Hartanto v Vodafone Hutchinson Australia Pty Limited
[2021] NSWPICMP 71
•14 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hartanto v Vodafone Hutchinson Australia Pty Limited [2021] NSWPICMP 71 |
| APPELLANT: | William Hartanto |
| RESPONDENT: | Vodafone Hutchinson Australia Pty Limited |
| Appeal Panel: | Member John Wynyward Dr Doug Andrews Dr Patrick Morris |
| DATE OF DECISION: | 14 May 2021 |
| catchwords: | WORKERS COMPENSATION- Appeal against finding of 11% WPI for psychological claim; failure to give adequate reasons asserted; further error alleged in two PIRS categories; section 323 deduction challenged; Held- submissions unsupported by evidence of no weight; inference that Medical Assessor (MA) did not consider evidence speculative; presumption of regularity referred to; Jones v The Registrar of the Workers Compensation Commission applied; MA’s reservations as to credit open to him on the evidence; PIRS submissions no more than difference of opinion; Ferguson v State of New South Wales applied; diagnosable pre-existing borderline personality properly considered and 1/10th deduction; Fire & Rescue NSW v Clinen considered; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 January 2021 William Hartanto, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Samson Roberts, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 December 2020.
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,
· 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 Medical Dispute Assessment Guidelines 2018 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition, 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 30 October 2020 a delegate referred this matter to a MA for assessment of WPI caused by a psychiatric/psychological disorder which occurred on 9 March 2016. We note that a general medical dispute was also referred, which we have no jurisdiction to consider.
The referral was made after Consent Orders had been made on 9 October 2020.
Mr Hartanto was employed by the respondent as a salesperson and on 9 March 2016 was attending a conference in Koh Samui in Thailand for the highest performing sales people working for the respondent. Unfortunately he walked into a plate glass window and suffered extensive lacerations to his wrists, left arm and right leg which resulted in substantial bleeding.
Whilst colleagues were attending him, Mr Hartanto’s manager asked if anyone knew whether he had AIDS. When challenged as to that question by her colleagues she replied “How do you know? He sleeps with lots of men. He’s on medication”.
The appellant was conveyed to Bangkok Hospital in Koh Samui, where he underwent surgery. He was taken to hospital and his General Manager and a colleague travelled with him. The General Manager remained with him in Koh Samui until he was able to be escorted back to Australia.
In his statement dated 19 December 2019[1] Mr Hartanto said that he had been working for the respondent for eight and a half years and that the trip to Thailand was reward as he was one of the top 5% performers in the country.
[1] Appeal papers page 65.
On his return to Sydney, Mr Hartanto attended St Vincents Hospital Emergency Department on two occasions when his sutures were removed. He was unable to walk for approximately one month following the injury. He attended physiotherapy and was assisted by an exercise physiologist. He also underwent treatment to reduce the prominence of the scarring. He first attended his GP Dr Gary Lee for treatment on 15 March 2016.[2]
[2] Appeal papers page 796.
Mr Hartanto said that at the time of the injury he was in shock because of his lacerations, and he had never seen so much blood. He recalled that when his manager asked the question about AIDS, he thought “that’s not right”. He said that the manager had previously sought to get rid of him.
When he returned to Australia Mr Hartanto spoke to Human Resources about the manager’s statement, but on being told that it was made out of concern for others who touched the blood, Mr Hartanto “shut down”. He thought that this “homophobic attack” was more significant than the physical injury itself. After learning that the manager’s comments had been justified from Human Resources, those who had assisted him at the time withdrew their support for him.
Mr Hartanto’s mental state deteriorated. He became suicidal. He was hospitalised. He had a long period of hospitalisation at the Sydney Clinic, a private psychiatric hospital in Bronte.
The treatment that was provided was useful to him and at the time of the assessment he said that he was no longer unstable or suicidal. He said that he had lost all of his friends since the accident and that no-one visited him whilst he was in the Sydney Clinic despite his agreeing to accept visitors.
He obtained another job with another employer, Bupa, in September 2016 but experienced flashbacks to his former manager’s behaviour when he was required to interact with the managers in his new job. The flashbacks related mostly to the manager’s face. He became vigilant for homophobic behaviour. He ceased working for Bupa in May 2017 and has not worked since.
The MA assessed a WPI of 11% from which he took 1/10th pursuant to the provisions of s 323 of the 1998 Act, leaving a combined table value of 10%.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant sought to be re-examined by a MA who is a member of the Appeal Panel and a re-examination however was not required as the appellant failed to demonstrate error in the MAC.
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 submission 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 appellant lodged a most detailed and comprehensive set of submissions which amounted to 75 paragraphs. The Panel acknowledges the industry and attention to detail that those submissions exhibited. They were divided into seven broad issues, the evidence somewhat overlapping the different categories. These were:
· failure to consider evidence;
· failure to take sufficient account of evidence;
· failure to take relevant history;
· failure to provide adequate explanation and reasoning;
· failure to properly assess the PIRS category of social and recreational activities;
· failure to properly assess the PIRS category of concentration, persistence and pace, and
· deduction for the proportion of the impairment that was due to previous injury or pre-existing condition or abnormality.
The MAC
The MA considered Mr Hartanto’s diagnosis in his “Summary.”[3] With regard to the diagnosis of Post-Traumatic Stress Disorder, he noted that Mr Hartanto’s distress had not been caused by the physical injury itself. The causes had been:
“… The comments made by his manager, the lack of support provided to him by Human Resources and the lack of support provided to him by a … manager and by his … friends…”
[3] Appeal papers pages 42-44.
The MA said that Mr Hartanto’s symptomatology at interview reflected a depressed mood, compromised self-esteem, altered appetite, social withdrawal and disturbed sleep. The MA noted the contradiction between Mr Hartanto’s expressed impairment of energy and his regular attendance at the gym. He also noted the contradiction between Mr Hartanto’s description of social withdrawal and his pursuit of sexual engagement and occasional dinners. The MA said:
“… It was nevertheless apparent that the depressive symptomatology was the most prominent aspect of his presentation associated with which there were features of anxiety. The most appropriate diagnosis based on the history presented at interview, assuming its accuracy, is that of Persistent Depressive Disorder with Persistent Major Depressive Episode with Anxious Distress.”
The MA noted that PTSD had been diagnosed by “several clinicians and by independent medical examiners.” He referred to the definition of Criterion A in DSM-5 and noted:
“…such features were not evident at the time of the assessment on 30 November 2020. Namely, the intrusion of symptoms and avoidance behaviour related not to the physical injury but to the homophobic insult. This does not represent an event that could be construed to accord with the examples of Criterion A traumas…”
The MA also noted that the history provided by Mr Hartanto reflected two distinct aspects of the subject incident. The first was the physical injury caused by his walking into a plate glass window and the second related to the remarks made by the manager. The MA said:
“Whilst it could be argued that it is appropriate and necessary to enquire about the prospect of blood-borne viruses in a circumstance in which ones staff came into contact with the blood of a colleague, by Mr Hartanto’s account, this question was posed in a manner which he found to be so insensitive as to be interpreted as homophobic in nature. It is this aspect of the incident that he highlighted as causative in his psychiatric decline and he stated that in the absence of this aspect of the event, it is his expectation that he would not have become psychiatrically unwell. The impact of this aspect of the incident was compounded by the response of the Human Resources Officer at Vodafone, who justified the comments made by his manager.”
The MA concluded his summary by finding there was “significant overlap between features attributable to the pre-existing diagnoses and the injury- related diagnosis which has been exacerbated by the subsequent sexual assault.”
The MA described the pre-existing condition as a Personality Disorder of the narcissistic borderline type. He found: [4]
“…it is apparent that there is a general consensus that Mr Hartanto suffered a psychiatric injury consequent upon the subject circumstances notwithstanding the difference of diagnostic conclusion and there is a general consensus that he suffered prior psychiatric vulnerability of a nature sufficient to attract a formal diagnosis.”
[4] Appeal papers page 45.
The MA took a psychosocial history of the development of Mr Hartanto’s personality. Mr Hartanto advised that he was born in Jakarta and that his parents separated when he was 10 years of age. At 12 he was sent to boarding school in Taiwan. The MA said:[5]
“… He was abused by the other boys and he was the subject of physical threats. He was not exposed to any sexual abuse. He could not explain the basis upon which he was targeted…”
[5] Appeal papers page 36.
He left boarding school, aged 16, and returned to Jakarta where he lived with his mother’s new family, which included a number of children and step-children. In 2007, when he was 19 years old, he moved to Australia.
During the interview, the MA enquired about matters that were referred to in the documentation before him. Mr Hartanto agreed that he had been sexually abused by his two stepbrothers when he was 14 years old, but he did not find it upsetting and never thought about it too much.
Mr Hartanto studied Drama and Performance at Macquarie University before withdrawing from the course to complete his acting studies. Whilst studying he obtained employment with Vodafone where he worked successfully for eight years.
Mr Hartanto said he had never been in an intimate relationship prior to the subject accident, and that the one long-term relationship he entered into since had ceased because of Mr Hartanto’s worsening psychiatric condition.
In discussing Mr Hartanto’s social activities Mr Hartanto said that he did not read, watch television or use the Internet. “By contradiction,” the MA said, “he spoke of meeting people on Grindr and engaging in sex. He typically goes to their homes within the local area. The frequency with which he goes out for such engagement varies week to week. Sometimes he will go out to dinner with a prospective sexual partner.”[6]
[6] Appeal papers page 37.
The MA noted a further contradiction in that Mr Hartanto said that he browsed Facebook and YouTube when he had said that he did not use the internet.
The clinical notes from Holdsworth House Medical Practice recorded that Mr Hartanto was being treated by Dr Gary Lee GP from 16 March 2016, when treatment was focused on the lacerations.[7]
[7] Appeal papers page 794.
An entry from Dr Lee dated 5 April 2016 showed that Mr Hartanto was depressed and Dr Lee referred him to Psychologist Lynette Tull. The cause of Mr Hartanto’s depression was recorded as being concern for his sister who lived in Melbourne, had been diagnosed “BPD” five years earlier, and was dating a psychiatric nurse.[8]
[8] Appeal papers page 805.
On 3 May 2016 Dr Lee recorded his impression that Mr Hartanto had a pre-existing depression and anxiety and had accordingly assumed a patient/victim role. On 5 May 2016 Dr Lee recorded that Mr Hartanto had resigned from Vodafone.[9]
[9] Appeal papers pages 809 and 810 respectively.
On 27 May 2016, Dr Lee recorded that Mr Hartanto was “okay to do pre-injury duties,” although Mr Hartanto “has been down because a friend attempted suicide 2 days ago.”[10]
[10] Appeal papers page 811.
Clinical notes from St Vincent’s Hospital recorded Mr Hartanto’s admission on 2 July 2016 as a result of a significant trauma he had suffered when his drink was spiked by his date. Mr Hartanto was so affected that the police were called and an investigation begun. Mr Hartanto was hospitalised until 7 July 2016 and made no mention of the accident in Koh Samui nor of any perceived bullying or harassment by his employer.[11]
[11] Appeal papers pages 887 and following.
The MA noted a reference to an overdose in 2012, which Mr Hartanto denied, and there was also documentation that Mr Hartanto had also been suicidal from when he was 12 years old, also denied. The MA said:
“...It is evident that his treating clinicians formed the view that Mr Hartanto suffered personality disorders of the histrionic, narcissistic and borderline types. Personality Disorder by definition represents a condition dating from adolescence or early adulthood and, accepting the validity of these diagnoses, it is evident that Mr Hartanto was psychiatrically compromised prior to the subject incident.
Considering the available information it is appropriate to accept that Mr Hartanto’s pre-existing diagnosis of Personality Disorder of the histrionic, narcissistic and borderline types produced impairment with respect to his ability to form and sustain significant relationships. This is based on his account of the absence of any enduring intimate relationship and the difficulties that he encountered in maintaining satisfactory relationships with family (notwithstanding their part in relationship difficulties). It is apparent that the sexual assault that occurred subsequent to the subject incident produced a deterioration given that he was considered psychiatrically fit for work prior to this incident and that there was a deterioration thereafter such that he could not sustain employment and was found to be unfit for work.”
In reporting his findings on physical examination, the MA said[12]:
“…He exhibited a flat affect and on a couple of occasions during the assessment appeared to be on the verge of tears. His speech was of normal rate, tone and volume and he presented his account in articulate language. He appeared guarded in the information that he provided. He was noted to be tentative in the provision of personal information and he challenged the relevance of certain questions. Even when it was explained to him that a level of detail was required to understand his background and differentiate between the possible effect of past circumstances and the impact of the accident, he seemed to remain sceptical and cautious in the level of detail that he divulged….”
[12] Appeal papers page 42.
The MA found Mr Hartanto to be a “vague and reluctant historian” with regard to some aspects of his background. The MA said:
“There were inconsistencies between his account at interview and information derived from the documents. In some instances certainty could not be achieved as to the extent to which Mr Hartanto’s description of events should be preferred over the information contained within the documents.”
Submissions
Mr Hartanto firstly submitted that the MA had fallen into error as he had not referred to the specific portions of the evidence that the appellant thought were determinative. There had been a failure to “engage with or consider the information” in a further report by Dr Martin Allan dated 22 September 2020, when it was conceded that the MA had considered Dr Allan’s earlier report of 11 September 2019. It was submitted that the later report confirmed that the appellant had not improved since Dr Allan’s assessment of 22% WPI on 11 September 2019. It was submitted further that the later report had addressed Mr Hartanto’s pre-existing condition.
Similarly, it was alleged that the MA had failed to address a report by Dr Greg McLean dated 5 August 2020. Dr McLean was Mr Hartanto’s long-term treating psychiatrist whose findings, it was submitted, were relevant to the PIRS assessment. It was further submitted that the MA had erred in failing “to engage with or consider” Dr McLean’s clinical notes for the period 18 July 2018 to 28 August 2020.
Further error was alleged because the MA had failed to take into account the statements of Mr Hartanto dated 19 December 2019 and 10 September 2020.
Secondly, it was again submitted that the MA had failed “to take sufficient account of evidence” in respect of the report of Dr Allan dated 10 September 2020 and its finding of a 22% WPI which the MA noted whilst considering relevant documentation.
The same failing was alleged in relation to a report of Mr Hartanto’s treating Psychologist, Ms Lynette Tull, dated 28 June 2020, which the MA referred to the subject of Mr Hartanto’s pre-existing condition, but did not canvass the rest of her report.
The MA allegedly made an error of similar nature with respect to the report of Dr Allan dated 11 September 2019.
In the third place, Mr Hartanto alleged that the MA failed to take relevant history, as the MA “significantly focused” on Mr Hartanto’s pre-existing condition, which was disproportionate to Mr Hartanto’s complaints of limitations and restrictions relevant to the PIRS categories. We were advised that Mr Hartanto “raised concerns” in that regard. (We note in passing that factual assertions made within submissions have no weight unless there is supporting evidence.)
The fourth area of complaint was that the MA had failed to adequately explain his reasons for differing from the opinions and the contemporaneous evidence that had been referred to him. In this regard, Mr Hartanto referred to the requirement that adequate reasons be given in Vegan.[13]
[13] See also Jones v Registrar WCC [2010] NSWSC 481 per James J at [34].
Mr Hartanto then made submissions that the MA had failed to properly assess two of the PIRS categories, namely social and recreational activities, and concentration, persistence and pace.
With regard to the category of social and recreational activities, the appellant kindly referred us to the descriptors set out in the Guides for class 2 and class 3. He submitted that the MA had erred in not accepting that the opinion of Dr Allan class 3 assessment was appropriate.
We were also referred to both the opinion and the clinical notes of Dr McLean as to Mr Hartanto’s expressions of loneliness, lack of friends and anxiety. Ms Tull’s opinion of 28 June 2020 was also referred to, and those parts of Mr Hartanto’s statements which similarly expressed claims more appropriate to a class 3 categorisation.
This body of evidence was consistent and demonstrated that the appellant suffered a class 3 impairment in this category, it was submitted. Mr Hartanto did not attend acting school any more, he had lost all his friends and did “very little” during the day. His psychiatric injury had “thwarted” his attempts to form emotional attachments. Mr Hartanto only went out for treatment, which included attendance at his gym. We were referred to the recent Court of Appeal decision of Ballas v Department of Education (State of NSW)[14] in respect of which the appellant claimed the MA’s description of the gym activity as being applicable to this category offended the principle therein expressed.
[14] [2020] NSWCA 86 (Ballas).
With regard to the findings by the MA as to the appellant’s use of the Internet on Facebook and YouTube, it was submitted that a similar contravention of the principle in Ballas had occurred.
As to the category of concentration persistence and pace, the appellant again kindly set out the descriptors for class 2 and class 3 valuations. We were referred again to Dr Allan’s opinion of 11 September 2019 – this time in relation to his assessment of a class 3 in this category. Dr McLean’s views were also canvassed from both his report of 5 August 2020, and his clinical notes. Ms Tull’s report of 28 June 2020 was also referenced, as were Mr Hartanto’s self-serving comments within his statements.
The error made by the MA in this part of his assessment was said to be that he formed his view on irrelevant facts, and applied the wrong test by taking into account Mr Hartanto’s participation in the assessment. No explanation, it was asserted, had been given as to how such participation was evidence that Mr Hartanto was able to follow complex instructions or focus on intellectually demanding tasks. The appellant had said that he did not read or watch TV, that he could not remember lines and had ceased acting school as a result. He listened to audiobooks more than once because of his memory impairment.
The MA had accordingly not properly considered all the evidence available, nor, as we understood the submission, made a proper assessment during the interview. There had been a failure to provide adequate reasons as to why he differed “so dramatically” from the opinion of Dr Allan and indeed the contemporaneous history recorded by Mr Hartanto’s treatment providers.
The next issue raised concerned the deduction made pursuant to s 323 of the 1998 Act. We were referred to Pereira v Siemens Ltd[15] and the tolerably well-known principles expressed therein regarding the application of this section. We were also referred to Broadspectrum v Wills,[16] Elcheikh v Diamond Formwork (NSW) Pty Ltd,[17] Matthew Hall Pty Ltd v Smart,[18] and Cole v Wenaline Pty Limited.[19]
[15] [2015] NSWSC 113 (Pereira).
[16] [2019] NSWSC 2797 (Wills).
[17] [2013] NSWSC 365 (Elcheikh).
[18] [2000] NSWCA 284 (Hall).
[19] [2010] NSWSC 78 (Cole).
The appellant said that information relating to Mr Hartanto’s pre-injury life was well documented in the records available to the MA. These records demonstrated that Mr Hartanto was unimpaired and had not been diagnosed with any psychiatric or psychological condition, neither had he been prescribed or taken any medication in that regard.
The appellant acknowledged that a deduction could be made pursuant to the section if a pre-existing condition was asymptomatic, but submitted that the opinion of Dr McLean of 5 August 2020 should be preferred to that of the MA, in that Dr McLean expressed “very substantial doubt” that Mr Hartanto should be diagnosed as having a personality disorder.
Similarly, Ms Tull was of the same view on her report of 28 June 2020, and Dr Bisht, the specialist retained by the respondent, although initially finding there was no evidence of a personality disorder, on receiving further material from Dr Gary Lee GP, Ms Ami Sundara Ramn, Consultant Psychologist and Dr Michael Atherton, Psychiatrist, altered his opinion to find that there was such a background and that it was the main contributing factor to Mr Hartanto’s current symptoms. This alteration could be ignored, it was submitted, as the subsequent opinion adopted by Dr Bisht had been based on an incorrect interpretation of a clinical note by Dr Lee dated 5 April 2016. The documentation “well evidenced” that this note had caused an incorrect diagnosis of borderline personality disorder to be made about the appellant.
The appellant acknowledged that the MA had seen that clinical note, but submitted that his interpretation was erroneous and that there was no basis for the MA to assume that the reference to Mr Hartanto’s sister was in fact a reference to Mr Hartanto himself. In any event it was submitted that the MA had failed to give adequate reasons for disbelieving the content of that note.
In the light of the “significant paraphrasing” over two pages of the MAC relating to s 323, it was submitted that the MA had erred in reaching his conclusion to deduct 1/10th. Further error was alleged by the MA in that he failed to traverse Dr McLean’s reasons regarding the absence of any pre-existing condition. It was further submitted that the language used by the MA in discussing his reasons for making a deduction pursuant to s 323 could not fulfil the legal requirements.
The appellant was also critical of the language used by the MA in determining that there was a “general consensus” that Mr Hartanto suffered a prior psychiatric vulnerability sufficient to attract a formal diagnosis. The use of this term was not an accurate reflection of the evidence in view of the reasons put forward by the appellant. It was submitted that the use of the term “interpersonal compromise” did not satisfy the legal requirement for any deduction pursuant to s 323 (2). The MA was required to “prove” that Mr Hartanto’s pre-existing condition impacted the appellant sufficiently to justify a deduction. (We would again observe in passing that the MA is not required to “prove” anything; his duty is to use his clinical findings, his experience, his training and his expertise to assess a claimant).
Finally, citing Fire & Rescue NSW v Clinen[20] the appellant submitted that in any case the basis of the MA’s finding as to a pre-existing condition did not justify a deduction.
[20] [2013] NSWSC 692 (Clinen).
The respondent
The respondent replied that an MA was not bound to accept at face value the medical evidence referred to him, but was required to base his findings on the physical examination, his knowledge and his experience in accordance with the Guides. He was required to use his clinical judgement in the assessment process.
It was submitted that the allegation of failure by the MA to consider or sufficiently consider the evidence before him was unsustainable. The MA had embarked on a detailed review and consideration of the medical evidence before him, and detailed at length the relevant documentation in his “Summary of Relevant Documents.”
There was no obligation in the legislation that required an MA to specifically refer to all the evidence provided to him.
The assertion that no relevant history had been taken by the MA was at odds with the MAC itself, as its content showed that he had obtained a detailed history of Mr Hartanto’s presenting injury, treatment and current symptoms before he turned to the psychosocial history. Moreover, the MA was entitled to consider the clinical records referred to him and to ascribe to them such weight as the deemed appropriate.
The submissions regarding the appropriate class value to be ascribed in the PIRS represented no more than a difference of specialist opinion, and did not raise any appellable error, the respondent submitted.
Discussion
The MA produced a comprehensive and thoroughly researched MAC. He spent over four pages of his report considering the relevant documentation that was before him. He did not at any time indicate that his survey of the prodigious amount of evidence before him (there are over 2000 pages) was intended to refer to every document or opinion that was before him.
Failure to give adequate reasons
The criticism of the MA ‘s reasoning was that if he had properly considered the material referred to him, he would have accepted the evidence relied on by Mr Hartanto, and found that Mr Hartanto suffered a 22% WPI.
We have been invited to revoke the MAC on the assumption that the MA either missed vital evidence, or did not adequately consider it, thus offending the rule in Vegan as to the provision of adequate reasons. We decline to accept that invitation on a number of bases.
Firstly, as we indicated above, submissions that are not supported by evidence have no weight. The appellant has not referred to any eyewitness evidence that would confirm that the MA failed to consider the material before him. We apprehend that this contention is based on an assumption that, because the MA did not refer to a specific piece of evidence in depth or at all, he had failed to consider it. Such an assumption is highly speculative, and ignores the practice in this jurisdiction that MAs routinely do not mention evidence that is irrelevant. As submitted by the respondent, there is no legislative or other requirement for them to do so.
Secondly, there is a presumption of regularity that attends administrative actions. In Jones v The Registrar WCC [2010] NSWSC 48, James J said:
“36 In Bojko v ICM Property Service Pty Ltd[2009] NSWCA 175 the adequacy of reasons given by an Appeal Panel for not requiring a further medical examination of a worker had been challenged. The Court of Appeal held that the worker had failed to establish either of the grounds of appeal relied on. At par [36] Handley AJA, with whose judgment the other members of the Court agreed, said:
‘The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.”
At [50], His Honour noted that the presumption of regularity applied to an AMS (now an MA). An essential administrative action any MA is required to do is to read the evidence that has been referred to him. Presumptions are rebuttable, but mere speculation is no ground for doing so. The MA discussed in considerable detail the competing opinions and had clearly considered them.
Further, in Jones, James J also adverted to the position of an MA. At [49] he said:
“49 …… The [MA] was an approved medical specialist having the qualifications stated in the Medical Assessment Certificate. Under the [Guides] he was required to assess the degree of permanent impairment, by himself making a clinical assessment and by applying the diagnostic criteria…. He was not in a position of having to decide which of two conflicting bodies of evidence he should accept….”
We are accordingly satisfied that the MA provided adequate reasoning for his conclusions.
Mr Hartanto’s evidence
As will be seen shortly when discussing the PIRS, the pre-eminence of the clinical observations by an MA in this field of medical science cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation are very much matters for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. This includes an assessment as to the credibility of the claimant.
The MA did not find Mr Hartanto to be a credible historian. Having read the material referred to him, and having interviewed Mr Hartanto, the MA expressed some reservations about what he was told. A significant part of the assessment in psychiatric cases involves an evaluation by an MA of the weight to be placed on statements made by a psychiatrically impaired claimant.
It is always possible that a person affected by a psychiatric condition might make statements which he/she comes to believe are true, but about which other independent contemporaneous evidence casts some doubt. The inconsistencies noted by the MA were recorded, and the MA expressed some doubt about the veracity of Mr Hartanto’s assertions. The MA listed the contradictions in Mr Hartanto’s presentation, and he considered Mr Hartanto’s statement of 19 December 2019, explaining the inconsistencies that were contained therein.
In particular the MA referred to the admission by Mr Hartanto to St Vincent’s Hospital on 2 July 2016, and that before that time he was assessed as being fit to return to work following recovery from the lacerations. The evidence shows that Mr Hartanto obtained further employment with Bupa from September 2016, but because of his deteriorating condition, was unable to perform any work after May 2017. The MA considered that a further cause for Mr Hartanto’s condition might well have been the trauma of his assault on 2 July 2016.
The contemporaneous notes of Dr Lee support that view. As indicated, Dr Lee first saw Mr Hartanto to treat his physical injuries. When his recovery got to the stage where he was fit for pre-injury duties, there had been no complaint of any psychological sequelae to the significant lacerations. It had, however, been noted that Mr Hartanto had been depressed about a number of things, including an attempted suicide by a friend, concern for his sister, and indeed that Mr Hartanto’s ambition of going to the US to be an actor had been delayed. As a result of these matters, Dr Lee said that he referred Mr Hartanto to the Psychologist Ms Tull. There was no contemporaneous record of any distress over the remarks made by his manager in Koh Samui, nor of any distress that Human Resources had supported the manager.
We note further that the clinical notes of St Vincents Hospital concerning the assault of 2 July 2016 did not record any complaint regarding Mr Hartanto’s injury from Koh Samui. Thus the conclusion that that the sexual assault of 2 July 2016 may have been of greater relevance than suggested by Mr Hartanto was open to the MA.
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[21] 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.”
[21] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[22].
[22] 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[23] 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 clas66s of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[24]. 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)
[23] [2017] NSWSC 887 (Ferguson).
[24] [2015] NSWSC 633 (Jenkins)
In Glenn William Parker v Select Civil Pty Ltd,[25] 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])…..”
[25] [2018] NSWSC 140 (Parker).
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 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 MA 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 Ballas the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (“scale”), and failure to do so would result in appellable error.
Social and recreational activities
The appellant submitted that the class value for the category social and recreational activities should have been assessed as class 3 rather than the class 2 given by the MA.
In his schedule, the MA said:[26]
“Mr Hartanto attends the gym. Although this has a recreational quality, he stated that it is at least in part for psychological benefit that he goes. He spends time on Facebook and YouTube. He engages in sexual encounters through Grindr. He goes out for meals.
Accepting his account that this represents a reduction in the level of social and recreational engagement, it is appropriate to conclude that he is mildly impaired in this
area by virtue of his psychiatric condition.”
[26] Appeal papers page 49
Table 11.2 provides the following descriptors:
“Class 1
No deficit, or minor deficit attributable to the normal variation in general relation: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively engaged with these.Class 2
Mild Impairment: occasionally goes out to such events eg. without needed 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.”
The appellant’s submissions simply referred to those portions of the evidence that supported the case rejected by the MA. The expressions of support by the various clinicians relied on accepted at face value Mr Hartanto’s complaints. The MA did not accept all of Mr Hartanto’s complaints, and explained why he did not. Whilst it was submitted that Mr Hartanto did not go out often except when necessary for treatment, the MA found that his lifestyle was somewhat more expansive, and again explained his reasons.
The appellant relied on the decision of Ballas to demonstrate error the part of the MA in this category. In that case, 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 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, an MA 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 ass0.igning 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.”
We are satisfied that Mr Hartanto’s practice of going to his gym can be categorised as a social and recreational activity. We note the submission that Mr Hartanto’s motive for attending the gym was treatment for his condition, but nonetheless such activity is consistent with a recreational activity that is common in the community and is a social activity in that many people usually frequent gyms. It may be contrasted with the solitary nature of a person playing poker machines alone. The MA did not accept Mr Hartanto’s assertion that his attendance was solely for the psychological benefit it gave Mr Hartanto, a conclusion that was open to him.
Similarly the conduct of people using the Internet on Facebook and YouTube is also consistent with their social and recreational activity. There can be no doubt that the use of the Internet in such ways is a popular social activity used in the general population.
We would also note that the other conduct described in this category is inconsistent with a class 3 assessment. Mr Hartanto did not need a support person when he went out, and his activities could not be described as being “quiet and withdrawn.”
Concentration, persistence and pace
The appellant submitted that the MA erred in finding a class 2 value, and that a class 3 evaluation was more appropriate. The MA said:[27]
“Mr Hartanto reported impairment of concentration such that he cannot read a book and such that he has to listen to audio books. He nevertheless participated in an interview of in excess of one hour’s duration demonstrating intact memory and demonstrating no deficits with respect to concentration over that time. Mr Hartanto has no demands on him that require persistence and pace. He did however describe preparing meals in an organised fashion and he described participating in a consistent daily routine. Taking into consideration his subjective impression and the objectively demonstrated cognitive functioning at interview, it is appropriate to conclude that he is mildly impaired in this area.”
[27] Appeal papers page 50
Table 11.5 of the Guides provide:
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 headaches.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 appellant again relied upon that part of the evidence that supported the awarding of a class 3 evaluation. The MA was criticised for making a comparison with Mr Hartanto’s acuity and stamina during the interview with the requirements of a class 2 award. However, such a finding was available, given the clearly enunciated reservations the MA expressed regarding Mr Hartanto’s credit. Whilst it was argued the actions of the MA making such an assessment was an error and involved the application of a wrong test, the task of an MA is to use his clinical judgement in making such judgements. The observations by an MA during the interview can be a relevant factor in this particular category. There is no error in the approach taken by the MA in drawing an inference from his interaction with the claimant that he was able to follow complex instructions and focus on intellectually demanding tasks.
Accordingly, the appellant has established no more than a mere difference of opinion about which reasonable minds might differ. Given the thorough and exhaustive attention the MA has demonstrated in the preparation of this assessment we are satisfied that he has carefully considered the evidence before him, and paid particular attention to the complex nature of Mr Hartanto’s condition.
The deduction pursuant to s 323
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Mr Hartanto’s pre-existing condition
Mr Hartanto’s appeal concerned, in many forms, the finding by the MA that he suffered from a personality disorder that contributed to his current permanent impairment. The thrust of the appellant’s submissions was that the MA had laid too much emphasis on Mr Hartanto’s pre-existing condition.
We note Mr Hartanto’s statement that he did not have the disorder. The MA however was satisfied that Mr Hartanto had long since acquired that condition for the reasons we identified above. The MA took an extensive history of the development of Mr Hartanto’s personality. It is not necessary to repeat in detail the reasons for the MA’s finding that Mr Hartanto suffered from a borderline personality, which have been set out in detail above at 31-38.
Dr Lee recognised a pre-existing depression on 3 May 2016, and Ms Tull on 28 June 2020 described a pre-existing personality disorder characterised by persistent depression, anxiety and histrionic tendencies. Ms Tull acknowledged that this condition would make Mr Hartanto more susceptible to PTSD and would intensify its symptoms. In Clinen Campbell J defined the term “pre-existing condition” as follows, at [34]-[35]:
“34. The analysis of Giles JA in Smart, to which I have referred, supports a legal distinction between a medical condition and the circumstance giving rise to it. The meaning of ‘condition’ in ordinary language may extend to include a prerequisite to something else. The worker's exposure to sunlight in his youth, in that broad sense, is a pre-existing condition. But the word ‘condition’ in the present statutory context, in my judgment, has a more limited meaning. In the context of legal causation, as with the meaning of the phrase ‘due to’, one may refer to any one of the necessary ‘conditions’ giving rise to a consequence as a cause, or prerequisite, of it. As a matter of causation, the worker's skin cancer is due to his exposure to sunlight, including during his youth before the commencement of his employment with the employer. But causation is not the presently relevant context.
35. The context here is provided by s 323 and arises from the juxtaposition of words ‘previous injury’, with ‘pre-existing condition or abnormality’. The natural meaning in that restricted context of ‘condition’ is ‘medical or like condition’ in the sense of a diagnosable, or established, clinical entity (authority omitted)…”
We would observe that Mr Hartanto’s pre-existing personality disorder is a diagnosable and established clinical entity. We are satisfied that the appellant’s pre-existing condition did create an impairment that contributed to the degree of permanent impairment resulting from the injury.
The degree of that contribution was difficult and costly to determine, however we agree with the MA that the pre-existing diagnosis would be expected to impact on mood, anxiety and interpersonal functioning, producing a degree of interpersonal sensitivity and vulnerability. Such impairment has contributed to Mr Hartanto’s current impairment. The statutory 10% deduction is accordingly appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 December 2020 should be confirmed.
14
0