradiction in the findings by the MA. He submitted that the finding that Mr Freeth would spend a combined total of one hour per day needed to be considered in the light of the history taken that Mr Freeth would only spend a few minutes at a time on each task.
Mr McManamey then referred to a statement from Mr Freeth’s partner Elaine Franziska.
Ms Franziska’s statement contained “important evidence” regarding concentration by
Mr Freeth it was submitted. He referred to various matters mentioned by Mr Franziska and said that her evidence was persuasive of a class 3 evaluation.Mr McManamey submitted that because the MA did not mention Ms Franziska’s evidence that therefore he failed to consider it or consider it adequately, which constituted a demonstrable error.
Mr McManamey referred to the descriptors for a class 3 evaluation and submitted that the evidence showed that a class 3 value was more appropriate. He said the inconsistency between the class 2 descriptors and the evidence was more than a simple matter of clinical judgment. The MA, Mr McManamey asserted, had failed to consider “critical evidence” and his findings were “simply incompatible” with the class 2 assessment. In fact, Mr McManamey said the assessment should have been a class 3 “if not class 4”.
Mr McManamey then returned to advising us about the function of the Duo Lingo app. He adopted his own assumption by attributing to the MA an inference that Mr Freeth was learning German in a classroom setting.
Mr McManamey again submitted that if the MA had asked “relevant questions” of Mr Freeth, this assumption would have been shown to have been incorrect.
Mr McManamey also cavilled with the MA’s statement that Mr Freeth had “some success”. That statement did not find any support in the MA’s finding that Mr Freeth “struggles with retaining a new language and said that he finds it more difficult that anticipated”.
The evidence showed that the appellant was more appropriately suited to a class 3. He submitted that the MA had demonstrated “a clear misunderstanding and adopted an unsupportable reasoning process to conclude that the appropriate PIRS classification .…was class 2”.
The appellant lodged supplementary submissions regarding the evidence referred to by
Mr McManamey, specifically the Messenger chat notifications to Max Legzdin, the appellant’s solicitor’s son, in the form of a screenshot from his mobile phone, and the article referred to by Mr McManamey, “How to almost learn Italian,” by journalist David H Freeman. Leave was sought to introduce that evidence pursuant to s 328(3) of the 1998 Act.
Respondent
We have largely adopted the submissions by the respondent, and there is no purpose in outlining them twice.
DISCUSSION
The additional evidence is admitted. We note the respondent’s objections, but we apprehend that the purpose of the application was that the evidence be used as an aide memoire. The screenshot and the article were an intrinsic part of Mr McManamey’s argument, and the accuracy of Mr McManamey’s quotations therefrom was not challenged. (We would note in passing that the article in the New York Times at its most relevant demonstrated that a journalist from that organisation found it difficult to learn Italian using the Duo Lingo app).
Mr McManamey referred to Ferguson in his submissions, and the well known finding by Campbell J that an appellant must show more than a mere difference of opinion on a subject about which reasonable minds might differ, to establish error in the statutory sense.[6] Whilst Mr McManamey has said all that could be said in furtherance of Mr Freeth’s case, we are not persuaded that Mr McManamey has succeeded in demonstrating any more than such a difference of opinion.
[6] At [23].
Firstly, the emphasis on Mr Freeth’s use of the Duo Lingo app is misconceived. The MA did not base his assessment only on Mr Freeth’s interaction with the Duo Lingo app. The history taken that Mr Freeth also played online chess and word games was not challenged, neither was Mr Freeth’s statement that he had participated in the Duo Lingo app on 758 days since leaving work. Mr Freeth admitted to the capacity to watch ABC News 24 every night over dinner, and that he and Ms Franziska would occasionally binge-watch series with reasonable comprehension. We would observe that the capacity to play 10 games of chess and 15-20 word games simultaneously, albeit over a period of time, show quite an impressive cognitive sensibility.
Secondly, the MA noted during the 75 minute assessment that Mr Freeth sometimes lost focus, and needed redirection. The MA also noted that Mr Freeth was imprecise with dates and sequences of events. These observations demonstrated that the MA balanced the activities admitted by Mr Freeth with an objective clinical assessment of Mr Freeth’s concentration and perception.
Thirdly, Mr McManamey submitted that the MA had “miscategorised” the term “studying German,” and assumed that the MA inferred that Mr Freeth was actually attending lectures etc. There is no basis for Mr McManamey’s assumption. The MA was simply reporting when he took this history what the appellant was telling him, which was not that he was “studying German,” but that he was “learning German”. Dr Gertler also used the expressions “learning German,” “German lessons,” “trying to follow lessons in German”. Dr Bisht too recorded that he was told the appellant was “trying to learn German”. It follows that the MA made no mistake of fact, as was the import of the submission. This appeared to be the way Mr Freeth described his use of the app to all the experts. We found no contradiction or misunderstanding in his findings. The use of the term “studying German” in the PIRS must be read in the context of the history taken in the body of his report under “Social activities/ADL”.[7]
[7] At appeal papers p 44.
Further, the appellant’s submission that the MA failed to adequately discuss his success or lack of same in his use of the app has no basis in fact. The conversations between an examining assessor and claimant are not recorded, and it may well be that the MA did ask further questions. The appellant did not refer to any evidence that supported his submission, and it appeared to be based on the proposition that if no conversation were recorded, it must not have happened – a proposition must be rejected as being highly speculative, particularly when it is apparent that there was discussion of the app in any event.
Similarly, the criticism that the MA failed to consider Ms Franziska’s evidence must be rejected. The appellant submitted that “the only conclusion” available in the absence of any mention by the MA of Ms Franziska’s statement was that he had not read it either adequately or at all. This submission overlooked the presumption of regularity which attends administrative action. An MA performs such action, and it may be presumed that he/she would read the evidence that was referred as part of the remit.[8] A presumption of course may be rebutted, but the speculative nature of this submission does not have that effect. An MA is under no obligation to refer to evidence that he does not regard as relevant to his determination.
[8] See Bojko v ICM Property Services Pty Ltd [2009] NSWCA 175 at [36] per Handley AJA: Jones v The Registrar WCC [2010] NSWSC 481 per James J (as he then was) at [36]: Parker v Hitachi Construction Machinery (Australia) Pty Ltd [2020] NSWWCCMA 116 at [53].
Neither is there any obligation on an MA to refer to all the evidence before him. His/her task is to form and to give his/her own opinion on the medical question referred by applying his/her own medical experience and his/her own medical expertise.[9] Moreover, the reasons given do not need to be extensive, especially where there is no dispute of fact[10].
Mr McManamey contended that the MA was bound to refer to the statement of Ms Franzisca, but her evidence did no more than confirm in general terms the effect that Mr Freeth’s injury had caused in his life. It did not impinge on the detail of Mr Freeth’s activities as discussed between the MA and Mr Freeth, and was not “highly relevant,” as Mr McManamey contended. An MA is required to set out a statement of reasons to accompany the certificate showing the actual path of reasoning by which he/she arrived at his/her opinion he/she formed for him/herself. As we have said, the MA’s reasons were thorough and well explained.[9] See Western Sydney Local Health District v Chan [2015] NSWSC 1968 @ [13], citing the well-known High Court decision of Wingfoot.
[10] See Vegan, cited above.
The class 2 assessment was explained in the PIRS as follows, to repeat:
“He has subjective difficulties with concentration and memory. During a 75-minute interview today, he occasionally needed redirection and was imprecise regarding dates and sequences of events. On the other hand, he has persisted in studying German since his injury and plays online chess and word games for up to an hour a day. Although he usually doesn’t watch television, he sometimes “binge watches” and can do so with reasonable comprehension.”
Table 11.5 of the Guides provides the descriptors for classes 2, 3 and 4:
“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.
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.
Class 4 Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.”
The Class 2 finding was open to the MA. There was no glaring error or misunderstanding shown in his reasons, and the appeal is accordingly rejected.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 May 2022 should be confirmed.
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