Hartnett v Secretary, Department of Education
[2022] NSWPICMP 16
•10 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hartnett v Secretary, Department of Education [2022] NSWPICMP 16 |
| APPELLANT: | Sue Hartnett |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL: | Member Mr William Dalley Dr Michael Hong Dr Patrick Morris |
| DATE OF DECISION: | 10 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against the assessment of impairment in respect of psychological injury in 2008 alleging deterioration, additional evidence, incorrect criteria and demonstrable error; evidence of deterioration confined to a letter from treating psychiatrist (the additional evidence) stating the worker had suffered an adverse reaction upon learning of the Medical Assessment Certificate (MAC); appellant also submitted assessments in respect of five of the six areas of function in the Psychiatric Impairment Rating Scale (PIRS) table was not available on the evidence; the appellant also alleged that the Medical Assessor (MA) had incorrectly applied section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in assessing “concentration persistence and pace”; Held - in respect of appeal based on “additional evidence”, the letter could not be said to constitute “additional evidence”; Lucacevic v Coates Hire Operations Pty Ltd applied; there was no other evidence of deterioration and the grounds of deterioration and additional information failed; the assessments with respect to the five areas of function complained of were open to the MA on the evidence and no error or application of incorrect criteria was demonstrated; however, assessment of the area of function “concentration, persistence and pace” was affected by error; that error was not a deduction pursuant to section 323 of the 1998 Act but it appeared to the Panel that the MA had attempted to apply section 65A(2) of the Workers Compensation Act 1987 to this area of function; it was not clear from the reasons in the MAC whether any deduction had been made; the Panel considered that this approach was inappropriate in the light of Mercy Connect Limited v Kiely; adopting that approach the Panel came to the same conclusion as the MA with respect to this area of function; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 October 2021 Sue Hartnett (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nick Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 September, 2021.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under section 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 ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Hartnett was injured on 9 September 2008 while performing playground duty as a high school teacher employed in the New South Wales Department of Education. Ms Hartnett was struck on the side of the head by a football and knocked down. As well as a head injury, Ms Hartnett was diagnosed as having suffered a psychological injury. She returned to work the following year but her psychological condition deteriorated and in 2015 she went off work and has not returned to the workforce. She continued to receive treatment by way of psychological counselling as well as psychiatric treatment and various medications.
Ms Hartnett was examined by a psychiatrist, Dr Prior, at the request of the insurer. Dr Prior examined Ms Hartnett initially on 13 July 2018 and subsequently on 14 April 2020. Reporting to the insurer in 2018, Dr Prior diagnosed Ms Hartnett as suffering Chronic Post-Traumatic Stress Disorder and co-morbid Major Depressive Disorder (in partial remission).
Dr Prior reviewed Ms Hartnett in April 2020 and noted that her symptoms remained largely unchanged. Dr Prior assessed Ms Hartnett as having 19% whole person impairment (WPI) as a result of the subject injury.
In October 2020 Ms Hartnett was examined by a psychiatrist, Dr Frank Chow, at the request of Ms Hartnett’s solicitors for purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). Dr Chow assessed Ms Hartnett in accordance with Chapter 11 of the Guidelines. He assessed Ms Hartnett as suffering moderate impairment (Class 3) in respect of each of the areas of function with the exception of employability which was assessed as totally impaired (Class 5). Dr Chow assessed Ms Hartnett accordingly as suffering 26% WPI.
Ms Hartnett’s solicitors made a claim for lump-sum compensation in accordance with Dr Chow’s assessment. The dispute as to the extent of Ms Hartnett’s impairment was referred to a Medical Assessor, Professor Nick Glozier, who assessed Ms Hartnett on 15 September 2021. The Medical Assessor assessed Ms Hartnett as having 8% WPI as a result of the subject injury.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was material available to the Panel to enable the Panel to review the MAC and the supporting evidence and determine the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit a report of the treating psychiatrist, Dr Russell Hinton dated 20 October 2021. The appellant submits that the evidence is relevant to demonstrate that Ms Hartnett has suffered a deterioration since the MAC which has, in turn, increased her level of impairment or establishes that she has not yet reached maximum medical improvement. The appellant submits that the evidence was not available and could not reasonably have been obtained because it postdates the MAC.
The respondent submits that the evidence should not be received as having no substantial prima facie probative value and could not be said to constitute “additional relevant information”.
The Appeal Panel determines that the evidence should not be received on the appeal because it does not constitute “additional relevant information”.
The report under consideration is addressed to the general practitioner and is follows:
“I reviewed Sue today. She is really struggling following receiving an 8% whole person impairment from the Workers Compensation Commission doctor who examined her recently. Sue remains in a very depressed and anxious state.
She needs hospital admission for a full assessment of her mental state, a full assessment of the risk issues, a complete review of her medications, and the provision of intensive group one-to-one psychological therapy. I would be most grateful if you would furnish Sue with a referral letter as it is seen as a conflict for me to refer my own patients for inpatient stays at Lakeside Clinic”.
Dr Hinton further notes that he has sent a copy of the letter to the workers compensation insurer “to request funding for hospital admission”, estimating that Ms Hartnett would need four to six weeks in hospital.
The evidence available to the Medical Assessor and the Panel included a report by Dr Hinton dated 8 January 2019. In that report Dr Hinton described his treatment of Ms Hartnett in the year since the referral by her general practitioner in March 2017. Dr Hinton noted that he had discharged Ms Hartnett from his care and said “This report should be read with knowledge that I discharged Ms Hartnett on 7 March 2018 and have had no contact with her since.”
It appears from the report of the Medical Assessor that Ms Hartnett had more recently re-established contact with Dr Hinton prior to the MAC examination.[1]
[1] MAC, page 3.
As noted by the respondent, Hodgson JA in Lucacevik v Coates Hire Operations Pty Ltd[2] (Lucacevik) said:
“Having regard to the matters I have set out, in my opinion it would be reasonable for an AP [Appeal Panel] not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[2] [2011] NSWCA 112 at [78] (Handley JA agreeing, Giles JA contra).
The appellant submits that the later report of Dr Hinton establishes a deterioration in the condition and a further examination by a Medical Assessor member of the Panel may disclose a greater degree of impairment than that assessed in the MAC.
The Panel does not accept that the opinion of the treating psychiatrist to the effect that Ms Hartnett appeared to be “really struggling” and remained “in a very depressed and anxious state” following publication of the MAC, should be accorded any substantial weight in establishing that Ms Hartnett had suffered a deterioration in her condition since the MAC examination. Dr Hinton specifically notes that Ms Hartnett “remains” in a depressed state, suggesting that there has been no such change.
The Panel takes into account that admission of the further report would require the grant of leave to the respondent to obtain its own updated report with attendant delay. The submissions of the appellant give rise to a similar situation to that discussed by Hodgson JA in Lucacevik in that the appellant seeks to achieve a further examination of Ms Hartnett solely upon the basis of a report that Ms Hartnett has demonstrated an adverse reaction to the MAC.
The report dated 20 October 2021, which is sought to be introduced into evidence, does not directly address the issue of whether there has been a deterioration in Ms Hartnett’s condition since the Medical Assessor’s assessment in September 2021 nor whether such deterioration has led to an increase in the level of impairment assessed in accordance with the Guidelines. The relevance of the report is confined to suggesting the existence of a deterioration in Ms Hartnett’s condition.
Having regard to the extremely limited probative value and the likely delay occasioned by the need to afford procedural fairness to the respondent, the Panel is a view that it is not appropriate to admit the report.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the Medical Assessor has fallen into demonstrable error in assessing Ms Hartnett with respect to five of the six areas of function addressed in Chapter 11 of the Guidelines and has failed to appropriately assess the evidence in accordance with the criteria set out in the Guidelines.
The appellant also submits that Ms Hartnett’s condition has deteriorated resulting in an increase in the degree of permanent impairment or, suggesting that Ms Hartnett has not reached maximum medical improvement.
In reply, the respondent submits that the Medical Assessor has appropriately applied his clinical judgement to the evidence available to him and no error or application of incorrect criteria is made out. The respondent submits that the recent report of Dr Hinton does not constitute “fresh evidence” and there is no evidence of a deterioration in Ms Hartnett’s condition capable of supporting appeal based on that ground.
FINDINGS AND REASONS
The procedures on appeal are contained in section 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[3] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[3] [2006] NSWCA 284.
Although the appeal is formulated as relying upon each of the four grounds set out in section 327(3) of the 1998 Act, the appellant’s submissions do not address the admissibility of the report of Dr Hinton dated 20 October 2021 except insofar as it provides evidence in support of the ground in section 327 (3) (a); “deterioration of the worker’s condition that results in an increase in the degree of permanent impairment”.
As noted above, the Panel does not accept that report of Dr Hinton should be admitted so as to provide a basis for an appeal under section 327 (3) (a). The report sought relied upon does not, of itself, cast any doubt upon the validity of the assessment process performed by the Medical Assessor and the only possible relevance goes to the ground of deterioration.
That report has not been admitted into evidence and there is accordingly no basis to an appeal pursuant to section 327(3)(a) or (b). The appeal based on those grounds must fail.
The submissions of the appellant address five of the six areas of function required to be considered pursuant to Chapter 11 of the Guidelines. It is appropriate to consider each of the areas of function addressed by the appellant individually, bearing in mind that Chapter 11.12 of the Guidelines 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.”
Self-care and personal hygiene
The Medical Assessor assessed Ms Hartnett as suffering mild impairment (Class 2) in respect of this area of function. The Medical Assessor provided his reasoning for that decision:
“She reported many years of managing her own self-care and bringing up her two boys doing all of their care as well. She has now moved in with her partner and continues to undertake chores, look after herself on a daily basis, prepare food and shop, although he does cooking because he is better at it. There is no indication over the years that she has been unable to live independently or show any significant pervasive impairment in self-care.”
In his report the Medical Assessor noted that Ms Hartnett’s domestic circumstances had altered in that she no longer looked after her two sons and had moved in with her long term partner. The Medical Assessor reported: “When she was living with the boys, she said that although they washed their own clothes and might help shopping, she was responsible for all the rest of the home care. Now she has moved in with Shane, he tends to do more of the cooking because he is a good cook.” The Medical Assessor noted that, upon examination, Ms Hartnett appeared to be “well-kempt”. He noted “Her appetite has plateaued although she has reported putting on weight over the years with reduced activity.”.
The Medical Assessor noted that Dr Prior had assessed Ms Hartnett as moderately impaired in respect of this area of function. The Medical Assessor commented:
“He [Dr Prior] appears to have seen her when she was slightly more symptomatic and more impaired than she described to me today, as a result of which I disagree with some of his classes. In terms of self-care and personal hygiene she reported many years of managing her own self-care and bringing up two boys doing all of their care as well. She has now moved in with a partner and continues to undertake chores, look after herself on a daily basis, prepare food and shop, although he does cooking because he is better at it. There has been no indication over the years that she has been unable to live independently or shown significant pervasive impairment in self-care that would meet the criteria for a moderate impairment.”.
The Medical Assessor noted that he disagreed with the assessment of Dr Chow in respect of this area of function for similar reasons.
The appellant noted the descriptors provided in respect of this area of function:[4]
“Class 2: Mild impairment: Able to live independently; looks after herself adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.
Class 3: Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
[4] Guidelines, Table 11.1.
The appellant noted the basis of Dr Chow’s assessment of moderate impairment in this area of function; “She is in pyjamas most days. She is not showering regularly. The house is a mess and she needs her boys to help with house chores and grocery shopping.” The appellant pointed to the statement of Ms Hartnett to Dr Prior where she said that she did not wash her hair as frequently as she used to before, doing it now ‘every 4 to 5 days now because I’m lazy and lack the motivation’.
The appellant submitted that this evidence demonstrated that it was not open to the Medical Assessor to place Ms Hartnett within Class 2 with regard to this area of function.
The appellant noted the reasoning of Harrison AsJ in Parker v Select Civil Pty Ltd[5] “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 a statutory sense.”
[5] [2018] NSWSC 140 at [66].
The Panel accepts that it was open to Dr Chow to assess Ms Hartnett as having a moderate level of impairment respect in this area of function, if weight is placed upon the role of Ms Hartnett’s sons and assisting with maintenance of the home. However, considering all the evidence, the Panel is satisfied that the Medical Assessor did not fall into error in assessing Ms Hartnett as falling within Class 2, mild impairment.
The evidence establishes that Ms Hartnett for years has been managing a household comprising herself and her two sons. She has maintained a reasonable degree of self-care over a lengthy period of time. Although Ms Hartnett has had assistance from her sons and is currently receiving assistance with cooking from her partner, the Panel does not accept that she could not live independently without regular support. It was open to the Medical Assessor on the evidence before him to assess Class 2, mild impairment, in respect of this area of function
Travel
The Medical Assessor assessed Ms Hartnett as having mild impairment in respect of this area of function. The Medical Assessor reported: “She travelled weekly many kilometres to see her brother on her own pre-Covid as well shopping locally and going out for walks and dog walking.”
When recording the activities of daily living reported by Ms Hartnett, the Medical Assessor relevantly noted that, prior to Covid restrictions Ms Hartnett had regularly driven to visit her brother on a weekly basis. He reported “She thinks she is okay driving but others suggest she is not good. She gets anxious if she has to go somewhere new and so gets people to go with her but is comfortable driving in familiar and regular places, although if there is too much traffic can be over aroused.”
The Medical Assessor disagreed with Dr Chow who had assessed Ms Hartnett as falling within Class 3, moderate impairment, in respect of this area of function.
Dr Chow noted: “She is able to travel. She needs to travel with a companion dog or children. She mostly stay-at-home and she does not go out much.” The Medical Assessor did not consider that that description was consistent with the criteria for inclusion in Class 3.
The appellant noted the descriptors for this area of function in Chapter 11 of the Guidelines:
“Class 2: Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
The appellant submitted assessment of mild impairment was inconsistent with the observation in the MAC regarding Ms Hartnett’s attitude to driving. The appellant pointed to Dr Chow’s report that Ms Hartnett needed a companion dog or her children with her to be able to drive. Dr Chow noted that Ms Hartnett preferred to go shopping at night when it was quieter and “sometimes experienced panic phenomenon when travelling in a car”.
The appellant noted “Dr Prior has assessed the appellant on behalf of the respondent as class 3 in respect of self-care and personal hygiene (ARD 48)”. It is unclear how this submission relates to assessment of travel. The Panel notes that Dr Prior reported:
“She is able to leave home without a support person. She drives to her non-live in partner’s place ten minutes away on a regular basis. She reported that she always travels with her dog in her car. She reported that since the coronavirus outbreak she will drive alone to do the shopping because she does not expect the boys to expose themselves to the risk of coronavirus. She currently drives to the shops once a week on average. She reported that a son drove her here today, a journey of over an hour. She reported that she will take the dog in the car to the beach and walk the dog along the beach by herself. Prior to the coronavirus lockdown she was doing this approximately three times a week. She reported that when she does go shopping she avoids busy times and goes at night when it is quieter. She reports that she has sometimes experienced panic phenomena were travelling in a car.”
The Panel is satisfied that, given information available to the Medical Assessor as to this area of function, it was open and appropriate for the Medical Assessor to assess mild impairment (Class 2). Although the Panel accepts that Ms Hartnett may suffer from anxiety when driving, it could not be said that she cannot travel away from home without a support person. The Panel considers the role of a “support person” is markedly different to support provided by a companion animal. The former can provide reassurance and advice and, if required, would be able to handle a situation where Ms Hartnett was unable to continue with her journey. There is no evidence of any such incident having occurred in the area familiar to Ms Hartnett. Ms Hartnett is accordingly appropriately assessed as falling within Class 2, mild impairment.
Social functioning
The Medical Assessor assessed Ms Hartnett suffering mild impairment (Class 2) in respect of this area of function. He reported: “Although her marriage broke down in 2009/10, she has then established a new relationship which she has maintained for nine years, has moved in with him, continues to have a group of close friends who she’s in contact with.”
In his report the Medical Assessor noted that Ms Hartnett “maintains friends with a small group she has known from school but generally by phone now in part due to their lives and also her withdrawal over time.” He noted that she was not involved in any church or community activities but had participated in art classes and an earlier time.
The appellant noted the descriptors provided in Chapter 11 of the Guidelines:
“Class 2 mild impairment: existing relationships are 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.
Class 4: Severe impairment: unable to form or sustain long-term relationships. Pre-existing relationships ended (e.g. lost partner, close friends). Unable to care for dependents (e.g. own children, elderly parent).”
The appellant noted that Dr Chow had assessed Ms Hartnett as falling within Class 3, moderate impairment reporting: “She tries to see her brother who has a disability, once a week and speaks to aunt (sic) once a week. However, she has lost most friendships and has very limited contact with any friends left. Her marriage broke down in 2009.”
The appellant submitted that the Medical Assessor had failed to give appropriate weight to Ms Hartnett’s separation from her husband and divorce, her statement that she was unable to undertake pre-accident social activities and had lost most friendships. These considerations, it was submitted, warranted assessment in Class 3 and the Medical Assessor had fallen into demonstrable error in assigning Class 2 to this area of function.
The Medical Assessor noted the breakdown of Ms Hartnett’s marriage in 2009 or 2010. However, the Medical Assessor also appropriately noted the development of a new successful relationship which had subsequently developed to the point where Ms Hartnett was now living with her new partner. That relationship having been in existence for many years at the time of assessment. The Medical Assessor also recorded the continuing relationship with a small group of former school friends.
The Panel accepts that the Medical Assessor as required by the Guidelines to assess Ms Hartnett at the time of his examination[6]. The Medical Assessor appropriately noted a breakdown of the marriage some 10 years earlier but gave significant weight to the development of the new relationship. The Panel is of the view that it was open to and appropriate for the Medical Assessor to assess Ms Hartnett as suffering mild impairment in regard to this area of function. The demonstrated ability to develop a new long-term relationship and the maintenance of long-term friendships is, in the view of the Panel, inconsistent with a moderate impairment.
[6] Guidelines, Chapter 1.6.
Concentration persistence and pace
The Medical Assessor assessed Ms Hartnett as falling within Class 2, mild impairment, in respect of this area of function. In the PIRS table the Medical Assessor stated his reasons:
“The cognitive problems predated the onset of any psychiatric disorder and were primarily attributable to the head injury and post-concussion syndrome. Even today, she displayed no overt cognitive difficulties and was a consistent and detailed historian. She reports problems with persisting at some activities but can binge watch TV shows.”
The Medical Assessor recorded his findings on mental state examination:
“There was no formal thought disorder and although she displayed some occasional lack of specificity about dates from over a decade ago, this is within the normal parameters. There was no difficulties with focusing and concentration and she provided a very detailed history of not just of the injury which is probably over rehearsed, but many other aspects of the course of treatment and freely commented on specific contents of IME reports.”
The Medical Assessor noted the history of the original injury in 2008 when Ms Hartnett was struck on the head by a football or basketball while on playground duty giving rise to a diagnosis of post-traumatic stress disorder. The Medical Assessor recorded:
“The CT brain scan was normal. She returned to work but was noted to have neurological symptoms including cognitive difficulties, vertigo and headaches indicative of ongoing post-concussion syndrome. By a few weeks later she was experiencing anxiety symptoms, noted to be ‘feel disconnected from school and wanting to escape’. Again post-concussion symptoms were recorded including ‘mild cognitive dysfunction, confusion episodes, forgetfulness’. It was noted she had significant anxiety and agitation going to work in about November and felt unable to do so. This was attributed to cognitive difficulties which, as recorded by the GP, predated the onset of her psychological difficulties.”
The appellant noted the descriptors in Chapter 11 of the Guidelines in respect of this area of function:
“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 (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or netting.”.
The appellant noted that Dr Chow had assessed moderate impairment (Class 3), reasoning: “She has poor concentration and poor focus. She has not read a book for years. She cannot retain information. She only read 5 to 10 minutes and gets distracted.”
The appellant submitted that the Medical Assessor had fallen into demonstrable error or used incorrect criteria:
“…as the Medical Assessor has reduced the assessment for concentration persistence and pace due to pre-existing conditions but has failed to properly identify the proportion of the impairment is due to the pre-existing abnormality. As the Medical Assessor makes no specific deduction for pre-existing condition, the appellant submits that all cognitive problems should be assessed as due to the pleading injury [sic]”.
The appellant noted the reasoning of Campbell J in Ryder v Sundance Bakehouse[7] with respect to the appropriate approach to be taken to a deduction pursuant to section 323 of the 1998 Act.
[7] [2015] NSWSC 526.
The Panel is satisfied that the Medical Assessor has not fallen into the error of incorrectly applying a deduction pursuant to section 323 of the 1998 Act. The date of the subject injury referred for assessment was 9 September 2008. There was no suggestion of any previous injury or pre-existing condition or abnormality which would warrant a deduction pursuant to section 323.
The Medical Assessor’s reasons given for assessment of concentration, persistence and pace in the PIRS Table suggests that the Medical Assessor was giving consideration to the psychological consequences of the physical injury to the head, as required by section 65A (1) and (2) of the 1987 Act which provide:
“(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury”.
A “secondary psychological injury” is defined as “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”[8]
[8] The 1987 Act section 65A(5).
The impairment to be assessed by the Medical Assessor is that which resulted from the primary psychological injury on 9 September 2008. However, at the time that injury occurred, there was also a physical injury which appears to have been to the head and neck. The Medical Assessor concluded that secondary psychological symptoms were diagnosed as arising from that physical injury before the effects of the primary psychological injury were observed some weeks later.
The Medical Assessor wrote in the PIRS: “The cognitive problems predated the onset of any psychiatric disorder and were primarily attributable to the head injury and post-concussion syndrome. Even today, she displayed no overt cognitive difficulties and was a consistent and detailed historian.”
The Panel noted that the Medical Assessor made the point that Ms Hartnett had sustained a physical injury (a neurological condition, which can cause some cognitive impairment). The Medical Assessor noted Ms Hartnett’s cognitive problems were predominately neurological and neurological impairment is not assessable in the PIRS. The Medical Assessor stated that, at the time of his examination, there did not appear to be continuing cognitive impairments attributable or secondary to the neurological injury. Having considered those matters, the Medical Assessor advised her presentation was consistent with Class 2 impairment (mild impairment).
The Panel accepts that it was inappropriate for the Medical Assessor to make a deduction from a PIRS assessment in a particular area of function pursuant to section 65A (2). The appropriate course was to assess the overall level of impairment as observed on the day of examination and then consider whether any deduction is warranted pursuant to either section 65A(2) of the 1987 Act or section 323 of the 1998 Act[9].
[9] Mercy Connect Limited v Kiely [2018] NSWSC 1421 at [95]-[97]. For an example of an assessment where section 65A was applied by an Appeal Panel see Manly Fresh Pty Ltd v Bachal [2021] NSWPICMP 218.
The reasons provided by the Medical Assessor do not provide understanding of the extent of any deduction which the Medical Assessor may have felt it appropriate to make, if any, pursuant to section 65A in respect of this area of function.
The Panel accepts that the Medical Assessor fell into error in having regard to the effects of a physical injury (post concussion syndrome) when assessing a particular area of function without providing an assessment of the extent of that contribution to the overall level of impairment as measured by the PIRS.
The Medical Assessor’s conclusion that the neurological (post concussion syndrome) injury predated the psychological injury was also not open, given that the referral related to psychological/psychiatric injury which occurred on 9 September 2008, the same injurious event that gave rise to the neurological injury when Ms Hartnett was struck on the head by the soccer ball.
Error has accordingly been established and it is appropriate for the Panel to reassess this area of function in the light of the evidence. The Panel notes the reasoning of Dr Chow and that of Dr Prior who reported[10]:
“She described subjective cognitive difficulties. When asked about her concentration span for reading, she stated ‘it’s off and on; I can only read little bits.’ When asked about her concentration span for watching something on television or a movie she stated ‘I don’t watch much TV’. She could not quantify her concentration span for watching electronic media. She inferred that the multiple dints and minor accidents that occurred when she drives are due to concentrational difficulties. She stated ‘I’m just forgetful’. She reported that she uses memory aids because of this.”
[10] Report 19 July 2018.
Dr Prior noted that, in the course of his examination of Ms Hartnett, she was able to refer appropriately to references in earlier reports and had a good command of the relevant history. Dr Prior noted:
“Clinical tests of attention, concentration, orientation and short-term memory revealed slight slowing, with the appearance of increased effort required in the performance of tests of attention and concentration in that she looked intently to one side or performing these tests. She displayed a mild decrement on a test of short-term memory.”
Similar observations were noted by Dr Prior in his report of 16 April 2020. At the later examination by Dr Prior, the psychiatrist noted that Ms Hartnett was able to refer to his earlier report and corrected errors in portions of that report which she had detected. He noted a similar opinion with regard to testing of attention, concentration and short-term memory to that in his earlier report.
The situation with regard to Ms Hartnett and her partner has changed between the time that Ms Hartnett was assessed by Dr Chow and Dr Prior and her examination by the Medical Assessor. The Medical Assessor noted that she now was able to binge watch television series with her partner. Ms Hartnett was able to display attention to detail in the course of her examination by Dr Prior and the Medical Assessor. Having regard to these matters, the Panel is of the view that Ms Hartnett should be assessed as suffering mild impairment in respect of this area of function (Class 2). This is consistent with the test results noted by Dr Prior as well as the more recent history provided to the Medical Assessor.
The psychological effects of the physical injury no longer appear to play any part in the level of impairment assessed in the PIRS. There is accordingly no basis for a deduction pursuant to section 65A (2).
Employability
The Medical Assessor assessed Ms Hartnett as suffering severe impairment (Class 4) in respect of this area of function. The Medical Assessor provided reasons:
“Although I agree she would probably be unemployable on the open job market, as we have seen over the past few years and I have seen with my patients with severe disorders, they are able to earn money in a range of part-time and limited jobs e.g. dog walking and the regular attendance at her disabled brother would also indicate the potential to work some hours in a disability support function per week.”
The Medical Assessor noted in the MAC that Ms Hartnett had reported that she had not “attempted any courses or retraining because she feels she has a brain fog and that with her afternoon napping, which she does frequently, ‘who would employ me?’”.
The Medical Assessor noted the assessment of Dr Chow who assessed Ms Hartnett as Class 5, totally unfit for work. Dr Prior reported: “Due to the severity and chronicity of her indexed psychiatric diagnoses, I do not believe that Ms Hartnett is currently nor for the foreseeable future fit to return to any form of work.” Dr Prior noted that, since leaving work in 2015, Ms Hartnett had not engaged in any work in any capacity or performed voluntary work or undertaken any educational or training courses or sought assistance with jobseeking. He noted that Ms Hartnett felt that she would never return to the workforce because of her insomnia, cognitive difficulties, mood triggers, feelings of anger and tendency to be hypervigilant and crying episodes[11].
[11] report of Dr Prior dated 16 April 2020, Page 14.
The appellant noted the descriptors provided by Chapter 11 of the Guidelines:
“Class 4: Severe impairment: Cannot work more than one or two days at a time, this and 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: Cannot work at all.”.
The appellant noted the problems that Ms Hartnett had experienced in the workplace up to 2015 and the opinion of Dr Chow and Dr Prior to effect that Ms Hartnett had no capacity for work. The treating psychiatrist, Dr Hinton, had a similar opinion.
The Panel accepts that this is an area of function where minds may differ as to the appropriate classification. The Medical Assessor members of the Panel however agree, on the basis of clinical experience, that it was open to the Medical Assessor to assess Ms Hartnett as having some capacity for work, albeit limited in the extreme so that it would be appropriate to classify Ms Hartnett as having a severe impairment in this area of function rather than totally impaired (Class 5). The Medical Assessor members of the Panel accept that regular attendance by Ms Hartnett upon her disabled brother and the regular walking of her dog, are both evidence of activities that could be performed in a work role by Ms Hartnett.
Conclusion
The Panel accepts that error has been established with respect to assessment of the area of function “concentration, persistence and pace”. However, upon reassessment, the Panel is satisfied that the assessment by the Medical Assessor was appropriate on the evidence and in accordance with the Guidelines.
The other grounds of appeal have not been made out. For these reasons, the Appeal Panel has determined that the MAC issued on 24 September 2021 should be confirmed.
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