Hamcot Management Consultants Pty Ltd Atd Pickering McKee Pty Ltd v Jones

DETERMINATION OF APPEAL PANEL
CITATION:	Hamcot Management Consultants Pty Ltd ATD Pickering McKee Pty Ltd v Jones [2024] NSWPICMP 31
APPELLANT:	Hamcot Management Consultants Pty Ltd ATD Pickering McKee Pty Ltd
RESPONDENT:	Brendan Jones
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	23 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal by employer against 15% psychiatric assessment; whether Medical Assessor (MA) offended principle in Ballas v Department of Education by including inappropriate facts in the social and recreational activities of the Psychiatric Impairment Rating Scale category; Held – MA included in this category facts that pertained to the social functioning category, and thus offended against Ballas v Department of Education; offending references were excised and the Appeal Panel reassessed both categories; the MA had not included the impugned facts in his class 2 assessment for social functioning, but they were found to warrant a class 2 rating also; the remaining facts relied on regarding the social and recreational activities category were found to justify a class 3 rating; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 August 2023 Hamcot Management Consultants Pty Ltd ATD Pickering McKee Pty Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 July 2023, and amended on 13 October 2023.
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.
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, 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

On 26 April 2023 this matter was referred to a Medical Assessor for a WPI assessment caused by psychiatric/psychological disorder deemed to have occurred on 8 January 2019.
Brendan Jones (Mr Jones/the respondent) had been bullied, harassed, mistreated and intimidated whilst he was working for the appellant employer. He worked longer hours than he was paid for and was made to work beyond the scope of his role.
He had to entertain clients by meeting the expense himself and waiting for reimbursement from the appellant employer.
He ceased work in March 2019.
The Medical Assessor initially issued a MAC dated 11 July 2023 but the worker having found an obvious error in calculation applied to the Medical Assessor to correct the error.
The amended MAC was issued on 13 October 2023.
In the meantime, on 7 August 2023 the appellant employer appealled against the original MAC. It was substantially in the same form as the present MAC and no challenge has been made to the description in the appeal of the MAC being dated 11 July 2023.
The Medical Assessor found there to be a 15% WPI having corrected his miscalculation from his earlier MAC of 13%.

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. The appellant employer did not request one and sufficient evidence was already before us to determine the issue raised.

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 issue on appeal related to the Class 3 rating given to the Psychiatric Impairment Rating Scale (PIRS) category of social and recreational activities.

THE MAC

In his table 11.8 PIRS rating form the Medical Assessor stated:[1]
“Mr Jones was asked how often he saw friends before the injury and replied, ‘Not very often, to be honest. I’d never had a lot of friends and I don’t have any mates at the moment. I don’t have anyone to talk to, besides my wife’. He estimated seeing work friends once a week or fortnightly before the injury but said that he had lost contact with them ‘since it happened – mainly work colleagues’. He reported seeing family ‘very regularly, maybe my mum would pop over often, maybe every few days, once a week, not so much these days’ because of his lack of motivation and he spoke of anxiety around others, even with family members. Mr Jones said that he would absolutely not’ be able to attend a party by himself or a major social function and reported not having any hobbies these days, though he previously enjoyed ‘ bit of fishing, boating when I was younger and that with my brothers and what not’, noting that the report of Dr Oldtree Clark mentioned that he has four brothers. He does not go fishing anymore, but would go every one or two weekends before his injury.”

SUBMISSIONS

[1] Appeal papers page 38-39.

Appellant employer

The appellant employer restricted its submission to the classification made under the PIRS table for social and recreational activities.
We were referred to Ballas v Department of Education (State of NSW).[2]
[2] [2020] NSWCA 86.
The appellant employer submitted that the Medical Assessor had infringed the principle therein outlined in the reasons he gave for his assessment of a Class 3, moderate impairment, for the category within the PIRS of Social and Recreational Activities.
The appellant employer submitted that the assessment of functional impairment associated with this category was directed to the kind of activities that involved interactions with other people. It contended that whether a claimant was able to maintain relationships was relevant to the class of Social Functioning and not social and recreational activities.
The appellant employer referred to those parts of the Medical Assessor’s reasons that were concerned with the inclusion in this category of his relationship with his brothers and his mother.
Similarly, the appellant employer submitted that the breakdown of Mr Jones’ relationship with his work colleagues was not directed to his ability to interact with other people, but rather reflected the consequences of an industrial dispute and his changing employment. Mr Jones had explained to the Medical Assessor that he’d never had a lot of friends and had no “mates at the moment”.
Alternatively, we were referred to the history that Mr Jones had no hobbies presently, but used to do a bit fishing and boating when he was younger with his brothers “and what not.” This conduct, “to the extent that [it] referred his relationship with his brothers” was referrable to his ability to maintain interpersonal relationships rather than his ability to interact with others, the appellant employer submitted.
It was further submitted that fishing was an otherwise solitary activity not related to Mr Jones’ capacity to interact with others and therefore was not properly a matter for consideration under this category.
It followed therefore that that Medical Assessor had taken into account irrelevant considerations in assigning the Class 3 value to this category.
The appellant employer also submitted that the Medical Assessor had made a demonstrable error because there was insufficient material and information upon which to base a Class 3 value. The reference to relationships with Mr Jones’s mother, brothers and former work colleagues and his ability to engage in solitary activities not involving interactions with others, was not referrable to his ability to engage in the conduct envisaged by this category.
It was further submitted that the Medical Assessor had made a “hypothetical assertion” when he recorded that Mr Jones “absolutely [could] not” attend a party by himself due to his anxiety.
It was not clear what was meant by the term “by himself” and it was submitted that the Medical Assessor’s reasons left open the situation where Mr Jones would attend a party if encouraged by his family or if they were in attendance. It was “in isolation” insufficient evidence to justify the Class 3 finding.
It was submitted that the available evidence was that Mr Jones had been engaged in limited conduct referrable to social and recreational activities in any event.

Respondent’s submissions

The respondent noted the appellant employer’s reliance on Ballas. It referred to chapter 11.12 of the Guides and submitted that a Medical Assessor was thus given a wide discretion as to the characterisation of the behavioural consequences of a claimant’s psychiatric injury.
Mr Jones submitted that the category self-evidently required an assessment of the effect of a claimant’s disorder on his ability to function regarding his social and recreational activities. The interpretation advanced by the appellant employer of the principle in Ballas was too narrow, it submitted.
Mr Jones submitted that there was no basis for the appellant employer’s submission that the Medical Assessor had based his assessment in this category on Mr Jones’ ability to maintain relationships with his family (his mother and his brothers) and his former co-workers. The Medical Assessor’s observations provided a contextual illustration about Mr Jones’ social and recreational activities, not his social functioning, we understood the submission to assert.
The illustration given by the Medical Assessor evidenced Mr Jones’s inability to partake or engage in any social and recreational activities as a result of his injury. Such social and recreational activities would include the relationships in his familial environment and close social circles if they were partaking in those activities, it was further argued.
As to the allegation that because fishing was a solitary activity it should be excluded, Mr Jones submitted. Fishing was correctly identified by the Medical Assessor as a social activity which was engaged in with others, that is to say, his brothers. It was accordingly not a solitary activity.

FINDINGS AND REASONS

The PIRS

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[3] 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.”
[3] Guides 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[4]
[4] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[5] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (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[6]. 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].”
[5] [2017] NSWSC 887.
[6] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[7] 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]).”
[7] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a.     if the categorisation was glaringly improbable;
b.     if it could be demonstrated that the AMS was unaware of significant factual matters;
c.     if a clear misunderstanding could be demonstrated, or
d.     if an unsupportable reasoning process could be made out.
In Western Sydney Local Health District v Chan[8] Adams J found that a Medical Assessor (‘AMS’ as they were then called) was bound following the High Court authority of Wingfoot Australia Partners Pty Ltd v Kocak[9] to set out in his Statement of Reasons the actual path of reasoning by which he arrived at his opinion.
[8] [2015] NSWSC 1968.
[9] [2013] HCA 43; 252 CLR 480.
We have already referred to Vegan at the outset of these reasons which found that the extent of the reasons required to be given by an Appeal Panel (and by analogy with Chan, a Medical Assessor) can “vary from case to case, depending on whether one conclusion or more than one conclusion is open.”
In Ballas v Department of Education[10] the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (or scale), and failure to do so would result in appellable error. As noted, this is the principal issue raised by the appellant employer.
[10] [2020] NSWCA 86 at [94].
The descriptors for Social and Recreational Activities are contained in Table 11.2:[11]
“Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out 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.

Class 4 Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5 Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”
[11] Guides page 56.

In the PIRS category of Social Functioning, the descriptors given for Classes 2 and 3 are as follows:[12]
“Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
[12] Guides page 56.
With regard to social functioning, the Medical Assessor said:[13]
“Social Functioning
Mr Jones spoke of strain on the relationship from his own psychological symptoms, including anxious irritability, lowered frustration tolerance and withdrawal, along with lowered libido. Of the injury and its effect on the relationship he stated, ‘it’s been testing – she’s got her own health issues [referring to her previous cancer]. The current shift work is not good for our relationship’. He reported being snappy and irritable when anxious, 1. Although the Medical Assessor noted that Mr Jones had ‘never had a lot of friends,’ nonetheless he had been seeing his work friends once a week or fortnightly before the injury, and had lost contact with them since. Hat describing himself as withdrawn and he earlier described an increased burden of tasks on his wife because of his injury related symptoms.”
[13] Appeal papers pages 29 and 39.

In Ballas the Delegate of the Registrar refused to allow an appeal to proceed where it had been argued that a complainant’s activity playing poker machines could not be properly described belonging in the category of social and recreational activities.
The Court found that even if there might, as a matter of English language, be some overlap in a claimant’s conduct between the different categories (or scales) within the PIRS, a Medical Assessor had no discretion as to which category such conduct should be ascribed. At [94], Bell P and Payne JA, Emmett A JA agreeing, said:
“... If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
There is some force in Mr Jones’ submission that if a claimant were engaging in recreational activities with his family, such as boating and fishing, then in context it could not be said that the conduct was wrongly assigned simply because family were involved in such activities. However, the descriptors set out in Table 11.2 are concerned with the social aspect of a claimant’s activities – hence the playing of poker machines in Ballas was not considered a social and recreational activity, as it did not involve any social component.
The Medical Assessor, with respect, has read into the definition of this category the social component required in the category “social functioning.” The Medical Assessor noted that Mr Jones had “never had a lot of friends,” but nonetheless he had been seeing his work friends once a week or fortnightly before the injury, and had lost contact with them since. The Medical Assessor noted that Mr Jones’ regular contact with his family, and noting that his mother would “pop over often, maybe every few days, once a week, not so much these days”. None of these facts had anything to do with Mr Jones’ social and recreational activities.
It can however be seen that this category (or scale) does contemplate family involvement in the Class 3-5 descriptors. The reference to Mr Jones’ reluctance to attend a party or social function by himself was relevant to the Class 3 descriptor. This history was recorded by the Medical Assessor, and we do not accept the submissions by the appellant employer that it should be ignored on the basis that it was hypothetical. It was a relevant observation which the Medical Assessor was entitled to make, given his training and expertise.
Mr Jones’ reference to having given up fishing, which he used to do every one or two weekends prior to the injury, was also relevant. It was an activity that was age, sex and culturally appropriate, in accordance with Class1, and one which he no longer did, which was consistent with Class 3, as he was not actively involved. We reject the submission that fishing is a solitary activity. There was no evidence that Mr Jones fished in isolation – indeed he referred to fishing and boating with his “brothers and what not” when he was younger. Fishing is a universally accepted activity which is practised over a wide range of every community which has access to water.
It can be seen that of the activities properly identified in the Social and Recreational Activities category by the Medical Assessor, the appropriate Class was indeed a Class 3.
The appellant employer submitted that the matters the Medical Assessor referred to that were not appropriate to this category more properly belonged in the category of Social Functioning. We note that the Medical Assessor did not include any of the impugned facts in his assessment of Social Functioning, and a consideration as to whether that category should be increased becomes relevant. The loss of the friendships of Mr Jones’ work colleagues, and the loss of regular contact with his family we are satisfied are both indicative of a Class 2 rating for Social Functioning, given the descriptors describe “loss of some friendships” and “existing relationships strained”.
Accordingly, whilst acknowledging the error made by the Medical Assessor, we have been able to correct it by excising the conduct which should have been assigned to Social Functioning. For these reasons the correction of the error has not required us to reassess either the Class 2 rating for Social Functioning, or the Class 3 rating for Social and Recreational Activities.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 July 2023 should be confirmed.

[2024] NSWPICMP 31

23 January 2024