Gooden v Secretary, Department of Education
[2024] NSWPICMP 769
•12 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gooden v Secretary, Department of Education [2024] NSWPICMP 769 |
| APPELLANT: | Janice Gooden |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 12 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; medical appeal; challenge to psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene and concentration, persistence and pace; Medical Assessor took into account findings made on memory tests; factors outside of the criteria for that PIRS; class 3 correct on evidence; no error found in assessment of self-care; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 July 2024 Ms Gooden, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 July 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The procedural history of this matter has been well traversed in the material placed before the Appeal Panel, including in the certificate of determination dated 8 May 2024.[1]
[1] Reported in the decision of Gooden v Secretary, Department of Education [2024] NSWPIC 236.
In summary, Ms Gooden has spent her working career in the employ of the Department of Education, in various roles, commencing as a classroom teacher and ending her employment as principal of Lucas Heights Community School.
She was the subject of an investigation due to soil fill placed on the site of the school on which she was the Principal. This investigation took an extensive (described as an “extraordinary period” in the decision of Member Drake) period of time, and ultimately resulted in the potential of the appellant being demoted to a head teacher position. Ms Gooden was medically retired from her employment on 6 December 2022.
As is obvious, a dispute arose as to the appellant’s entitlement to lump sum compensation. That first involved a liability dispute under s 11A of the Workers Compensation Act 1987 (1987 Act). Following the resolution of that liability dispute, Ms Gooden was referred for an assessment of the degree of her permanent impairment. A MAC was issued on 3 July 2024, providing an assessment of 8%.
Ms Gooden appeals from that assessment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient information available before the Appeal Panel to determine the issues in dispute. Neither party sought re-examination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) an undated statement of the appellant regarding her attendance at the medical assessment on 24 June 2024, and
(b) an undated statement of Simon Gooden, the appellant’s husband, regarding his attendance as a support person during the medical assessment on 24 June 2024.
The appellant submits that the evidence is relevant to the appellant’s need for support and contrary to a number of assessments relevant to the Psychiatric Impairment Rating Scales (PIRS). The appellant submits that the evidence could not reasonably have been obtained prior to the medical assessment as it relates to the examination itself. The appellant accepts that the evidence would be treated with the caution, but whether an applicant is accompanied is not a matter of interpretation of what occurred or had been said, but it simply a factual matter.
Secretary, Department of Education (the respondent) does not object to the acceptance of the fresh evidence, but submits that it is not a relevant factor in the assessment of the PIRS categories that form the grounds for appeal. The appellant was merely exercising her right to a support person as she was entitled to.
Given the respondent has no objection to the admission of the material, an accepting that it is likely that the material fits within the requirements of s 328(3), the Appeal Panel will admit the evidence. It is noted that the statements, whilst signed, are undated. It is “fresh evidence” in the sense that it was subsequent to the medical assessment, and was not available to and could not have reasonably been obtained by the appellant. However that acceptance is for the limited purpose of confirming that the appellant’s husband was in attendance during the video examination that took place. The respondent does not seem to take issue with that assertion. Any submission made by the appellant that relies on the statement evidence to establish anything other than the attendance of the appellant’s husband during the examination will not be accepted by 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. They are not repeated in full, but have been considered by the Appeal Panel. The appellant challenges the Medical Assessor’s assessment in two of the PIRS categories, being self care and personal hygiene, and concentration, persistence and pace.
In respect of concentration, persistence and pace, the appellant refers to various evidence throughout the material placed before the Medical Assessor, as well as the findings made in the MAC, that are inconsistent with an assessment of class 2 in this PIRS as made by the Medical Assessor. The appellant also notes that both independent medical experts assessed the appellant under class 3. The appellant submits that when one has regard to the specifics in the PIRS table, in the context of the evidence as a whole, she could not be described as being able to undertake a basic retraining course or a standard course at a slower pace.
In respect of self care and personal hygiene, the appellant submits that she needs prompting to shower daily and wear clean clothes, and does not prepare her own meals but is dependent upon her husband to ensure a minimal level of hygiene.
In response, the respondent submits that it was open to the Medical Assessor to assess class 2 in the PIRS of concentration, persistence and pace. The respondent disagrees that there was any internal inconsistency in the MAC, and that references made to support the internal inconsistency consist entirely of the appellant’s self-reported impairments. The respondent refers to other assessments, which show that Ms Gooden was engaged during examinations, and there is a compelling body of evidence that goes to a minimal or mild level of impairment to concentration. This is notwithstanding the fact that both independent medical experts assessed the appellant in class 3 for this PIRS.
In respect of self care and personal hygiene, the respondent submits that it was open to the Medical Assessor to reach the conclusion that she did. The respondent goes on to submit that the appellant is not able to live independently is inconsistent with the body of medical evidence the Medical Assessor was asked to consider, as well as the Medical Assessor’s own findings in her examination of the appellant.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 appellant challenges the assessment made by the Medical Assessor under two of the PIRS. The Appeal Panel will deal with each in turn, in the order presented in the appellant’s submissions.
Concentration, persistence and pace
The appellant submits that the Medical Assessor should have assessed class 3 in this PIRS. The appellant refers to the assessments of the two competing independent medical examiners, who both assessed class 3, in the context of the evidence as a whole.
The behaviour consequences of a psychiatric disorder are assessed under the PIRS. The Guidelines provides the following on how to apply the relevant tables:
“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 issue in this case is between class 2 and class 3 impairment in the PIRS of concentration, persistence and pace. The relevant criteria in Table 11.5 of the Guidelines provides:
“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.”
The examples given in the above classes, and in all of the classes in all tables, evaluate areas of “functional impairment” (per cl 11.1 of the Guidelines).
The Medical Assessor provides a summary of present symptoms on page 3 of the MAC. Specifically in relation to the above criteria the Medical Assessor records: “Her memory is ‘impaired and poor.’ She said that she needs to write things down and has to be reminded by the written notes.”. Under social activities/activities of daily living (ADL), it is recorded:
“Ms Gooden reported that her memory is ‘really bad.’ She said that she struggles with ‘long-term events.’ She added that she struggles for words. She used to be an avid reader but has not read anything in a long time. She at times reads the news headlines. She said that she is able to read only for a few minutes before she gets distracted.
On a typical day, she gets up early and feeds the cats and dogs. She then sleeps again. She said that she then wakes up ,has breakfast and sits in the veranda. She then watches television.” (emphasis in original)
In terms of consistency of presentation, the following was recorded:
“Ms Gooden’s presentation was consistent with the history given during the clinical interview, documentation received and mental state examination except for the history that Ms Gooden reported about her attention and concentration. Ms Gooden reported that she had difficulties in word-finding and gets distracted even during normal conversations.
However, during the one-hour long assessment, Ms Gooden did not have any difficulties in word-finding, was not distracted, was able to focus and concentrate without any difficulties. She scored 3/3 on three-word repeat and 3/3 on recall.”
The Medical Assessor ultimately assessed class 2 for this criteria, providing the following in the PIRS table in the MAC:
“Ms Gooden reported that her memory is ‘really bad.’ She said that she struggles with ‘long-term events.’ She added that she struggles for words. She used to be an avid reader but has not read anything in a long time. She at times reads the news headlines. She said that she is able to read only for a few minutes before she gets distracted.
She was however not distracted and was able to focus during the one hour long interview. I did the three-word test and Ms Gooden scored 3/3 on repeat and 3/3 on recall.” (emphasis in original)
The Appeal Panel notes the references throughout the appellant’s submissions to the supporting material placed before the Medical Assessor setting out the appellant’s struggles with concentration, including in her statement, and with particular reference to the assessment of both independent medical experts, who assessed class 3 in this PIRS.
The Appeal Panel accept that a Medical Assessor is not bound by other medical opinions and is entitled to, and indeed must reach his or her own conclusion based on the material provided by the parties, as well as (and principally) the examination itself. A Medical Assessor is assessing impairment, not determining a dispute between competing medical opinions. As much was made clear in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, which has been applied to medical assessments in the Personal Injury Commission (Commission).
The Appeal Panel accept that the Medical Assessor has, at the very least, considered the opinions of Drs Teoh and Chowdary, as they are discussed on page 7 of the MAC. The Medical Assessor notes that her opinion differs in a number of the PIRS.
On the other hand, the respondent has identified various locations throughout the evidence that show the appellant did not have significant difficulties, particularly during medical and rehabilitative appointments. The respondent acknowledges the self-reported evidence of impairment to concentration but refers to evidence that goes to a minimal or mild level of impairment of concentration.
The Appeal Panel acknowledges that there is a conflict between the appellant’s presentation in a clinical and medico-legal setting, and her (largely self reported) presentation in other aspects of her life. The Appeal Panel also acknowledge that the Medical Assessor has examined the worker and had the ability to consider her presentation on the day of her assessment.
However, the Appeal Panel specifically note the relevant criteria for the assessment of the PIRS of concentration, persistence and pace go to how an individual would function in the context of study, intellectually demanding tasks, and following patterns or plans. This is the area of “functional impairment” considered by the PIRS. There is no reference in the criteria to functioning during a medical examination or performance of serialised tests. The Appeal Panel acknowledge that such testing does have a role to play in the assessment of impairment, but that the three-word test employed by the Medical Assessor is narrow and does not represent a thorough assessment of concentration. A normal result is not particularly sensitive to exclude moderate cognitive impairment. In other words, a person can have moderate impairment of their functioning in concentration and still return a normal result. Furthermore, it is more accurately a test of short-term memory and ability to retain information, which is not a relevant part of the criteria for concentration, persistence and pace, which is focused on a person’s ability to perform tasks consistently.
The Medical Assessor also noted that the appellant was able to focus during the hour long interview. Whilst this may form part of the material by which the Medical Assessor forms a general view of the worker, it is not specifically part of the criteria for concentration, persistence and pace. The Appeal Panel note that the Medical Assessor has taken a history of Ms Gooden’s functioning in this PIRS, as struggling with reading and struggling with words. Whilst she was consistently attentive during the interview, the criteria in the PIRS relate to functional impairment which is broader than in the clinical or medico-legal setting. The evidence shows that Ms Gooden has a considerable focus on her worker’s compensation case – this is recorded in the MAC under present symptoms. It stands to reason that she would be better able to focus during a critical aspect of her case, being her one and only medical assessment, as opposed to the context given in the examples given in the PIRS.
The Medical Assessor records under “consistency of presentation” that “Ms Gooden reported that she had difficulties in word-finding and gets distracted even during normal conversations”. It can hardly be said that a medical assessment is a “normal conversation”.
Accordingly, the Appeal Panel is of the view that the Medical Assessor has applied incorrect criteria in assessing Ms Gooden. She has based her assessment on matters outside of the relevant criteria for assessing the PIRS of concentration, persistence and pace. The Appeal Panel accept that the state of a worker during an examination, and performance on relevant testing may form part of the clinical assessment of the Medical Assessor. Here, the Medical Assessor has ignored relevant information about the functioning of the appellant in a PIRS, by placing too great a weight on irrelevant factors, leading to an error.
It is the Appeal Panel’s view that on consideration of the evidence as a whole, the correct assessment in this PIRS is class 3 and the Medical Assessor’s assessment was an error (see Tasevski v Westpac Banking Corporation [2024] NSWSC 401 at [35]-[36]).
Self care and personal hygiene
The Medical Assessor assessed class 2 in this PIRS. The appellant submits that the correct assessment was class 3.
The relevant classes in dispute in the Guidelines provide:
“Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor provides the following in her reasons in the PIRS table in the MAC:
“Ms Gooden added that her husband has to remind her to shower and feels like it is a ‘chore.’ She showers and changes into clean clothes once every three days. She brushes her teeth every day. She said that her ‘house is never clean more so because of the kids moving in.’ She is able to do household chores like sweeping and vacuuming. She said that she takes turns with her husband to cook food. Her husband often cooks the meat and she cooks the vegetables. She is, however, able to manage her self-care independently.” (emphasis in original)
The appellant submits that the Medical Assessor’s findings must be considered in the context that her ability to manage self care is after prompting by her husband. This, it is submitted, does not speak of a person who is able to live independently.
The Appeal Panel does not accept this submission. Ms Gooden brushes her teeth daily and showers infrequently. Her house isn’t particularly clean, but that is not due to her psychological injury but rather her children. She cooks for herself and her husband and is able to do household chores.
An assessment in class 3 would require Ms Gooden to be unable to live independently without regular support. There is no evidence that that is the case. Clearly, based on the history given to the Medical Assessor, she contributes to the household including cooking and cleaning. She brushes her teeth daily which is normal. Whilst she only showers every three days following prompting, this is very close to within the normal variation in the general population, particularly considering Ms Gooden’s low level of activity and rarely leaving the house.
The above factors are entirely consistent with mild impairment, class 2, for this PIRS. The appellant’s submissions do not identify the application of incorrect criteria or show a demonstrable error.
Conclusion
For these reasons, the Appeal Panel has determined that the MAC issued on 3 July 2024 should be revoked, and a new MAC should be issued. The following is the PIRS in ascending order and aggregate score impairment:
Score
Median Class
2
2
2
3
3
4
=3
Aggregate Score Impairment
Total
%
+2
+4
+6
+9
+12
16
17
The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W807/24 |
Applicant: | Janice Gooden |
Respondent: | Secretary, Department of Education |
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 Medical Assessor Surabhi Verma 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 NSW workers compensation guidelines | 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.psychological/ psychiatric | 3/9/2019 | Chapter 11 Guidelines | 17 | 0 | 17 | |
| Total % WPI (the Combined Table values of all sub-totals) | 17 | |||||
0
5
0