Hartley v Tharawal Aboriginal Corporation
[2023] NSWPICMP 354
•26 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hartley v Tharawal Aboriginal Corporation [2023] NSWPICMP 354 |
APPELLANT: | Lynette Hartley |
| RESPONDENT: | Tharawal Aboriginal Corporation |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 26 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing concentration persistence and pace; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker appeals from the Medical Assessment Certificate of Medical Assessor Smith dated 2 February 2023.
The Medical Assessor assessed a 7% whole person impairment (psychological) as a result of injury on 1 February 2018 (deemed date). In doing so, he assessed a class 2 impairment in respect of the psychiatric impairment rating scale, Concentration, persistence and pace.
Ms Hartley alleges demonstrable error and the application of incorrect criteria with respect only to the assessment of Concentration, persistence and pace. She says that the evidence supported a class 3 impairment.
She relies on a supplementary statement dated 2 March 2023, in which she gives evidence of what was said at examination on 17 January 2023, taking issue with the correctness or completeness of what the Medical Assessor recorded. The statement was prepared after the issue of the Medical Assessment Certificate on 2 February 2023. Leave to rely on it is opposed.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
The parties made written submissions which have been taken into account. They are summarised below.
The appellant worker submits as follows:
(a) the Medical Assessor failed to take into account that fact that she has to wake early on workdays to prepare herself mentally, as explained in her statement dated 15 September 2022 at [5];
(b) he failed to take into account the fact that she uses a notebook and pen at work to aid memory and that she forgets why she has gone into a classroom, as she explained to Dr Prior on 19 July 2022;
(c) the Medical Assessor correctly recorded that she may not read more than half a paragraph of a book. This is inconsistent with a class 2 impairment;
(d) when he recorded that there was nothing on television that she liked, he omitted her explanation for that, which was that ‘she could not follow the story line due to her inability to concentrate’. In doing so, he omitted to have regard to relevant evidence.
(e) the Medical Assessor failed to have regard to her explanation that she no longer knits due to difficulties in concentrating. Those difficulties, and her inability to follow storylines in TV shows, are consistent with a class 3 impairment;
(f) the Medical Assessor incorrectly recorded that the worker completed a Certificate III and Certificate IV course. In fact, she has only completed the latter, in 2018, in the same year as injury was suffered. Attempts to complete courses since have been unsuccessful, as recorded by Dr Canaris in his report, and
(g) the combination of her finding it difficult to follow complex instructions which prevents her from knitting, her inability to concentrate when reading or to follow a story line and to follow a simple television show, justifies a class 3 impairment.
The respondent employer submits in summary as follows:
(a) the fresh evidence should not be admitted, because it does not satisfy the requirements of s 328(3) of the 1998 Act. Those requirements address the broad principles of the need for finality in litigation and the demands of fairness and justice: Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7; Lukacevic v Coates Hire Operations Pty Limited [2018] NSWCA 1122;
(b) the late statement is of no probative value, because whether she completed a Certificate III is immaterial by reason of the fact she completed the Certificate IV; her hours of work in 2018 do not derogate from the fact that she is now working 5.5 hours per day, 4 days per week; her statement of 15 Sep 22 at [14] made it plain that she loses track and cannot follow story lines; and the addition of an explanation for ceasing knitting is an attempt to cavil with the history taken by the Medical Assessor;
(c) the Medical Assessor exercised his clinical judgment in assessing the appropriate category of impairment. He had regard to all three of her previous statements (at page 7), and took a detailed history of her working hours, noted her successful retraining as a Student Learning Support Officer, her occasional research conducted at home, her managing to concentrate at work, and the fact that she ‘may not read more than half a paragraph of a book at a time’. He noted her difficulty concentrating as a result of rumination and worry;
(d) he had detailed regard to the views of Dr Canaris and discussed the basis for his differences of opinion, and
(e) in assessing a class 2 impairment, the Medical Assessor took into account all the relevant evidence, and exercised his clinical judgment, as he was obliged to do.
Fresh or additional evidence
With respect to the evidence contained in her supplementary statement of 2 March 2023, the appellant’s submissions do not address the requirements of s 328(3) of the Workplace Injury Management and Workers Compensation Act 1998. They are as follows:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
Her supplementary statement purports to correct the history recorded by the Medical Assessor in four respects:
(a) Ms Hartley did not complete both Certificate III and IV courses as recorded: she only completed a Certificate IV course over 6 months in the latter half of 2018;
(b) she was not employed at TAFE for one day per week, but rather for 1.5 hours per week;
(c) she told the Medical Assessor that there was nothing on television that interested her because she loses track and does not follow the story. She did not say there was nothing on television she liked, and
(d) when asked about reading and knitting, she replied, “I used to knit but I can’t concentrate anymore. I don’t do any of the hobbies that I used to”. This response was not recorded in the Medical Assessment Certificate.
Evidence as to what transpired at examination is not evidence that could reasonably have been obtained before examination. However, it is not evidence that is capable of proving demonstrable error, because it relies on evidence other than that contained in the Medical Assessment Certificate itself and the referral document: Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939. It is not relevant to the issue of demonstrable error.
With respect to an allegation that incorrect criteria have been applied, it is relevant to consider whether the statement has substantial prima facie probative value, plausibility and/or independent support: Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 per Hodgson JA [at 78]. There is no independent support for the evidence. The evidence contradicts the report of the Medical Assessor, and is therefore not supported by it. Accordingly, while we do not dismiss the evidence, we are not in a position to find that it has ‘substantial’ prima facie probative value or plausibility. It does not satisfy the test in Lukacevic. There is also a public interest in the finality of litigation, which admitting this evidence will not serve. In the absence of a reply from the Medical Assessor, there are issues of procedural fairness, which admitting the evidence will not satisfy: Lukacevic at [111]. In all the circumstances, we are not persuaded that it should be admitted.
For those reasons, it is unnecessary to consider the grounds of appeal which rely on the supplementary statement. They are set out in [7(d)] to [7(g)] above.
Class 2 impairment - criteria
In his PIRS Table, the Medical Assessor gave the following reasons for assessing a class 2 impairment in respect of Concentration, persistence and pace:
“Ms Hartley performs her role as SLSO and Aboriginal Liaison Officer four days per week, five and a half hours per day without any performance concerns. While she may fatigue easily or feel anxious at times, objectively her role requires attention, concentration, persistence and pace that is inconsistent with a Class 3 moderate impairment. She has retrained and completed standard courses since the injury.”
On mental state examination, the Medical Assessor noted relevantly:
“She was alert and oriented. Her intelligence was estimated to be in the average range. Her cognition was not formally tested. There were no overt cognitive deficits during the interview. Her insight and judgement were intact.”
Under the heading ‘Social activities/ADL’, he recorded:
“She said that she had to retrain for the Student Learning Support Officer job. She said the children work outside the classroom with her and a teacher supervises. She said at her previous job, she was working with four- to five-year-olds, working on pre-school readiness. She said she was employed by Tharawal because she had a four-year university degree. Ms Hartley said she believes that her qualifications were one of the things that annoyed her former employer.
She said despite the difficulties associated with working with people, she feels happier at work than not. She said she enjoys being able to work with children. She said that it has always been her passion and her current students are older and the demands of the job are less. She said she is given a list of children and what to do with them and a timesheet of when she has to be at the particular classroom. She said occasionally she has to do research at home depending on her students’ needs. She said the job is emotionally and physically draining and she sometimes comes home and sleeps after work. She said she is pushing herself all day to be positive and because she is desperate not to lose another job.
She said she manages to concentrate at work because she has to and she cannot afford to have a breakdown at work. She said because she is on playground duty for recess and lunch, she does not mix with other staff. She said [she] has one break a day after the other staff have had their break. She said if it is a bad day she will go and sit in her car. She said the staff room is empty when she has her break and she does not have to socialise with people.
She said [she] might try to read a book but may not read more than half a paragraph. She said she used to read a book every two to three days. She said she has not read a novel since 2019. She said she now has headaches and tires easily. She said there was nothing on television she liked.”
The injury was deemed to have occurred on 1 February 2018. The Certificate IV course was undertaken and completed in the last half of that year.
The Guidelines prescribe the following criteria for class 2 and 3 impairment with respect to Concentration persistence and pace:
Class 2
Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
The task of the Medical Assessor was to determine into which class the worker’s impairment best fit, having regard to the history taken, his findings on mental state examination on
7 January 2023, ongoing symptoms and the other evidence before him.A class 3 impairment might have been available to him, had he found that the appellant was unable to read more than newspaper articles, found it difficult to follow complex instructions, to type long documents, or to follow a pattern for making clothes, tapestry or knitting, or was impaired to a similar degree.
Similarly, a class 2 impairment was available if he found that the worker could undertake, for instance, a standard course at a slower pace, or could focus on intellectually demanding tasks for periods of up to 30 minutes, even if she then feels fatigued or develops a headache, or was impaired to a similar degree.
On mental state examination, he could observe no objective evidence of cognitive deficit. That is consistent with a class 1 or 2 impairment, though not alone determinative.
He reasoned that the appellant’s work activities required considerable concentration. No error is alleged in respect of his taking the cognitive aspects of her work duties into account. In our view, it was a reasonable inference that, having regard to the nature and duration of those activities, considerable concentration was required.
The degree of concentration required to cope with the considerable responsibilities which the job entailed, in our view, is not consistent with a person who is not capable of reading more than newspaper articles, or who finds it difficult to follow complex instructions. It is more consistent with a class 1 or 2 impairment.
The selection of a class 2 impairment as reasonably open on the evidence. We can identify no error.
With respect to the allegations that the Medical Assessor did not take into account her statement evidence that she wakes early to prepare herself mentally for work, or the history taken by Dr Prior on 19 July 2022 that she uses a notebook and pen at work to aid memory and forgets why she has gone into a classroom, a Medical Assessor is not required to identify and refer to each and every part of the evidence. The appellant’s statement was before him, as was Dr Prior’s report. We are satisfied that he took both into account. In any event, lapses of memory and the prudent use of available methods to assist memory, particularly in a professional setting where they are important for the proper discharge of one’s responsibilities, are not necessarily inconsistent with a class 2 impairment. They do not compel the assessment of a class 3 impairment.
Our attention is drawn to her instructions to the Medical Assessor, recorded under the heading “Social activities/ALD” that she “might try to read a book but may not read more than half a paragraph”. In isolation, this is consistent with the class 2 impairment. As indicated, the task of the Medical Assessor was to determine in which class the observed impairment best fit, having regard to all the evidence. For the reasons already given, we consider that the objective and other evidence before the Medical Assessor was consistent with a class 2 impairment, even if there was at least one aspect of the appellant’s impairment that was consistent with a class 2 impairment. We can identify neither error, nor the application of incorrect criteria.
As indicated, it is unnecessary to consider the grounds of appeal summarised in 7(d) to (g) above because the evidence on which they are based has not been admitted on appeal. Had the evidence been admitted, it would not have affected the outcome for the reasons which follow:
(a) even though an inability to follow a story line on television, a tendency to read part only of a paragraph in a book, and difficulties with knitting are consistent with a class 3 impairment, they constituted, or would have constituted, only part of the complex evidence, objective and otherwise, which the Medical Assessor was required to take into account. The category of concentration, persistence and pace is one where the assessment allows direct, objective e evaluation of the impairment by the Medical Assessor on mental state examination. Taking that into account, with the history obtained and other evidence supplied, the evidence relied on by the appellant would not necessarily have compelled the selection of a class 3 impairment, or precluded the selection of a class 2 impairment, which in or view would have remained reasonably open, and
(b) even accepting that the appellant studied for and completed a Certificate IV course in the latter half of 2018, but did not also complete a less advanced Certificate III course, this is evidence that she was capable of considerable concentration, persistence and pace in 2018. The task of the Medical Assessor however, was to assess her functioning as she presented in 2023, which he did.
Conclusion
For the reasons given, the Medical Assessment Certificate of Medical Assessor Smith is confirmed.
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