Henning v State of New South Wales - [2021] NSWPICMP 27

DETERMINATION OF APPEAL PANEL
CITATION:	Henning v State of New South Wales [2021] NSWPICMP 27
APPELLANT:	Christoph Henning
RESPONDENT:	State of New South Wales
APPEAL PANEL:	Member Marshal Douglas Professor Nicholas Glozier Dr Douglas Andrews
DATE OF DECISION:	18 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Assessment of permanent impairment from psychiatric injury; appellant worker submitted AMS erred with respect to the assessment of his impairment in the areas of social and recreational activities and concentration, persistence and pace and did not make his assessment on the basis of correct criteria because AMS did not have sufficient regard to his statement and did not reconcile his assessment with the assessment of his IME; Held- Appeal Panel considered AMS had regard to whole of the evidence and applied his clinical judgment to determine the significance of the matters raised in the evidence with respect to how they affected the appellant’s function; the Appeal Panel considered that the AMS provided sufficient reasons for his ratings and that the AMS’s ratings were open to be made by him based on what in his clinical judgement he considered were the significant matters; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2021 Christoph Henning (the appellant) lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Patrick Morris, who issued a Medical Assessment Certificate (MAC) on 7 December 2021At that time, Dr Morris was an Approved Medical Specialist of the Workers Compensation Commission (WCC).
The Appeal Panel observes that on 28 February 2021 the WCC ceased to be, and the Personal Injury Commission was established on 1 March 2021. In accordance with changes set out in Schedule 6 of the Personal Injury Commission Act 2020, an Approved Medical Specialist of the WCC is now known as a Medical Assessor, and an Arbitrator is now known as a Member. For the sake of clarity, the Appeal Panel notes that it will refer to Dr Patrick Morris using the acronym AMS, given that at the time he assessed the medical dispute and issued the MAC, he was an Approved Medical Specialist of the WCC.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with the State of New South Wales (the respondent) in 1986, working as a paramedic with the New South Wales Ambulance Service. Due to being exposed to numerous traumatic events during his employment that involved death and injury, he suffered a psychiatric injury.
His solicitors organised for him to be examined by psychiatrist Dr Ash Takyar, which occurred on 17 April 2020. In a report of the same date, Dr Takyar advised the appellant’s solicitors that he had assessed the appellant to have 22% whole person impairment (WPI) resulting from the appellant’s injury. The appellant’s solicitors then wrote to the respondent’s insurer on 21 May 2020 advising the insurer that the appellant claimed compensation for permanent impairment from his injury and compensation for pain and suffering. The appellant’s solicitors enclosed a copy of Dr Takyar’s report with their letter.
The respondent’s solicitors then arranged for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht. That occurred on 24 July 2020. In a report Dr Bisht provided to the respondent’s solicitors dated 2 September 2020, he advised that he had assessed the appellant to have 7% WPI from his injury.
On 11 September 2020 the respondent’s insurer, relying on the report of Dr Bisht, wrote to the appellant notifying him under s 78 of the 1998 Act that it disputed liability to pay him compensation for permanent impairment from his injury. It advised him this was on the basis that it considered his permanent impairment from his injury was 7% WPI which did not exceed the statutory threshold imposed by s 65A(3) of the Workers Compensation Act 1987 for him to be entitled to compensation for permanent impairment.
The appellant’s solicitors then registered with the WCC an Application to Resolve a Dispute (ARD), seeking the WCC determine the appellant’s claim for the respondent to pay him compensation. Given that there was a medical dispute between the appellant and the respondent regarding the degree of permanent impairment of the appellant from his injury, a delegate of the Registrar of the WCC issued a referral to the AMS on 13 October 2020 for the AMS to assess that medical dispute. As mentioned, the AMS issued the MAC on 7 December 2020. He certified the appellant’s degree of permanent impairment from his injury was 9% WPI.

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.
Based on its preliminary review, the Appeal Panel determined that it would not require the appellant to undergo a further medical examination. This is because for reasons explained below, the Appeal Panel came to the view that neither of the grounds of appeal on which the appellant relied has been established. The Appeal Panel cannot therefore revoke the MAC, and its power to require the appellant to be re-examined is not enlivened.[1]
[1] See NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

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 appellant’s appeal against the MAC relates to how the AMS rated his impairment with respect to his functioning with “social and recreational activities” and with “concentration persistence and pace”. The AMS classified the appellant’s impairment in each of those areas as mild. In Table 11.8 of the MAC, which is the “PIRS rating form”, the AMS provided these reasons for his ratings:
Social and recreational activities:
“Mild impairment. Mr Henning is less socially active than previously. He goes out for a coffee with his wife and friends about every third day. He visits his daughter who lives nearby once a week. He rides his motorbike by himself around his local area for about an hour every second day.”
Concentration, persistence and pace:
“Mild impairment. Mr Henning reports having reduced concentration. He said that he can only read for about 15 to 20 minutes before losing concentration. He is able to
ride his motorbike for about 30 minutes before taking a break and then to continue riding for another 30 minutes.”
The AMS noted that his assessment of the appellant’s impairment differed from the assessments of both Dr Takyar and Dr Bisht. The AMS made these observations about that:
“Dr Takyar gave Mr Henning a whole person impairment rating of 22%. Where Dr Takyar differed from me was in his ratings for Social and Recreational Activities where he rated Mr Henning a Class 3. I rated Mr Henning a Class 2 as I noted that he is going out by himself for motorbike rides for an hour each day, every second day. He also goes for coffee with his wife and friends every third day and visits his daughter every week. I believe this is a Mild level of impairment in Social and Recreational activities. Dr Takyar rated Mr Henning a Class 3 for Concentration Persistence and Pace whereas I rated Mr Henning a Class 2. I note that Dr Takyar wrote, ‘…he reported that he tends to lose focus after reading for 15 to 20 minutes’. I also obtained a similar history from Mr Henning but noted that Mr Henning is able to ride his motorbike for 30 minutes at a time before stopping and completing another 30-minute ride. I think this best fits a Class 2 Mild level of impairment in Concentration, Persistence and Pace.
….

Dr Bisht gave Mr Henning a whole person impairment rating of 7%. Where we differed was in our ratings for Self Care and Personal Hygiene, where Dr Bisht rated Mr Henning a Class 2 whereas I rated him a Class 3. I rated Mr Henning a Class 3 as he reports requiring prompting from his wife to shower, change his clothes and clean his teeth on a daily basis. He said that he frequently skips meals. I believe that this best characterises a Class 3 in this category. Dr Bisht rated Mr Henning a Class 3 for Concentration, Persistence and Pace, whereas I rated Mr Henning a Class 2 for the reasons I have outlined above. I note that Dr Bisht wrote, ‘…Christoph is able to sustain concentration on demanding tasks for 15-30 minutes. He said that he loses concentration after about 15 to 30 minutes, such as while doing crosswords or riding his bike’. This generally agrees with the information provided to me by Mr Henning which I believe best fits a Class 2 rating for Concentration, Persistence and Pace. Dr Bisht rated Mr Henning a Class 3 for Employability, whereas I rated Mr Henning a Class 5 as I believe that his symptoms of Posttraumatic Stress Disorder are so
severe that he would not be able to work at all.”
The AMS also assessed the appellant’s impairment in the areas of “travel” and “social functioning” to be mild. The AMS assessed the appellant’s impairment in the area of “self-care and personal hygiene” to be moderate and his impairment in the area of “employability” to be severe.
The AMS observed that the medium class of his classifications of the appellant’s impairments in the several areas he rated in accordance with [11.11] of the Guidelines was 2 and that the aggregate of his ratings was 16. That correlated with a WPI of 9%. As said, the AMS certified in the MAC that that was the appellant’s degree of permanent impairment from his injury.

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 AMS did not have sufficient regard to what he had said in his statement, attached to the ARD, regarding his impairment in social and recreational activities. The appellant submits that prior to his injury he was an outgoing person with a wide network of friends who participated in social gatherings and in hobbies that included motor bike riding, swimming and fitness, whereas now he is socially withdrawn and his social activities are limited to meeting with friends for coffee in the presence of his partner. The appellant submits that the AMS did not reconcile the rating he made of the appellant’s impairment in social and recreational activities with the opinion of Dr Takyar and or with the matters the appellant had raised in his statement.
With respect to the area of concentration, persistence and pace, the appellant submits that the AMS also did not “attempt to reconcile or address the matters contained within the appellant’s statements and report of Dr Takyar” but only considered two matters, being the appellant’s ability to read for 15 to 20 minutes and to ride a motor bike for 30 minutes.

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.
The Appeal Panel notes that within the appellant’s statement dated 25 July 2020, the appellant described himself as being an outgoing person prior to his developing his psychiatric injury. The appellant said he had a large and wide network of friends. He said that he enjoyed going to social gatherings, dinner parties and things of that nature. He recounted having a number of hobbies including motor bike riding and swimming and fitness. He said that following his injury, he had become socially withdrawn and that based on medical advice he does his utmost to continue to have social contact with friends. To that end, he said he now meets friends including former work colleagues on most days to have a coffee in the morning. He said however that he otherwise remains indoors and feels the need to remain in bed under a blanket. He said his partner and others try to encourage him to get out as much as he can and it is only with their prompting that he does get out.
The AMS noted in the MAC that he had based his assessment of the appellant’s permanent impairment on his interview with the appellant, the documents attached to the ARD which included the appellant’s statement of 25 July 2020, and the documents attached to the Respondent’s Reply. Consequently, the AMS did have regard to the appellant’s statement of 25 July 2020. An AMS is however, entitled to give pre-eminence to his or her clinical observations of a worker over what a worker has reported to the AMS or said in a written statement. It is a matter for an AMS’s clinical judgment how to weigh the significance of matters observed or raised during examination and the matters raised in the documentary material provided to the AMS.[2] An AMS is not limited to a worker’s self-report of symptoms. Further, the Guidelines at [1.6] note that an assessment of “permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information”.
[2] Ferguson v State of New South Wales [2017] NSWSC 887 at [23], sighting with approval NSW Police Force v Daniel Wark [2012] NSWWCC MA36 at [33].
In the Appeal Panel’s view, it is apparent from the MAC that the AMS has had regard to what the appellant said in his written statement and took into account the matters that the appellant described in that statement such as his losing interest in socialising with family and friends after he developed his psychiatric illness. The AMS however has exercised his clinical judgment to determine the significance of the matters raised in the appellant’s statement in terms of how the appellant’s function has been impaired from his injury. The AMS has also weighed other matters, as the AMS was entitled to do.
The AMS provided his reasons for why he classified the appellant’s impairment in the areas of social and recreational activities and in concentration, persistence and pace. In the Appeal Panel’s view, the AMS’s reasons for his classifications of the appellant’s impairment in these areas are supported by the reasons he provided. The reasons he provided indicate the matters to which gave significance when assessing the appellant’s impairment.
An AMS is not required to reconcile his or her opinion or his or her assessment with the opinion of other clinicians who may have examined a worker. An AMS can of course have regard to medical reports and the opinions of other clinicians to assist with the assessment, which is in accordance with the instruction also provided in [11.6] of the Guidelines. But the AMS does not have to justify why he has assessed a worker’s impairment differently from how some other clinician has assessed the worker.
As Harrison AsJ held in Glen William Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [66] “in relation to classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in a statutory sense”. Hence, the fact that Dr Takyar assessed the appellant’s impairment in “social and recreation activities” and in “concentration, persistence and pace” differently from how the AMS assessed the appellant’s impairment in these areas of function does not demonstrate error on the part of the AMS.
As mentioned, the Appeal Panel considers that the AMS’s classification of the appellant’s impairment in the areas of social and recreational activities and in concentration, persistence and pace is justified by the reasons the AMS provided, and those reasons are based on those matters that the AMS, in his clinical judgment, considered were relevant from the history he obtained and his findings from his examination of the appellant. With respect to social and recreational activities the AMS has highlighted that notwithstanding that the appellant is less socially active than previously, the appellant does go out with his partner and friends every third day and visits his daughter once a week and engages in the activity of motor bike riding for around an hour every second day. The appellant’s statement identifies regular meetings with friends for coffee not withstanding this being encouraged by his clinicians. In the Appeal Panel’s view, it was open to the AMS to rate the appellant’s impairment as mild based on the appellant engaging in these activities. It was not an error for him to do so. Absent it being an error, the Appeal Panel cannot substitute its opinion with respect to how the appellant’s impairment in this area ought to be rated.
Similarly, with respect to the AMS’s assessment of the appellant’s impairment in concentration, persistence and pace, the AMS has highlighted that the appellant has reduced concentration but is able to read for 15 to 20 minutes before losing concentration and is able to ride his motor bike for about 30 minutes before having to take a break and recommence that activity. The Appeal Panel notes that riding a motor bike necessarily involves concentration. The Appeal Panel also notes that the AMS identified no impairment in this area in his examination, recording that “Mr Henning was alert and orientated. He maintained concentration throughout the interview and was able to give a coherent history”. Again, it was open to the AMS to classify the appellant’s impairment in this area as mild based upon those matters. Again, it does not matter that other clinicians may have had a different opinion about the extent to the appellant’s impairment in this area.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 December 2020 should be confirmed.

Marshal Douglas
Member

Professor Nicholas Glozier
Medical Assessor

Dr Douglas Andrews
Medical Assessor

18 March 2021