Hennessy v Northcott Supported Living Limited

[2023] NSWPICMP 581

DETERMINATION OF APPEAL PANEL
CITATION:	Hennessy v Northcott Supported Living Limited [2023] NSWPICMP 581
APPELLANT:	Tristan Damion Hennessy
RESPONDENT:	Northcott Supported Living Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	11 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred when assessing appellant’s impairment in social and recreational activities by taking into account matters that should have been considered under travel or under social functioning; whether MA’s rating of appellant’s impairment in concentration, persistence and pace was correct; discussion of Ballas v Department of Education (State of NSW); MA did not take into account irrelevant matters when assessing appellant’s impairment in social and recreational activities; MA’s rating of appellant’s impairment in concentration, persistence and pace was open to MA to make; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 3 July 2023 Tristan Damion Hennessy lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 June 2023.

2. 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, and

   ·        the MAC contains a demonstrable error.

3. 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.

4. Rule 128 of the Personal Injury Commission Rules 2021 (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 s328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

1. The appellant commenced employment in November 2017 as a disability support worker with Northcott Supported Living Ltd, the respondent. Due to the work he performed for the respondent until 13 January 2019, he suffered psychological injury. He was assessed by consultant psychiatrist Dr Richa Rastogi to have 22% whole person impairment (WPI) from his injury. Relying on that assessment, he claimed compensation from the respondent’s insurer under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment resulting from his injury.

2. The insurer then organised for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht, who in a report dated 14 September 2022 advised the insurer he assessed the appellant had 7% WPI. Dr Bisht further advised that he considered the appellant’s “injury is a combination of a primary injury as a result of the work place and secondary to the worker’s physical injury, that is, a shoulder injury”. Dr Bisht considered that 4% WPI of the appellant’s overall permanent impairment was due to his “primary work related injury”.

3. The insurer wrote to the appellant on 17 October 2022 notifying him under s 78 of the 1998 Act that it disputed he was entitled to the compensation he claimed from it. It advised him that under s 65A(3) of the 1987 Act he was only entitled to compensation for permanent impairment from his injury if the degree of his permanent impairment exceeded 15%.

4. The appellant thereafter initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 19 December 2022 (ARD).

5. A delegate of the President of the Commission referred the matter to the Medical Assessor, who issued the MAC, as said, on 5 June 2023, in response to that referral. In that, he certified he assessed the appellant had 11% WPI from his injury.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established and consequently, the Appeal Panel would be confirming the MAC. Hence, the Appeal Panel did not need to re-assess the medical dispute or correct any errors and consequently did not need to obtain any further clinical data.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

1. 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

1. The appellant’s appeal relates to the Medical Assessor’s assessment of his impairment in the Psychiatric Impairment Rating Scale (PIRS) categories of social and recreational activities and concentration, persistence and pace (cpp).

2. The history the Medical Assessor obtained relevant to his assessment of the appellant’s impairment in those PIRS categories included that the appellant spent time watching television and playing video games on a Play Station, which he could do for between 20 minutes and a couple of hours. The Medical Assessor noted that the appellant previously played rugby and was a rugby referee for numerous years, but has not engaged in these activities for a few years. The Medical Assessor noted the appellant went to the Gold Coast to see his family in March 2023 and then flew to Bali for a two week holiday with his best friend. The Medical Assessor noted that whilst in Bali, the appellant spent most of his time at a bar that his friend owns. The Medical Assessor noted that the appellant went to a pub a couple of months ago and became drunk and got into a fight. The Medical Assessor noted that the appellant does not go to the pub regularly. The Medical Assessor noted that the appellant plays poker, which he did every couple of weeks before his injury, but now does so less frequently. The Medical Assessor noted that the appellant plays at local poker tournaments and may do so every four months.

3. The Medical Assessor had regard to the statements the appellant had made that were attached to the ARD and noted that the appellant said therein that before his injury he played poker sometimes three to four nights a week. The Medical Assessor noted that the appellant said that prior to his injury he would go to a lot of social functions. The Medical Assessor noted that the appellant said that his concentration is now terrible and he finds it hard to read letters and emails.

4. The Medical Assessor noted that he conducted his examination of the appellant by video and that the assessment took 60 minutes. The Medical Assessor said that the appellant engaged well during the video assessment, that he exhibited no psychomotor slowing, and that he spoke spontaneously but was mildly restricted in his affect range and reactivity. The Medical Assessor said that the appellant provided a clear history and recalled a good amount of detail and that he remained attentive during the assessment and was not distracted. The Medical Assessor said the appellant exhibited no difficulties in alternating between topics and staying with topics. The Medical Assessor noted that the appellant maintained a normal speed and pace.

5. The Medical Assessor completed the PIRS rating form within the MAC, in which the Medical Assessor detailed and explained his ratings of the appellant’s impairment in the several PIRS categories. The Medical Assessor’s ratings and explanation for his ratings for the PIRS categories of social and recreational activities and for cpp were as follows:

Social and recreational activities	2	He attends regular social recreational activities and interacts with people. Overall, he has been attending less since his injury. Recent social and recreational activities include an overseas trip with a friend, social poker games every 4 months and visiting his friends to talk every few weeks. He is actively engaged and does not need a support person.
Concentration, persistence and pace	2	Mr Hennessy reported having reduced concentration. He can engage in intellectually demanding tasks for more than 30 minutes and dis mental state examination is consistent with 2.

1. The Medical Assessor’s rating of the appellant’s impairment in the PIRS categories of social and recreational activities, travel, social functioning and employability were respectively 2, 2, 3 and 5. The Medical Assessor noted that the medium class of his scores was 2 and that the aggregate was 16, which translated to 9% WPI. The Medical Assessor also considered the instruction in cl 1.32 of the Guidelines, and added 2% WPI for the effects of treatment; and hence the Medical Assessor’s certification that the degree of the appellant’s permanent impairment from his injury was 11% WPI.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that in Ballas v Department of Education (State of NSW)[2] the Court of Appeal “found that the meaning of social and recreational activities involved some degree of ‘interaction with others’ on a social and recreational basis and therefore did not include solitary activities”.

   [2] [2020] NSWCA 86 (Ballas).

3. The appellant extracted the descriptors in Table 11.2 of the Guidelines for a class 2, class 3 and class 4 impairment. The appellant submitted that it is “obvious” that Table 11.2 is directed to the kinds of activities that involve interaction with others because the descriptors for class 1 include being actively involved with clubs or associations, the descriptors for class 2 include being actively involved in dancing and cheering for favourite teams, and the descriptors for class 3 examples provided include rarely going out to events without a support person.

4. The appellant submitted that based on the authority of Ballas the Medical Assessor incorrectly applied the guidelines and made a demonstrable error when assessing his impairment in social and recreational activities because:

   (a)the Medical Assessor had regard to matters that fell within Table 11.4, that is social functioning, because the Medical Assessor relied on “matters of solitary activities and social friendships”;

   (b)the Medical Assessor had regard to matters that fell within Table 11.3, which relates to travel, because the Medical Assessor considered the appellant’s overseas trip, and

   (c)the Medical Assessor relied on the appellant’s participation in social poker games every four months and did not properly characterise or analyse this activity and did not investigate the duration of and the interaction by the appellant with other participants.

5. The appellant referred to the report of Dr Rastogi in which she assessed he had a class 3 impairment in the PIRS category of social and recreational activities. The appellant submitted that the Medical Assessor ought to have rated his impairment in the category of social and recreational activities as class 3.

6. The appellant submitted that the Medical Assessor ought to have assessed his impairment in cpp as class 3, rather than class 2. 

7. The appellant noted that the Medical Assessor did not indicate in the MAC that he had undertaken concentration tests with the appellant. The appellant submitted that the failure by the Medical Assessor to undertake those tests, or if he did undertake them, his failure to record the results of those tests was an error.

8. The appellant submitted that based on the findings the Medical Assessor made from examination and the Medical Assessor obtaining a history of his having difficulties with concentration and struggling with anxiety and irritability a rating of class 2 in cpp was warranted.

9. In reply, the respondent submitted that the Medical Assessor compared the descriptors within the relevant PIRS tables and determined “the best fit impairment on that basis”. The respondent submitted that the Medical Assessor’s assessment was reached by taking into consideration all the available evidence and information and applying his medical judgment based on his knowledge and experience.

10. The respondent submitted that the history the Medical Assessor obtained was that the appellant could undertake recreational activities without the need of a support person.

11. The respondent submitted that based on the evidence before the Medical Assessor, in particular the history he obtained and the appellant’s presentation at assessment, the Medical Assessor “was entitled to assess the appellant within class 2 with respect to his concentration, persistence and pace”.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. The Appeal Panel does not agree with the appellant’s submission that it was held in Ballas that social and recreational activities always require interaction by a worker with others and that any recreation in which a worker engages alone cannot be considered within the PIRS category of social and recreational activities. Ballas concerned a matter in which a delegate of the Registrar of the former Workers Compensation Commission was not satisfied based on the face of the application for appeal and the submissions the parties had made that at least one of the grounds for appeal specified in sub-section 327(3) had been made out and consequently the delegate, in accordance with s 327(4), did not allow the appeal against the medical assessment to proceed to an Appeal Panel. Bell P and Payne JA, with Emmett AJA agreeing, said at [100]:

   “The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities. This scale, it was argued, was directed towards an assessment of an injured worker’s interaction with other people, and not a solitary activity such as gambling on poker machines. As was put in the submissions to the Delegate, when one examined the examples that were given for classes 1-5 in Table 11.2 of the Guidelines, all involved some degree of interaction with others, to a greater or lesser degree and on a sliding scale. It was plainly arguable in our opinion that that was the case, and this being so, the requisite level of satisfaction under s 327(4), as explained earlier in these reasons, should have been held to have been met.

4. Accordingly, what the Court of Appeal held in that case was that it was arguable that conduct of a worker that is to be considered under the PIRS category of social and recreational activities needs to involve the interaction by the worker with another person in order that the conduct can be characterised as correctly falling within the PIRS category of social and recreational activities. The Court of Appeal did not hold that the conduct must involve interaction with others before it is to be considered under that PIRS category but rather because the worker in that case submitted that as part of the appeal against the Medical Assessor in that case, and because that particular submission was arguable, the matter should have proceeded to an Appeal Panel to consider the merit of the submission.

5. The Appeal Panel observes that cl 11.12 of the Guidelines provides descriptors of activities for the various classes available to a Medical Assessor to rate a worker’s impairment in the several PIRS categories.  They are examples only. They are not prescriptive and are intended only to provide guidance to a Medical Assessor when determining the extent of the seriousness of a worker’s impairment within each of the PIRS categories.[3] The Appeal Panel does consider that the examples listed within Table 11.2, which is the relevant table for social and recreational activities, are to be read such that a Medical Assessor when rating a worker’s impairment in social and recreational activity is limited to considering only activity in which a worker engages with others. Recreational activities such as surfing, running, playing a computer game, walking along a bush track, star gazing even, are some of numerous recreational activities in which someone may engage without the interaction of others. Such activity is rightfully considered under table 11.2.[4]

   [3] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65].

   [4] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [72]-[73].

6. What Ballas did establish is that a Medical Assessor when assessing a worker’s WPI must correctly characterise the conduct of a worker as falling within one or other of the PIRS categories.[5] That said however, the Appeal Panel does not accept the appellant’s submission to the effect that the Medical Assessor in this case, when assessing the appellant’s impairment in the category of social and recreational activities, incorrectly considered conduct of the appellant that ought to have been characterised as falling within the PIRS categories of social functioning and travel.

   [5] Ballas at [94].

7. The appellant’s trip overseas to Bali cannot, in the Appeal Panel’s view, be characterised as involving only one activity or one type of conduct. Insofar as the appellant was able to travel on a plane, that particular conduct should be characterised as relating to the PIRS category of travel. Insofar as the appellant whilst in Bali engaged in social or recreational activity, then that conduct is rightfully considered under the PIRS category of social and recreational activities. Similarly, insofar as the appellant engages with others in playing poker and entertaining himself with friends, then the playing of the poker and the entertainment is correctly considered under social and recreational activities.

8. In this case, the Medical Assessor noted that the appellant meets regularly with his friends when they imbibe alcohol. His gathering with his friends for the drinking of alcohol is a social activity and was rightfully considered by the Medical Assessor under the PIRS category for social and recreational activities. Further, as the Medical Assessor noted, the appellant during his most recent holiday to Bali spent most of the time at the bar. Again, the Appeal Panel considers that the Medical Assessor rightfully characterised the appellant’s holiday in Bali and socialising with others at a bar as conduct falling with the PIRS category of social and recreational activities.

9. The Appeal Panel considers that it was open to the Medical Assessor to rate the appellant’s impairment in the category of social and recreational activities as class 2, that is a mild impairment. As the Medical Assessor observed, the appellant does not need a support person to engage in social and recreational activities. The appellant is able to engage in social and recreational activities with other people and he participates in poker tournaments every four months. He was able to enjoy an overseas holiday recently. That accords with a class 2 rating.

1. With respect to the Medical Assessor’s rating of the appellant’s impairment in the category of cpp, the Appeal Panel does not accept the appellant’s submission that the Medical Assessor made an error by not undertaking concentration tests during his examination of him. There is nothing within the Guidelines that requires a Medical Assessor to do that and the Appeal Panel, which is an expert panel, considers that such tests are unreliable to indicate impairment because brief testing provides no information not already available to the Medical Assessor in the mental state examination of a worker and the tests can be easily manipulated by the examinee.

2. The Appeal Panel considers that for the reasons the Medical Assessor explained in the PIRS rating form for his assessment of the appellant’s impairment in the category of cpp it was open for the Medical Assessor to rate the appellant’s impairment in this category as class 2, that is mild. Further, the Appeal Panel observes that the Medical Assessor’s findings from his examination of the appellant included that over the course of 60 minutes during which the examination occurred, the appellant engaged well, had no psychomotor slowing, was able to speak spontaneously to provide a clear history with a good amount of detail and was attentive throughout and not distracted. The Medical Assessor observed that the appellant exhibited no difficulties in alternating between topics and staying with topics and maintained a normal speed and pace. That, in the Appeal Panel’s view, supports mild impairment of the appellant in cpp.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 5 June 2023 should be confirmed.