Hurley v Westpac Banking Corporation

[2024] NSWPICMP 173

DETERMINATION OF APPEAL PANEL
CITATION:	Hurley v Westpac Banking Corporation [2024] NSWPICMP 173
APPELLANT:	David Wayne Hurley
RESPONDENT:	Westpac Banking Corporation
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	27 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Appellant alleged error in the assessment under two of the categories under the psychiatric impairment rating scale, namely, self-care and personal hygiene and social and recreational activities; no error found; ratings were open to the Medical Assessor in both categories; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 21 September 2023 Mr David Wayne Hurley (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 August 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 (the 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 grounds of appeal on which the appeal is made.

4. 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.

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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 WorkCover Medical Assessment Guidelines 2006.

2. The appellant requested that he undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. However, as a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary 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 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

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

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. 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. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        Date of injury: 30 November 2021 (deemed)

   ·        Body parts/systems referred: Psychological/Psychiatric

   ·        Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying as follows:

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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric injury	30/11/21 (deemed)	Chapter 11, page 54	Chapter 14, pg 361-365	8	1/10th	7
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					7

1. The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

Table 11.8: PIRS Rating Form

Name	David Wayne Hurley	Claim reference number (if known)	W1184/23
DOB	Xxxx	Age at time of injury	62 years old
Date of Injury	30 November 2021 (deemed)	Occupation at time of injury	Executive manager Credit
Date of Assessment	21 August 2023	Marital Status before injury	Married

Psychiatric diagnoses	1.Major Depressive Disorder		2.
3.		4.
Psychiatric treatment	Desvenlafaxine 50mg
Is impairment permanent?	Yes
PIRS Category	Class	Reason for Decision
Self Care and personal hygiene	1	Dr Abdal Khan reported Self-care = 2
		He said he showers twice a day, which he said his wife insists on it. He said he changes his clothes every day, or up to three times a day when he’s more physically active. He said that when his wife is at work, he cooks lunch for himself and leaves a meal for his wife on returning from work, but his wife tends to insist on doing all the cooking. He said that he can do some of the grocery shopping when needed, but his wife feels it’s her job to do, so she does it most of the time; and this has been a longstanding pattern.
		His capacity for self-care appears to be within a variation of the normal population, so he has no impairment.
		Dr Abdal Khan reported Social and recreational activities = 3
Social and recreational activities	2	He plays golf with his golf friends once a week. He also has friends amongst his neighbours, whom he occasionally goes out for lunch, perhaps once every six weeks. He said he enjoys gardening, including maintaining the hedges and he said in Spring he has to do that twice a week, and every 2-3 weeks in Winter; he enjoys his drawing, and entered an Art show in February this year, and he managed to sell one painting, and he has been gradually getting into it again, but he said it is taking him 3-4 weeks to gain inspiration to get his art done.
		He has ongoing regular engagement in social activities with his friend, and also gardening and participating in an Art Show this year, albeit his engagement has been reduced than before, so he has mild impairment.
		Dr Abdal Khan reported Travel = 2
		He said they had a trip down to Canberra in June, and the trip was aborted when his wife was sick. He drives to the golf course and to the shops. He said he had backed into a car in April or May, when picking up his mother-in-law.Dr Abdal Khan reported Travel = 2
Travel	2	He has been able to continue driving, albeit perhaps with less care than before, so he has mild impairment. He said they had a trip down to Canberra in June, and the trip was aborted when his wife was sick. He drives to the golf course and to the shops. He said he had backed into a car in April or May, when picking up his mother-in-law.
		He has been able to continue driving, albeit perhaps with less care than before, so he has mild impairment.
		Dr Abdal Khan reported Social functioning = 2
		He said their relationship is “very good”, and they remain quite emotionally close to each other. He said that he has three sons, aged 39, 37 and 33 years. He sees his youngest son every second day and with whom he maintains a close relationship; he sees his oldest son 4-5 times a year and he said their relationship has been good and much the same as it has always been; and he has not seen his middle son for three years, since his son married a girl, and their relationship “fell apart”, and he is not sure why. He has one full sister, one half-sister and four brothers, and 2 brothers who has passed away. He said he is close to some of his siblings, and they all live interstate and he said it’s hard to be close to them when they live far away. He said he has friends, including those from kindergarten. He talks to his childhood friends on special occasions. He plays golf with his golf friends he met at the golf course and sees them once a week. He also has friends amongst his neighbours, whom he sees occasionally. He occasionally goes out for lunch with his neighbours as well, perhaps once every six weeks. He has avoided playing with a golf buddy who had a similar personality to his manager. Dr Abdal Khan reported Social functioning = 2
Social functioning	2	He has some loss of friends, but has been able to maintain much of his friendships with friends and with his family, so any impairment is only mild.He said their relationship is “very good”, and they remain quite emotionally close to each other. He said that he has three sons, aged 39, 37 and 33 years. He sees his youngest son every second day and with whom he maintains a close relationship; he sees his oldest son 4-5 times a year and he said their relationship has been good and much the same as it has always been; and he has not seen his middle son for three years, since his son married a girl, and their relationship “fell apart”, and he is not sure why. He has one full sister, one half-sister and four brothers, and 2 brothers who has passed away. He said he is close to some of his siblings, and they all live interstate and he said it’s hard to be close to them when they live far away. He said he has friends, including those from kindergarten. He talks to his childhood friends on special occasions. He plays golf with his golf friends he met at the golf course and sees them once a week. He also has friends amongst his neighbours, whom he sees occasionally. He occasionally goes out for lunch with his neighbours as well, perhaps once every six weeks. He has avoided playing with a golf buddy who had a similar personality to his manager.
		He has some loss of friends, but has been able to maintain much of his friendships with friends and with his family, so any impairment is only mild.
		Dr Abdal Khan reported Concentration, persistence and pace = 3
		He said his energy has been ok. He has still been going out, seeing friends and playing golf. He said his concentration has been up and down, and he has to make a list on his notebook to stick to things. He was alert and appeared grossly cognitively intact and was able to sustain his concentration throughout the assessment, and he was able to read a full letter from his wife without pause or difficulties in sustaining in attention over two pages.Dr Abdal Khan reported Concentration, persistence and pace = 3
Concentration, persistence and pace	3	While he has been able to read a few pages at a time, he has been struggling with his concentration and recall, so he has moderate impairment. He said his energy has been ok. He has still been going out, seeing friends and playing golf. He said his concentration has been up and down, and he has to make a list on his notebook to stick to things. He was alert and appeared grossly cognitively intact and was able to sustain his concentration throughout the assessment, and he was able to read a full letter from his wife without pause or difficulties in sustaining in attention over two pages.
		While he has been able to read a few pages at a time, he has been struggling with his concentration and recall, so he has moderate impairment.
		Dr Abdal Khan reported Employability = 5
		He said that since then, he has not tried to work, as he cannot maintain his concentration. He said he has not looked for alternative work, as his anxiety levels are too high, and he said he is no longer himself and doesn’t have the capacity to do that anymore.Dr Abdal Khan reported Employability = 5

1. The worker appealed. The appeal concerned the assessment made under two of the PIRS categories, namely self-care and personal hygiene and social and recreational activities.

2. In summary the appellant submitted that the Medical Assessor made an assessment on the basis of incorrect criteria and made demonstrable errors in his assessment under two of the PIRS categories, when he made errors which included the following:

   (a)    when he assessed a Class 1 for self-care and personal hygiene and a Class 2 should have been assessed.

   (b)    When he assessed a Class 2 for social and recreational activities and a Class 3 should have been assessed

3. In summary, the respondent employer, Westpac Banking Corporation (the respondent), submitted that the Medical Assessor did not err, nor did he make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

4. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.

5. The complaints on appeal concern the assessments made under two of the PIRS categories, namely self care and personal hygiene and social and recreational activities.

6. The Appeal Panel cannot interfere with these ratings absent error by the Medical Assessor. The Appeal Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Panel will deal with each category in turn.

7. In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:

   Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population
Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away 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.
Class 4	Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5	Totally impaired: Needs assistance with basic functions, such as feeding and toileting.

1. The Medical Assessor rated no deficit or minor deficit attributed to the normal variation in the general population at Class 1 with the following reasoning:

Dr Abdal Khan reported Self-care = 2

He said he showers twice a day, which he said his wife insists on it. He said he changes his clothes every day, or up to three times a day when he’s more physically active. He said that when his wife is at work, he cooks lunch for himself and leaves a meal for his wife on returning from work, but his wife tends to insist on doing all the cooking. He said that he can do some of the grocery shopping when needed, but his wife feels it’s her job to do, so she does it most of the time; and this has been a longstanding pattern.

His capacity for self-care appears to be within a variation of the normal population, so he has no impairment.

1. The appellant submitted that a mild impairment or Class 2 should have been assessed.

2. The Medical Assessor has to make an independent assessment using his clinical judgment on the day of assessment. He had regard to the opinions of the other experts, clearly noting that his opinion differed from both that of  Dr Roberts, the independent medical expert (IME) qualified on behalf of the respondent employer, and Dr Khan, the IME qualified to provide an opinion on behalf of the appellant. He noted that Dr Khan had assessed a Class 2 in this category. The Medical Assessor had specifically noted that he did not find the impairment to be as severe as assessed by Dr Khan noting in respect to the differing IME opinions in respect of impairment assessment as follows:

   “With respect to Dr Roberts, I think there has been some degree of impairment in some of his domain, but not as severe as assessed by Dr Khan, and direct comparisons for each domain of the PIRS and my reasoning can be found in the PIRS table.”

3. The appellant is clearly on the history given on the day of assessment able to look after himself, showering twice a day which he says his wife insists on. This appears qualitatively different to prompting someone who would not do so otherwise. The appellant also changes his clothes up to three times a day without assistance. He is able to cook and grocery shop. He cooks for himself when his wife is at work but otherwise his wife does most of the cooking, not because he is unable to do so because of impairment, but that she prefers to do so. These standards of self care and personal hygiene are consistent with normal variation of men in their sixties in the population. The panel can discern no error in the Class 1 rating.

4. In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:

   Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
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.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

1. The Medical Assessor assessed a mild impairment at Class 2 with the following reasoning:

Dr Abdal Khan reported Social and recreational activities = 3

He plays golf with his golf friends once a week. He also has friends amongst his neighbours, whom he occasionally goes out for lunch, perhaps once every six weeks.

He said he enjoys gardening, including maintaining the hedges and he said in Spring he has to do that twice a week, and every 2-3 weeks in Winter; he enjoys his drawing, and entered an Art show in February this year, and he managed to sell one painting, and he has been gradually getting into it again, but he said it is taking him 3-4 weeks to gain inspiration to get his art done.

He has ongoing regular engagement in social activities with his friend, and also gardening and participating in an Art Show this year, albeit his engagement has been reduced than before, so he has mild impairment.

1. The appellant submitted that a Class 3 or moderate impairment should have been assessed.

2. The IME qualified on behalf of the appellant, Dr Khan assessed Class 3 and the Medical Assessor specifically noted that he did not find the impairment to be as severe as assessed by Dr Khan.

3. The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is undertaking regular social and regular activities without the need for a support person. His social and recreational activities are not rarely undertaken but are regularly undertaken. The appellant submitted that he was not really interacting with friends on the golf course, rather he merely plays with other people outside of his social friendship circle. However the appellant’s recreational activity remains regular in that he undertakes this activity once a week. Engaging in this activity requires him to interact with other people for a considerable duration given the time a round of golf can take. The appellant submitted that his wife entered the art show on his behalf and his interaction was limited. The creation of art is a recreational activity and was of a standard of effort on the appellant’s part that enabled his art to be entered into an art show, and indeed one of his art pieces was sold, demonstrating his capacity to participate at a standard suitable for purchase and long term viewing. He also maintains gardening as a hobby that requires his regular effort. Class 2 or a mild impairment is the best fit and the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.

4. For these reasons, the Appeal Panel has determined that the MAC issued on
   25 August 2023 should be confirmed.