Health Services Union NSW v Rogers
[2024] NSWPICMP 577
•16 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Health Services Union NSW v Rogers [2024] NSWPICMP 577 |
| APPELLANT: | Health Services Union NSW |
| RESPONDENT: | Karen Rogers |
| APPEAL PANEL | |
| SENIOR MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 16 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal in relation to the Medical Assessor’s (MA) assessment of class 3 moderate impairment for the psychiatric impairment rating scale (PIRS) category of travel; evidence disclosed that the respondent worker was capable of travelling without a support person and therefore a class 3 assessment was in error; Ferguson v State of New South Wales; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 April 2024 Health Services Union NSW lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 March 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent suffered a psychological injury whist employed by the appellant.
The ambit of the present dispute is narrow. The grounds of appeal are limited to the Medical Assessor’s assessment of Class 3 moderate impairment for the psychiatric impairment rating scale (PIRS) category of travel.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because as there had been an adequate examination of the respondent worker with clearly articulated findings.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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.
There is no application to adduce fresh evidence.
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, below:
(a) The long term consequence has been that Ms Rogers is afraid to leave her home. She said she does not go anywhere unless she is accompanied because of anxiety. She said an exception to this was to attend medical appointments or the local shops on rare occasions (Page 3).
(b) She feels safe and only if she is locked in her house. She said her partner does the shopping and she feels anxious whenever she has to leave the house even when accompanied. She said her daughter will take her to the shops but they have to park close to an entry so that she can escape from the shopping centre if necessary (Page 3).
(c) In October 2021 she obtained a position as a part- time GIO telephone consultant which she can do from home. She said she has commenced on 20 hours/ week and this was gradually increased to 25 hours per week and is currently 30 hours per week. The other negative part of the job is the requirement to attend monthly training in Newcastle. She said she is able to manage this only because her manager is supportive and will escort her to and from the car park (Page 3).
(d) Ms Rogers said she continues to lock herself away in her home. She does not go anywhere alone except to her doctor (Page 4).
(e) Travel: Ms Rogers said she is able to drive locally and travels to see her general practitioner (GP) every month. She is not able to use any form public transport because of anxiety. She said is unable to use air transport for a similar reason. She does not feel safe to leave her home without a support person. She is moderately impaired (Page 5).
(f) She also meets DSM-5 criteria for agoraphobia because she is unable to use public transportation, be in enclosed spaces, stand in a queue, be in a crowd and be outside the home alone. She worries that escape might be difficult. The feared situations always provokes anxiety and they are actively avoided. The anxiety is out of proportion to the actual danger. It has lasted more than six months and has caused significant impairment (Page 7).
(g) Travel – 3 - Ms Rogers said she is able to drive locally and travels to see her GP every month. She is not able to use any form of public transport because of anxiety. She said is unable to use air transport for a similar reason. She does not feel safe to leave her home without a support person. She is moderately impaired (Page 11).
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor assessed the respondent as Class 3 for travel under table 11.3 of the PIRS of the guidelines incorrectly.
The appellant submits the assessment is inconsistent with the evidence before the Medical Assessor including qualified medical reports, the respondent’s statement evidence and her evidence provided directly to the Medical Assessor under clinical examination.
The appellant points out in paragraph 1.1 three of its submissions that the respondent was presently working for 30 hours per week at GIO. The appellant submits that there was no specific evidence to suggest how the respondent travelled to work and home each day. The Panel observes that this was addressed in the history obtained by the Medical Assessor at page 3 where the respondent says that she can do her job from home.
The appellant pointed out that the Medical Assessor noted that respondent was able to drive locally and travelled to see her GP every month.
The appellant refers to the medical opinion of Dr Malik in his report dated
23 November 2023, who assessed the respondent as a Class 2 impairment noting she was able to drive and when she was in the car she felt safe with her side doors being locked. She could travel without a support person to familiar places but in unfamiliar places she became anxious (See paragraph 1.14 of the appellant’s submissions).Dr Snowden, in his report dated 1 March 2023, assessed the respondent as a Class 1 impairment noting that she was able to drive alone and whilst in her car she felt at ease.
The appellant refers to the respondent’s signed statement dated 2 July 2023 at paragraph 13 which they say suggests the respondent can travel away from her own residence without a support person but that was rare. She said it was usually to attend go to appointments because otherwise her anxiety could be debilitating. In that same statement it was said that she “can travel from own residence which was rare”.
The appellant refers to the medical certificates of capacity that have been filed in the application and observes that they do not list any restrictions on the respondent’s driving, nor does the vocational assessment report dated 18 November 2020.
In reply, the respondent submits that the Medical Assessor has produced an informative well considered medical assessment certificate with significant detail outlining respondent workers behaviour, history and clinical symptoms arising from accepted at workplace injury.
The respondent submits that it is not necessary for the Medical Assessor to refer to all the evidence that is before him and must apply his own medical expertise an own experience. The medical assessment if it clearly contains factual information based on all the available medical information, resulting investigations, and the assessor's own history taking his clinical examination.
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 PIRS
The PIRS was 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[1] 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.”
[1] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[2]
[2] See 11.15 at Guides page 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[3] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. Campbell J, in dealing with whether there was error in the application of the categories and classes of the PIRS, identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the Approved Medical Specialist (AMS) unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
[3] [2017] NSWSC 887.
His Honour found that the Appeal Panel had fallen into jurisdictional error. He also 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’.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison J at [66] said:
“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...
32.The appellant submitted that the Medical Assessor incorrectly applied Table 11.3 of the PIRS in assessing Mr Berrier’s psychological impairment in relation to the category of travel
33.The examples under Table 11. 3 for “travel” in the Guidelines are:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population. Can travel to new environments without supervision.
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 Appeal Panel has considered all the submissions made by both the appellant and respondent. What is apparent after considering the evidence is that the respondent has the capacity to travel without a support person. This is illustrated in the fact that she is able to attend the Newcastle office for work, be it only once per month, on the condition that she is walked back to the carpark, presumably to drive her self home. This is also consistent with the histories given to Dr Malik and Dr Snowden who both took histories that the respondent was able to drive independently. Such a factual matrix makes a Class 3 classification ‘glaringly improbable’.
It should be observed that there is no evidence that there has been a change in the respondent’s psychological condition so that the histories taken by both Drs Snowden and Malik should be given little weight.
Whilst the respondent told the Medical Assessor that she did not feel safe to leave her home without a support person, the fact remains that she is capable to do so and in fact does do so. This is incompatible with a Class 3 assessment.
The fact that the respondent finds public and air transport unusable due to her anxiety would take her out of a Class 1 rating as the general population is able to use those modes of travel. The Appeal Panel therefore assesses the respondent has a having a class 2 impairment in relation to travel.
The ratings in ascending order are 222 233, median 2, final WPI is 7%.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W983/24 |
Applicant: | Karen Rogers |
Respondent: | Health Services Union NSW |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Wayne Mason and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Psychiatric | 13/7/15 | Ch 11, p54-60 | Ch14 | 7 | 0 | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
3
0