Gordon v The Northcott Society

[2023] NSWPICMP 582

DETERMINATION OF APPEAL PANEL
CITATION:	Gordon v The Northcott Society [2023] NSWPICMP 582
APPELLANT:	Jason Gordon
RESPONDENT:	The Northcott Society
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	11 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from finding of 19% whole person impairment by psychologically injured worker; whether Medical Assessor had given adequate reasons; whether assessment of concentration persistence and pace open; Held – factual findings not supported by reference to evidence, which contradicted the impugned assessment; Wingfoot Australia Partners Pty Ltd v Kocak and Campbelltown City Council v Vegan considered and applied; Medical Assessment Certificate revoked and assessment of 22% substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 20 April 2023 Jason Gordon, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 March 2023.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

1. On 12 December 2022 this matter was referred by a delegate of the President for an assessment of WPI caused by a psychological/psychiatric disorder as a result of injury on
   30 November 2021.

2. Mr Gordon suffered injury through being bullied by a fellow worker whom it was shown had falsely accused Mr Gordon on a charge.  Following his vindication however Mr Gordon was then “micromanaged” at work. He became increasingly withdrawn and depressed and suffered his injury.

3. He had in 2006 been involved in a violent incident at RailCorp and then in 2014 was a victim in a road rage incident. The Medical Assessor said that these two incidents “exacerbated his symptoms for a period of time.”  

4. The Medical Assessor assessed 19% WPI.

PRELIMINARY REVIEW

1. 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.

2. The appellant, Mr Gordon requested to be re-examined by a Panel Medical Assessor.   However, for the reasons given below, although demonstrable error was established, no re-examination was required as sufficient evidence was before us to determine the matter.

EVIDENCE

Documentary evidence

1. 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

1. 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

1. Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The appellant challenged the assessment made with respect to the Psychiatric Impairment Scale (PIRS) category of concentration, persistence and pace.

THE MAC

1. The Medical Assessor described his findings on physical examination in the following terms:

   “Appeared his stated age. Flat affect. Nil abnormal psychomotor activity. Depressed and anxious mood. Oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. Nil formal thought disorder. Nil delusions or hallucinations. No thoughts of harm to others. Fleeting suicidal ideation.”

2. The template for paragraph [10c] of the MAC provides:

   “c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:”

3. The Medical Assessor said:

   “Dr Lee 20/10/21 diagnosed MDD WPI 41% Dr Bertuceun 12/1/21 diagnosed MDD, 4/5/22 WPI 19% I agree with WPI of Dr Bertuceun. It is likely that illness has improved since assessment of Dr Lee.”

4. The Table 11.8 PIRS rating form prepared by the Medical Assessor stated:

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	JASON GORDON	Claim reference number (if known)
DOB	Age at time of injury
Date of Injury	30/11/21	Occupation at time of injury	fisheries
Date of Assessment	20/2/23	Marital Status before injury	Married

Psychiatric diagnoses	1.MDD	2.
3.	4.
Psychiatric treatment	Hospitalisations, medication, psychiatrist
Is impairment permanent?	Yes

PIRS Category	Class	Reason for Decision
Self Care and personal hygiene	2	Reduction in ADLs and cooking
		Social and recreational activities	4	Has withdrawn from social and recreational activities
Avoids people
Travel	1			Is able to drive independently
		Social functioning	3	There are no significant prior relationships maintained
He gets along with his flatmate
Concentration, persistence and pace	2			Subjectively impaired concentration
		Enjoys television shows
		Employability	5	Is currently severely impaired and unable to work

Score			Median Class
1	2	2	3	4	5	3
Aggregate Score Impairment			Total	%
+	+	+	+	+	17	19

SUBMISSIONS

Mr Gordon

1. Mr Gordon submitted that the Medical Assessor had fallen into error in the assessment of the category concentration, persistence and pace within the PIRS rating.

2. The appellant gave an impressive overview of the legal principles applicable to an appeal to a Medical Appeal Panel.  Mr Gordon submitted that the brevity and paucity of detail contained in the MAC resulted in a failure by the Medical Assessor to set out the actual path of reasoning which led to the opinion he had formed himself.  We were referred to the well-known dicta of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[1]

   [1] [2013] HCA 43.

3. Mr Gordon referred to the comments made by the Medical Assessor at [10c] of the MAC.
   

   [2] Appeal papers page 64.

   Mr Gordon noted that the assessment by Dr Leonard Lee, his medico-legal specialist, was 41% WPI on 22 October 2021.[2]

4. Mr Gordon submitted that there was “a very stark difference” between that assessment and the assessment by Dr Bertucen on 4 May 2022, who assessed 19% WPI.[3]   Moreover,
   

   [3] Appeal papers page 968.

   [4] Appeal papers page 52.

   Mr Gordon had made a statement on 6 October 2022, regarding the facts of the assessment by Dr Bertucen, which had not been regarded, if it had even been considered.[4] 

5. Mr Gordon submitted that there was such a gulf between the two assessments that there was a need for rational reasons that explained why the Medical Assessor differed in his opinion from Dr Lee.  His one statement that it was likely that the illness had improved since the assessment with Dr Lee was somewhat difficult to comprehend in the light of the evidence of Mr Gordon both before and after Dr Bertucen’s assessment.

6. Mr Gordon submitted that Dr Lee’s assessments in each category of the PIRS reconciled most closely with Mr Gordon’s evidence.

7. Mr Gordon submitted that the Medical Assessor had “manifestly failed to give any reasons or record any details about any of the impairment categories”.

8. We were referred to Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd.[5]

   [5] [1983] 3 NSWLR 378 at 386.

The respondent

1. The respondent submitted that no error had been made by the Medical Assessor.  We were referred to Phillip John Carmody v Walter Merriman & Sons Pty Limited[6] in which one of the first Deputy Presidents within the Workers Compensation Commission, DP Fleming, said that the medical assessment was “entirely a matter for” him. It was submitted that the appellant bore the onus of establishing error. 

   [6] [2003] NSWWCCPD 27.

2. It was submitted that the examination amounted to a proper medical examination, and was not in any way materially defective. There was no evidence to the contrary, it claimed.

3. The respondent noted that the specific challenge was against the finding of a class 2 impairment in the category of concentration, persistence and pace, when Mr Gordon asserted that a class 3 should have been assessed.

4. The respondent submitted that the Medical Assessor approached the criteria on a “best fit” basis.    We were referred to Beatty v State of New South Wales – Nepean Blue Mountains Local Health District.[7] It was submitted that the Medical Assessor compared the descriptors with all of the evidence before him and particularly noted Mr Gordon’s presentation at examination, and had determined the best fit impairment.

   [7] [2021] NSWPICMP 93.

5. The respondent submitted that the Medical Assessor had noted the history and evidence available and documentation referred to him.  The fact that he “considered those documents at page 1 of the MAC” was said to be confirmation that indeed the Medical Assessor had considered the totality of the evidence and applied “Rule” 11.12. (We assume the respondent meant Chapter 11.12 of the Guides).

6. With regard to the submission that the Medical Assessor had fallen into error particularly in the category of concentration, persistence and pace, the respondent submitted that no such demonstrable error or use of incorrect criteria had been made out.  It was submitted that a Medical Assessor was permitted to determine what weight should be given to the documents before him.  That the Medical Assessor may have placed weight on certain information such as the report of Dr Bertucen and not others when forming his opinion was a matter for his clinical judgement.

7. The fact that Dr Lee made a different assessment based on the history provided to him was of little significance, it was submitted.   We were referred to Merza v Registrar of the Workers  Compensation Commission[8] as authority for the proposition that a mere difference in medical opinion does not amount to a demonstrable error.

   [8] [2006] NSWSC 939.

8. The respondent made submissions regarding the factual background to the category of concentration, persistence and pace.   It submitted that the Medical Assessor had not noted any current symptoms regarding lack of concentration or slow pace.   The Medical Assessor noted that Mr Gordon was able to travel independently and got along with his housemate.  Mr Gordon was orientated as to time, place and person and spoke at a normal rate with normal rhythm, volume and prosody.

9. The Medical Assessor described that Mr Gordon had “subjectively impaired concentration” but was able to enjoy television shows suggested, it was submitted, that Mr Gordon presented with a higher degree of ability to concentrate than reported.

10. Further, it was submitted that the Medical Assessor had before him more evidence than simply the opinion of Dr Lee which he had considered, including his own impression.   

11. The respondent cited Vitaz v Westform (NSW) Pty Limited[9] as authority for the proposition that a Medical Assessor was entitled to reach conclusions, no doubt partly on an intuitive basis, where an alternative conclusion is not presented by the evidence and not necessarily available.

    [9] [2011] NSWCA 254.

12. The respondent submitted that applying the dicta of Glenn William Parker v Select Civil Pty Limited[10] it had not been established that there was any difference of opinion about which reasonable minds may differ.

    [10] [2018] NSWSC 140.

13. The Medical Assessor had the benefit of conducting the most recent assessment of the appellant, “wherein he had the opportunity to question the Appellant and also undertook an extensive review of the relevant medical evidence,” the respondent submitted. 

DISCUSSION

PIRS

1. 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.

2. 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.

3. The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[12].  

   [12] See See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.

4. 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.

5. 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.

6. 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.”

7. The Medical Assessor has developed an economy of reporting that, whilst admirably suited to medical advice work is not, with respect, appropriate in his present capacity. Section 326 of the 1998 Act provides, amongst other things, that a Medical Assessor’s opinion as to WPI is conclusively presumed to be correct, and its effect is to entitle (or not)  a claimant to payment of  lump sum compensation.   The legislature has provided for appeals to be lodged against the decisions of Medical Assessors by virtue of s 327  of the 1998  Act.

8. As we noted above, Vegan is authority for the proposition that a Medical Assessor is obliged to give reasons, the extent of which will vary depending on the nature of the case. They need not be extensive or provide a detailed explanation of the criteria used by medical professionals in reaching a professional judgement, but they do have a minimum standard. In Wingfoot the High Court stated at [55]:

   “…The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. …..If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record ….”

9. It is settled that the High Court’s opinion also applies to Medical Assessors.[15]

   [15] Western Sydney Local Health District v Chan [2015] NSWSC 1966 at [13].

10. Whilst the respondent pressed that the onus was on the appellant to show error, and there was “no evidence” that the Medical Assessors examination was in any way defective, the submission rather misses the point.  Mr Gordon has challenged the assessment because, although there was sufficient evidence before the Medical Assessor to satisfy his onus, the Medical Assessor did not appear to refer to it.  Similarly, a submission that the Medical Assessor “noted the history and evidence available” because he had referred to it on the first page of his MAC is also of little probative value. The Medical Assessor simply said in answer to the templated statement “The following documents were referred by the Commission for this assessment”:

    “As listed in the referral from the Commission.”

1. It is difficult from a reading of the MAC to infer that the Medical Assessor had in fact read all the material before him. Whilst there is a presumption of regularity which attends administrative action, and thus a presumption that a Medical Assessor will have read all the material before him,[16] the paucity of reasoning exhibited rebuts that presumption. There is nothing more than the most peremptory reference to the other expert opinions, at [10c] where the Medical Assessor’s inattention to detail is evident in his misspelling of
   

   [16] Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175 at [36].

   Dr Bertucen’s name. His opinion that he preferred the WPI found by Dr Bertucen as “it is likely that illness [sic] has improved since assessment with Dr Lee” is not supported by any reference to facts or evidence, and particularly did not explain why he reached that conclusion in the light of the contents of Mr Gordon’s second statement of 6 October 2022.

2. In that statement, Mr Gordon said:

   “13.   With regards to my concentration I note that Dr Bertucen says that I said my concentration was fine. I must have misunderstood his question. The Dexamphetamines that I take help with my concentration which I think would be absolutely a mess if I was not taking them however my concentration is not fine. I find it difficult to read simple instructions. I do not read the newspaper any longer. I do not read books and I find it difficult to watch TV programmes and follow the plot. I struggle to make it even through short videos online and I certainly cannot imagine trying to get through a movie. I could not read a novel as there is no way I would take in the information. I am so bad with my concentration that I get easily confused and I have to get my doctors to assist me filling out forms.

   14.    I struggle keeping appointments and remembering when I have to attend to things. I forget about things and stress about them very easily. I tend to try and put notes on the fridge under magnets otherwise I would generally miss most of my appointments however due to my failing to remember them I do on occasions miss appointments.

   15.    I also find that I lose things quite easily having misplaced them in the house, forgetting where I put things down.

3. Mr Gordon also stated:

   “17.   I note that my appointment with Dr Bertucen was conducted via video.
   Dr Bertucen was only on the call with me for a maximum of 15 minutes. He said to me that he had it all written down and didn't need anything more from me. I asked him what he meant and he said "Well you've seen me before and I've got it all.”

4. Mr Gordon made other assertions in that statement critical of Dr Bertucen’s report, but this appeal is concerned only with the category of concentration, persistence, and pace.   The contents of Mr Gordon’s statement of 6 October 2022 were directly relevant to the opinion of Dr Bertucen, and required some comment by the Medical Assessor   to explain his simplistic reason for accepting Dr Bertucen’s assessment of WPI.

5. With regard to the impugned category, concentration, persistence and pace, as indicated above the Medical Assessor stated in the “reason for decision” column in his Table 11.8 rating form:

   “Subjectively impaired concentration
   Enjoys television shows.”

6. Table 11.5 of the Guides states that the descriptors for class 2 in this category are as follows:

   “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.”

7. A class 3 impairment is described as follows:

   “Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”

8. The class 4 descriptors are:

   “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.”

9. Just what the term “subjectively impaired concentration” was intended to mean is difficult to assess in terms of the descriptors we have referred to. On one view any impairment is subjective, including that of concentration. 

10. We are accordingly of the view that the MAC has to be revoked. The paragraphs from
    Mr Gordon’s statement of 6 October 2022 that we have reproduced above, are sufficient repudiation of the reasons given for a class 2 rating in this category.  The restrictions he described are similar to those noted by Dr Leonard Lee, Consultant Forensic Psychiatrist in his report of 22 October 2021, for which Dr Lee assessed a class 4 rating.

11. In all the circumstances a class 3 rating is called for, as Mr Gordon’s description of his impairment in this category makes a class 4 rating inappropriate. Mr Gordon was capable of reading more than just a few lines before losing concentration and there were no concentration deficits obvious in the brief findings on physical examination reported by the Medical Assessor.

12. For these reasons, the Appeal Panel has determined that the MAC issued on
    28 March 2023 should be revoked, and a new MAC should be issued.  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:	W6837/22
Applicant:	Jason Gordon
Respondent:	The Northcott Society

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 Gerald Chew 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)
Psychological	30/11/21	11	22	nil	22
Total % WPI (the Combined Table values of all sub-totals)					22%

PIRS CATEGORY	Class	Reason for decision
Self care and personal hygiene	2	Reduction in ADLs and cooking
Social and recreational activities	4	Has withdrawn from social and recreational activities Avoids people
Travel	1	Is able to drive independently
Social functioning	3	There is no significant prior relationships maintained. He gets along with this flat mate
Concentration, persistence and pace	3	Subjectively impaired concentration Enjoys television shows He is oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. He has difficulties following simple instructions and his deficit is not to the degree that it is obvious even during brief conversation or that he could not live alone.
Employability	5	Is currently severely impaired and unable to work

Score   Median class

1 2 3 3 4 5

3

Aggregate score impairment  Total

+ + + + +

18 22%