Hugo v Lambing Flat Enterprises Pty Ltd
[2024] NSWPICMP 379
•14 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hugo v Lambing Flat Enterprises Pty Ltd [2024] NSWPICMP 379 |
| APPELLANT: | Craig James Hugo |
| RESPONDENT: | Lambing Flat Enterprises Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 14 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) had regard to an irrelevant consideration when rating appellant’s impairment in social and recreational activities by having regard to appellant’s participation in archery; whether MA’s rating of appellant’s impairment in social and recreational activities involved error; whether MA considered paragraph 1.32 of the Guidelines; Held – MA made no error with respect to his rating of the appellant’s impairment in social and recreational activities; MA either failed to consider paragraph 1.32, or if he did consider it, failed to explain why it did not apply; either way that was an error on the part of the MA, but when Appeal Panel corrects that error, no difference in outcome; Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 March 2024 Craig James Hugo, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 March 2024.
The appellant relies on the following grounds for 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.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
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 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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment in 2018 as a disability support worker with Lambing Flat Enterprises Pty Ltd, the respondent. On 8 January 2019 he suffered a psychological injury as a consequence of being assaulted by one of the respondent’s clients. He claimed compensation for permanent impairment resulting from that injury, relying on a report of psychiatrist Dr Ben Teoh, dated 25 November 2022. Dr Teoh had examined the appellant on that date and advised in his report he had assessed the appellant had 22% whole person impairment (WPI) from his injury.
That assessment of Dr Teoh was based on Dr Teoh’s ratings of the appellant’s impairment in the Psychiatric Impairment Rating Scale (PIRS), which were Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 travel, Class 3 for social functioning, Class 3 for concentration, persistence and pace, and Class 5 for employability. Dr Teoh noted that the median of his class scores is 3 and the aggregate is 18, which converted to 22% WPI. Dr Teoh found that the appellant had a pre-existing psychiatric condition that had been aggravated by the incident in which the appellant suffered his work injury. Dr Teoh did not make any deduction under s 323(1) of the 1998 Act for any proportion of the appellant’s impairment that was due to that pre-existing condition. Consequently, it can be inferred that Dr Teoh had considered that no proportion of the appellant’s impairment was due to that pre-existing condition. Dr Teoh also did not increase the percentage of the appellant’s permanent impairment pursuant to paragraph 1.32 of the Guidelines, which allows for the percentage of WPI to be increased by 1%, 2% or 3% where effective long-term treatment of an illness or injury has resulted in apparent substantial or total elimination of a workers’ permanent impairment but the worker would likely revert to the original degree of permanent impairment if that treatment was withdrawn.
To respond to the appellant’s claim, the respondent’s solicitors organised for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht on 15 March 2023. In a report dated 29 March 2023 Dr Bisht advised the respondent’s solicitors he had assessed the appellant had 14% WPI from his injury. Dr Bisht’s rating of the appellant’s impairment in the various PIRS categories were the same as Dr Teoh with the exception of social functioning and employability, for which Dr Bisht rated the appellant’s impairment as respectively Class 2 and Class 3. Dr Bisht observed that the median of his class scores is 3 and that the aggregate is 15, which correlates with 15% WPI. Dr Bisht made a deduction of 10% because he considered a proportion of the appellant’s permanent impairment was due to a pre-existing condition the appellant had of post-traumatic stress disorder. Dr Bisht advised in his report that he did not make any addition for treatment effect as the appellant’s treatment had not brought about substantial improvement.
On 28 April 2023, the respondent’s insurer provided a notice to the appellant under s 78 of the 1998 Act in which it advised the appellant it disputed it was liable to pay him compensation for permanent impairment from his injury. It advised him this was because it relied on the report of Dr Bisht who had assessed the degree of his permanent impairment from his injury as 14% WPI, which is less than the threshold imposed by s 65A(3) of the Workers Compensation Act 1987 of at least 15% before he accrues an entitlement for compensation for permanent impairment.
The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination by the Commission of his claim for compensation. A delegate of the President of the Commission referred the matter to the Medical Assessor, who examined the appellant on 19 February 2024, and who, as mentioned, provided the MAC on 4 March 2024 in response to the matters referred.
In his appeal against the medical assessment the appellant has raised issues with respect to the Medical Assessor’s rating of his impairment in social and recreational activities and also with respect to whether the percentage of WPI the Medical Assessor assessed to him to have from his injury ought to have been increased pursuant to paragraph 1.32 of the Guidelines.
The Medical Assessor rated the appellant’s impairment in social and recreational activities as Class 2, and provided the following reasons for doing so in the PIRS rating form within the MAC:
“Mr Hugo reported attending around 5 rugby league games per year, doing so with the support of a group of friends. He is actively involved in these games, to the extent he may assist people finding their seats.
Mr Hugo has been able to take up archery in the last 2 years, and practices this at least fortnightly, by himself.”
Within the body of the MAC the Medical Assessor also recorded that the appellant estimated he has 12 friends at the Cronulla Sharks Club. The Medical Assessor also recorded that when the appellant commenced to learn archery he assisted someone at the local police boys club to show her children how to use a compound bow and that, subsequently, he received instruction in archery as part of a group of adults. The Medical Assessor also recorded that the appellant goes for walks around a local track for about 50 minutes twice a week and that the appellant may also walk on the beach if he is close to one.
The Medical Assessor listed in the MAC the medications the appellant currently takes, which included, with respect to his psychiatric illness, sodium valproate, desvenlafaxine, prazosin and medicinal cannabis. The Medical Assessor noted that the appellant consults his general practitioner at lease once a month and more frequently as required. His general practitioner reviews his mental state and his prescriptions for medication and organises referrals. The Medical Assessor also noted that the appellant consults a psychiatrist every three to six months, and more often if required.
The Medical Assessor recorded that the appellant had a prior history of receiving treatment at the St John of God Hospital and that following his injury the appellant was admitted there in February 2019 and again in September 2019. The Medical Assessor recorded that at some stage in 2019 the appellant was prescribed Fluoxetine and that his prescription for desvenlafaxine commenced in December 2019.
The Medical Assessor recorded that the appellant estimated he had two to three psychiatric admissions in 2023, and that during the most recent one he completed part one of the stair program. The Medical Assessor noted that the appellant was due to be admitted to the St John of God Hospital to complete the second part of a stair program.
The Medical Assessor recorded the appellant’s prescription of medical cannabis commenced at some stage during the COVID-19 pandemic and that the appellant reported this had helped him with his anxiety and suicidal ideation from around three months after commencing medical cannabis. Further the appellant had stopped self-harming after commencing using it. The Medical Assessor recorded that the appellant reported that at some stage after commencing medical cannabis he could no longer afford it because the insurer had ceased funding for it. During that time the appellant reported going “backwards”. He subsequently was recommenced on medical cannabis.
In answer to this standard question within the prescribed form for a medical assessment certificate, “have all body parts/systems stabilized/reached maximum medical improvement?”, the Medical Assessor responded “Yes, Mr Hugo's psychiatric condition has been well-stabilised, and no significant change in function is anticipated within the next 1 - 2 years, with or without treatment”.
The Medical Assessor’s rating of the appellant’s impairment in the several PIRS categories were Class 2 for self-care and personal hygiene, Class 1 for travel, Class 3 for social functioning, Class 3 for concentration, persistence and pace, Class 4 for employability and, as already said, Class 3 for social and recreational activities. The Medical Assessor noted that the median of his scores is 3 and the aggregate is 15 which converts to 15% WPI.
The Medical Assessor considered that the appellant had a pre-existing condition of post-traumatic stress disorder and that a proportion of the appellant’s permanent impairment was due to that, and he assumed, in accordance with s 323(2), that the proportion was 10%. The appellant does not take issue with that in his appeal against the MAC.
Upon the Medical Assessor making that deduction he assessed the degree of the appellant’s permanent impairment from his injury was 14% 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 Procedural Direction PIC7.
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
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor relied on an irrelevant consideration when rating his impairment in social and recreational activities by having regard to his practicing archery. The appellant submitted that this is a solitary activity and does not fall within the ambit of social and recreational activities. The appellant referred to a decision of a differently constituted Appeal Panel in Marciano v New South Wales[2] at [46]. The Appeal Panel observes that the Appeal Panel in that case referred to Ballas v Department of Education (State of NSW)[3] as authority for the proposition that events that are solitary are not social and do not fall within social and recreational activities because they are not done with other people.
[2] [2022] NSWPICMP 26.
[3] [2020] NSWCA 86 (Ballas).
The appellant submitted that he only attends rugby league events with a support person and the fact that he requires a support person to attend such an event is not consistent with a Class 3 impairment in social and recreational activities. The appellant submitted that his participation at rugby league games is restricted to assisting people find their seats at the game.
The appellant submitted that the Medical Assessor failed to consider whether paragraph 1.32 of the Guidelines should be applied, in that the Medical Assessor failed to have regard to the positive effects that his treatment has had on his injury. The appellant referred to the treatment that he has had in the form of consultations with his general practitioners, his psychiatrist and his psychologist, and to the pharmacological treatment he has had including medicinal cannabis, and to his multiple admissions to the St John of God Hospital. The appellant also referred to the clinical records of his general practitioner, to a report of his psychiatrist dated 16 August 2021 wherein his psychiatrist requested an admission to the St John of God Hospital, to the discharge summaries of St John of God Hospital, to Dr Teoh’s report of 25 November 2022, to a report of Dr Lau dated 27 August 2021 wherein it was noted that following his cessation of medicinal cannabis for 10 days he had suicidal thoughts and anxiety, and to reports of a mental health nurse, namely Ally Corkhill, dated 10 November 2021 and 25 February 2022 wherein she noted a deterioration of the appellant’s symptoms following the cessation of medicinal cannabis.
The appellant submitted that if he were to cease treatment it would undo the positive effects of the treatment and cause a substantial deterioration of his condition. He submitted that the assessment of his impairment ought consequently be increased pursuant to paragraph 1.32 of the Guidelines.
The appellant submitted that the Medical Assessor did not provide adequate reasons for not applying paragraph 1.32 of the Guidelines.
In reply, the respondent submitted that the Medical Assessor did not rely on irrelevant considerations when rating the appellant’s impairment in social and recreational activities and that the Medical Assessor correctly and adequately explained his assessment of the appellant’s impairment in that category.
The respondent submitted that the appellant submissions that he attends rugby league matches only with a support person is inaccurate. The respondent highlighted that the Medical Assessor recorded that the appellant volunteers at the Cronulla Sharks Rugby League Club helping people find their seats and that the appellant has an estimated 12 friends in the club whom the appellant described as supportive. The respondent submitted that there is a distinction between a person attending a rugby league event with a support person and someone who attends a rugby league event typically five times a year and who volunteers to help at the club and has an estimated 12 friends in the club who are supportive. The respondent submitted that the Medical Assessor correctly rated the appellant’s impairment in social and recreational activities as Class 2.
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 does not agree with the appellant’s submissions that the Medical Assessor had regard to an irrelevant consideration when rating the appellant’s impairment in social and recreational activities. Ballas does not, in the Appeal Panel’s view, require that the activities of a worker that are to be considered in social and recreational activities are limited to activities in which a worker engages with others.
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-s 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.”
Accordingly, the Court of Appeal did not hold that the conduct of a worker to be considered in this PIRS category of social and recreational activities must involve interaction with others. Rather, what the Court of Appeal held is that is arguable that this is the case. The Court held that because the worker in that case had submitted, as part of his appeal against the medical assessment, and because that particular submission was arguable, that the matter should have proceeded to an Appeal Panel to consider the merit of the submission.
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.[4] The Appeal Panel does not 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, 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.[5]
[4] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65].
[5] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [72]-[73].
Given that, the Appeal Panel considers that the Medical Assessor rightfully considered the appellant’s engagement in archery when rating the appellant’s impairment in social and recreational activities. The Appeal Panel also considers that when rating the appellant’s impairment in social and recreational activities the Medical Assessor could also have had regard to the appellant going on walks at a local track and also going on walks to a beach when he is near to one, as these are recreational activities in which he engages.
The Appeal Panel also notes that the appellant when he initially became involved in archery did so as part of a group with other adults. That is, his initial engagement in that activity, which occurred after he suffered his work injury, involved interaction with others.
But if the Appeal Panel is wrong on this matter, and if the appellant’s participation in archery is excluded and his walking is excluded from consideration, the Appeal Panel still considers that the appellant’s impairment in social and recreational activities is rightfully rated as Class 2.
The examples provided in Table 11.2 of the Guidelines for a Class 2 and Class 3 impairment in social and recreational activities are:
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
The Appeal Panel agrees with the respondent’s submission that a distinction is to be drawn between a ‘support person’, on the one hand, and friends who are supportive. Axiomatically friends are supportive. The interaction with friends is necessarily a social activity, and enduring friends are generally supportive. In this case the appellant goes five times a year to the Cronulla Sharks Rugby League Club with his friends, of whom he estimated there are 12. He actively participates at these events in that he assists other people to find their seats that is, he supports others rather than those spectators supporting him. The appellant does not need the support of his friends to be at the Sharks Rugby League Club to watch a football game, which is a recreational activity. He is socialising with his friends when he is at that activity. He actively engages in that activity in that he is able to assist other patrons of the club to their seats.
That squarely fits with an impairment of the nature described by the descriptors of a Class 2 impairment or better given his active involvement.
Paragraph 1.32 of the Guidelines reads as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
The Medical Assessor did not in the MAC refer to paragraph 1.32 of the Guidelines. It is not apparent from the MAC that he turned his mind to whether paragraph 1.32 applies to the circumstances for this case. The fact that the Medical Assessor failed to indicate whether or not an adjustment ought to be made in accordance with paragraph 1.32 of the Guidelines is consistent with the Medical Assessor having overlooked it.[6] At the least, if the Medical Assessor had turned his mind to whether clause 1.32 applied and decided it did not do so, he has not provided any explanation at all for why it did not.
[6] SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]; Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [50].
The Medical Assessor erred by either not having turned his mind to whether paragraph 1.32 of the Guidelines applied or having turned his mind to it and not explaining why it did not apply. That results in the MAC containing a demonstrable error. That being that case, the Appeal Panel must correct that error.
Deciding whether paragraph 1.32 of the Guidelines applies requires consideration of three matters:
“1. Whether there has been effective long-term treatment of a workers’ illness or injury;
2. Whether, if so, that treatment has result in apparent substantial or total elimination of the workers’ permanent impairment;
3. Whether, if so, the worker is likely to revert to the original degree of impairment if treatment is withdrawn.”[7]
[7] Zoric v Secretary, Department of Education & ORS [2024] NSWSC 131 at [59]; Peachey at [57].
In this case, the appellant has had long-term treatment of post-traumatic stress disorder. He has regularly consulted his general practitioner over the course of years for that illness and had previously had admissions to St John of God Hospital for treatment of that illness. The appellant however was functioning relatively well before suffering his work injury, which was an aggravation of his existing illness and a worsening of it. Prior to his injury, the appellant was engaged in full-time employment, was in a long-term and supportive relationship and was able to look after himself.
Following his injury, the appellant was immediately unwell. He could not work and required an admission to St John of God Hospital. His medication was changed following his injury in that he now is prescribed medicinal cannabis, sodium valproate, desvenlafaxine and prazosin. Notwithstanding this medication, the appellant remains severely impaired, given that he is unable to work and impairment in most other elements of his function to some degree, with the exception of travel. He is awaiting admission to St John of God Hospital to complete the second part of the stair program. For a brief time, when he was not taking medicinal cannabis, there was an apparent worsening of symptoms, although his impairment in his function and activities remained the same throughout this brief period.
What this reveals, in the Appeal Panel’s view, is that the appellant has had effective long-term treatment for his injury, although not yet optimal treatment, given that he is awaiting a further admission to the St John of God Hospital. His treatment to date, however, has not resulted in a total elimination of his permanent impairment from his injury, nor has it resulted in an apparent substantial elimination of his permanent impairment from his injury. The function of the appellant subsequent to his injury but before being specifically treated for his injury, that is the work aggravation and worsening of his psychiatric illness, is comparable to what it is now. The treatment, whilst indicated and necessary for the appellant, is not such that it has resulted in a substantial elimination of his permanent impairment from his injury.
This supported by the observations of his general practitioner who in a letter of 16 June 2023 to the appellant’s solicitors wrote that “despite implementation of all possible treatment measures his symptoms remain severe and disabling on a daily basis”.
Given that, paragraph 1.32 of the Guidelines is not engaged in the appellant’s circumstances. Consequently, although the Medical Assessor made an error by either not turning his mind to paragraph 1.32 or, if he did, not explaining why did not apply, the Appeal Panel in correcting that error, that is by considering whether it applies and deciding it does not apply, assesses the appellant’s permanent impairment from his injury the same as that assessed by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 March 2024 should be confirmed.
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