Hutton v Auto & General Holdings Pty Ltd

[2024] NSWPICMP 354

DETERMINATION OF APPEAL PANEL
CITATION:	Hutton v Auto & General Holdings Pty Ltd [2024] NSWPICMP 354
APPELLANT:	Colin Hutton
RESPONDENT:	Auto & General Holdings Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	3 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of appellant’s impairment in self-care and personal hygiene and in social and recreational activities accorded with the evidence; whether MA took into account irrelevant consideration when rating the appellant’s impairment in social and recreational activities; Held – MA’s rating of appellant’s impairment in self-care and personal hygiene accorded with the evidence and was correct; MA took into account irrelevant considerations when rating appellant’s impairment in social and recreational activities; as a consequence the Medical Assessment Certificate (MAC) contained a demonstrable error, but after Appeal Panel corrected that error, same result achieved; MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 5 March 2024 Colin Hutton, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 February 2024.

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 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).

RELEVANT FACTUAL BACKGROUND

1. Auto & General Holdings Pty Ltd, the respondent, employed the appellant as a vehicle assessor between 2016 and November 2019. The appellant suffered a psychological injury due to work he did for the respondent. He claimed compensation from the respondent for permanent impairment from his injury, relying on a report of psychiatrist Dr Christopher Canaris dated 9 March 2023 who had assessed the degree of the appellant’s permanent impairment from his injury was 22% whole person impairment (WPI).

2. The respondent’s insurer denied the respondent was liable to pay compensation the appellant claimed. In a notice issued to the appellant on 19 July 2023 under s 78 of the 1998 Act, it advised him its reason for denying liability was because the degree of his permanent impairment was not at least 15%, as required by s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act) for him to be entitled to compensation under s66 of that Act for permanent impairment. The insurer also advised the appellant in that notice that it relied on a report of psychiatrist Dr Nabil Malik dated 14 June 2023 who had examined the appellant on 25 March 2023 and had assessed the degree of his permanent impairment from his injury was 8% WPI.

3. The appellant thereupon instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. The matter was referred to the Medical Assessor, who examined the appellant on 7 February 2024 by an audiovisual link.

4. The Medical Assessor noted within the MAC that in making her assessment she took account of her clinical interview with the appellant, her findings from her mental state examination of the appellant and the documentation that she had received from the Commission. The Medical Assessor assessed the appellant’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), as set out in paragraphs 11.11 and 11.12 of the Guidelines. Her ratings of the appellant’s impairment in the several PIRS were Class 1 for self-care and personal hygiene, Class 2 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 2 for concentration, persistence and pace, and Class 5 for employability.

5. The appellant in his appeal against the MAC has challenged the Medical Assessor’s ratings of his impairment in self-care and personal hygiene and in social and recreational activities. The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in self-care and personal hygiene as Class 2:

   “He reported that his self-care is ‘not too bad’, but he needs to be more diligent. He said that he does the cleaning and cooking every night. He at times skips meal because of fatigue and lack of energy.”

6. The Medical Assessor provided the following reasons, also in the PIRS rating form, for rating the appellant’s impairment in social and recreational activities as Class 2:

   “Mr Hutton said that he has been trying to go out and doing voluntary work. He further added that he enjoys attending local aboriginal groups, kayaking in the river, and working on his farm. He said that he is now trying to fix the machinery at his farm. He said that he enjoys the voluntary role of trying to protect the bush. He has been actively involved in planting two acres of turmeric and half an acre of ginger. He said that the farm that he has bought was not operated for the last four years and he has been looking for workers to work on it. He, however, still experiences anxiety in situations in which he is not familiar with in contrast to his earlier familiar personality.”

7. The Medical Assessor also noted within the body of the MAC that the appellant had joined the Rural Fire Service (RFS). The Medical Assessor also recorded that the appellant “enjoyed the barbeque itself but was anxious when returning home”. It would seem, when considering the context in which the Medical Assessor recorded that, that this is a reference to the appellant going to a barbeque with the RFS when he joined that service. The Medical Assessor also recorded in the body of the MAC that the appellant has joined volunteer organisations, including a local men’s shed, and has started making friends on the countryside.

8. The Medical Assessor noted that the median of her scores is Class 2 and that the aggregate of her scores is 16. That converts to 9% WPI in accordance with Tables 11.7 of the Guidelines.

9. The Medical Assessor also recorded in the MAC that she found the appellant had a pre-existing condition, specifically a major depressive disorder and generalised anxiety disorder with a serious lethal suicide attempt. The Medical Assessor considered that a proportion of the appellant’s permanent impairment was due to that pre-existing condition and she assumed, in accordance with s 323(2) of the 1998 Act, that the proportion of the appellant’s permanent impairment from his injury that was due to that pre-existing condition is 10%. No issue has been raised with those findings of the Medical Assessor or the assumption she made in accordance with s 323(2).

10. Hence, the Medical Assessor assessed, and certified, that the degree of the appellant’s permanent impairment from his injury was 8%.

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 material before the Appeal Panel is sufficient for it to determine the appeal.

3. During its preliminary review of the medical assessment the Appeal Panel also considered an application that the appellant made for the Appeal Panel to receive into evidence a letter dated 15 March 2024 from the appellant’s treating clinical psychologist, Dr Mariana MacPhail, addressed to the appellant’s treating psychiatrist, Dr Linton Meagher, and a letter from Dr Linton Meagher dated 19 March 2024 addressed to the appellant’s general practitioner, Dr Nicholas Walder.

4. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.

5. Dr MacPhail in her letter of 15 March 2024 detailed that the appellant has been consulting her since June 2021 and that his appointments with her are currently every four weeks. She also detailed that the appellant had reported to her that he was unable to provide accurate specific details to the Medical Assessor when he was interviewed by her and that the appellant considered this was due to anxiety and time constraints with the Medical Assessor’s interview lasting one hour. Dr MacPhail also detailed in her letter what the appellant had reported to her about his function in self-care and personal hygiene, his ability with psychological and emotional self-care, his capacity to manage his finances, and his capacity with social and recreational functioning.

6. Insofar as Dr MacPhail has detailed in her letter the appellant’s function in various activities, her letter is not fresh evidence such that the Appeal Panel can receive it pursuant to s 328(3) of the 1998 Act.[1] The Appeal Panel observes, noting the date of Dr MacPhail’s letter, and also the date on which the Medical Assessor examined the appellant, that the appellant reported these matters to Dr MacPhail shortly after the Medical Assessor’s examination of him. Further, the Appeal Panel observes that the appellant does not rely on the ground for appeal provided in s327(3)(a) of the 1998 Act, that is that there has been a deterioration of his condition within the short timeframe between the Medical Assessor’s examination of him and when he reported these matters to Dr MacPhail. Dr MacPhail’s letter is consequently not tendered to rely upon that ground for appeal (given that the appellant does not bring his appeal based on that ground). Further, and in any event, there is unlikely to have been a deterioration of his condition within that short timeframe.

   [1] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 at [98]-[99] (Lukacevic); Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [18].

7. The matters that the appellant reported to Dr MacPhail regarding his function is not fresh evidence because the appellant was aware of these matters prior to the medical assessment and he could have provided evidence of these matters in the form of a statement before the medical assessment. Indeed the appellant detailed in a statement dated 22 January 2024, which is only shortly before the Medical Assessor’s examination of him, other matters relating to his function in various PIRS categories.

8. In short, insofar as Dr MacPhail’s letter details what the appellant reported to her regarding his function it is evidence that was both available to the appellant before the medical assessment and evidence that could reasonably have been obtained from him before the medical assessment.

9. Insofar as Dr MacPhail has detailed in her letter that the appellant felt he was unable to provide specific details to the Medical Assessor because of his anxiety and time constraints, the Appeal Panel, as a matter of discretion, declines to receive that into evidence.[2] The Medical Assessor was aware that the appellant was anxious during her clinical interview with him. She said so in the MAC - “he remained anxious throughout the interview”. The Medical Assessor also found the appellant was able to give a clear account of his symptoms and difficulties.

   [2] Lukacevic at [102].

10. It would seem from Dr MacPhail’s letter that she was not provided a copy of the MAC, given that she does not say she was in her letter. The Medical Assessor is a psychiatrist. She has experience in clinical practice. It can be inferred that she has skill and experience in how a clinical examination should be conducted so as to assess the degree of permanent impairment of a worker. There is no evidence to indicate that the appellant has any clinical experience and indeed it can be reliably assumed he does not. Therefore, insofar as the letter of Dr MacPhail details the appellant’s impression of whether the Medical Assessor obtained an accurate history from him due to anxiety and time constraints, it is consequently immaterial and can be given no weight.

11. The letter of Dr Meagher dated 19 March 2024 detailed that he has been seeing the appellant on a monthly basis. He detailed that he has read Dr MacPhail’s letter of 15 March 2024 relating to the appellant’s present level of functioning and he endorsed Dr MacPhail’s observations. He detailed the medication that the appellant currently takes, which basically correlates with what the Medical Assessor recorded in the MAC. In short, Dr Meagher in his letter, in substance, merely gives credence to what the appellant reported to Dr MacPhail regarding his current functioning. Again, that is not fresh evidence and cannot be received by the Appeal Panel.

12. The Appeal Panel notes too that the appellant’s submissions, which the Appeal Panel has summarised below, were drafted by his solicitors and included what the appellant had instructed them regarding aspects of his self-care. The appellant instructions to his solicitors regarding this is not evidence that the Appeal Panel can receive and hence consider in its determination of the appellant’s appeal. This is again because it is not fresh evidence because it relates to matters of which the appellant was aware before the medical assessment and could have been recorded in a statement.

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.

SUBMISSIONS

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

2. The appellant’s submissions were drafted by his solicitors. In summary, they are that the Medical Assessor erred by rating his impairment in self-care and personal hygiene as Class 2 and should have been rated as Class 3. The appellant referred to Dr Canaris’ rating detailed in his report of 9 August 2023 in which Dr Canaris said that the appellant is clearly more impaired than a Class 2 description because the appellant would look unkempt most of the time and because the appellant frequently misses meals, which is evident from the appellant’s reported weight loss.

3. The appellant’s solicitors said that the appellant had instructed them that he only changed his sheets and towels approximately every four months and generally does not clean his home. The appellant’s solicitors also said that the appellant instructed them that he does cook most nights but only basic meals. The appellant’s solicitors said that the appellant had instructed them that at the time of assessment he was dressed in an old stretched T-shirt and had not shaved for two weeks. The appellant submitted that these matters indicate a Class 3 impairment.

4. The appellant submitted that the Medical Assessor erred by rating his impairment in social and recreational activities as Class 2 and ought to have rated it as Class 3. The appellant submitted that the Medical Assessor erred when rating his impairment in social and recreational activities by having regard to the work he does on his farm and to his fixing machinery. The appellant submitted that “work and business activities are not activities which ought to be taken into account in this category”.

5. In reply, the respondent submitted that the Medical Assessor correctly assessed the appellant’s impairment in self-care and personal hygiene. The respondent submitted that the Medical Assessor recorded in the MAC that the appellant has joined the RFS and enjoys going to that and also recorded that the appellant enjoyed going to a barbeque. The respondent noted that the Medical Assessor recorded that the appellant does not interact well in social situations and mostly sits by himself however he is able to talk to volunteers. The respondent noted that the appellant attends local Aboriginal groups and kayaks in the river. The respondent also highlighted that the Medical Assessor recorded that the appellant goes to a men’s sheds and swims each morning. The respondent submitted that these matters identified by the Medical Assessor in the MAC “collectively showcase the appellant’s efforts and ability to involve himself in some type of social engagement”. The respondent submitted that the Medical Assessor’s rating of Class 2 should be confirmed.

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 examples provided in Table 11.1 of the Guidelines for a Class 2 and Class 3 impairment in self-care and personal hygiene are:

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.

1. The Medical Assessor rated the appellant’s impairment as Class 2 in self-care and personal hygiene on the basis that the appellant said that his self-care is not too bad although he could be more diligent. The Medical Assessor took into account that the appellant cleans and cooks every night but may skip a meal because of fatigue and lack of energy. Those matters squarely accord, in the Appeal Panel’s view, with a level of impairment described by the descriptors for a Class 2 impairment. It reveals that the appellant is able to live independently and look after himself adequately. The appellant does not need regular support to be able to live independently and does not need prompting to shower daily or wear clean clothes and does not frequently miss meals.

2. The Medical Assessor was aware that Dr Canaris had rated the appellant’s impairment in self-care and personal hygiene as Class 3. The Medical Assessor recounted in the MAC the reasons Dr Canaris provided for his rating. When comparing her rating with the rating Dr Canaris made the Medical Assessor repeated the substance of the reasons she articulated in the PIRS rating form for rating the appellant’s impairment in self-care and personal hygiene as Class 2. She said, again when comparing her rating with the rating Dr Canaris made, that she believed “Class 2 is more consistent with his presentation”. What this indicates, in the Appeal Panel’s view, is that the Medical Assessor was rating the appellant’s impairment as it was at the time she conducted the assessment, and not as it was at the time Dr Canaris conducted his assessment which was many months earlier. The Medical Assessor was correct to do so.

1. The Appeal Panel finds that the Medical Assessor when rating the appellant’s impairment in self-care and personal hygiene took into account relevant matters, as detailed in the history she obtained. The Appeal Panel discerns no error with respect to her rating. She applied the correct criteria because she applied the criteria set out in Chapter 11 of the Guidelines.

2. The Appeal Panel agrees with the appellant that the Medical Assessor made an error with respect to how she reasoned the appellant’s impairment in social and recreational activities is Class 2. That error is that she had regard to conduct of the appellant that she incorrectly characterised as social and recreational activities, rather than employability. However, when the Appeal Panel corrects that error the same result is achieved. This is because the Appeal Panel, by having regard only to conduct of the appellant relating to his social and recreational activities, rates the appellant’s impairment in social and recreational activities as Class 2.

3. Bell P and Payne JA (with Emmett AJA agreeing) held in Ballas v Department of Education (State of NSW)[3] (Ballas) held that a Medical Assessor when assessing a worker’s permanent impairment from a psychiatric injury must correctly characterise the conduct of a worker as falling within one or other of the PIRS categories. If conduct is wrongly assigned to one category when it should have been assigned to another then that will result in the Medical Assessor taking into account an irrelevant consideration when determining the degree of seriousness of the worker’s impairment in that particular category.[4]

   [3] [2020] NSWCA 86.

   [4] Ballas at [93]-[94].

4. Here, the Medical Assessor when rating the appellant’s impairment in social and recreational activities had regard to the appellant doing voluntary work and working on his farm. In the Appeal Panel’s view that activity of the appellant ought to have been characterised by the Medical Assessor as conduct relating to employability, and not social and recreational activities. Simply put, the Medical Assessor took into account an irrelevant consideration when rating the appellant’s impairment in social and recreational activities, and consequently made an error.

5. The Appeal Panel in correcting that error can rely upon the history that Medical Assessor obtained. She composed that history by reference to both the clinical data she obtained during her interview of the appellant and the documentation that had been referred to her.

6. The history the Medical Assessor detailed in the MAC including that the appellant had recently joined a local men’s shed. It also included the appellant had attended a barbeque when he joined the RFS but returned home because of anxiety. It included the appellant attends local Aboriginal groups and kayaks in the river. It included the appellant has started making friends in the countryside. It included that the appellant attends local men’s shed meetings. It included that he has a female friend.

7. The Appeal Panel also observes from the statement the appellant signed on 22 January 2024 that the appellant recently attended a live theatre with a friend, which he described as “a pretty relaxing night”. The appellant also described in his statement, however, that because his friend talked constantly on the way home it made him feel uncomfortable. The appellant also described in this statement going to the men’s shed and speaking with several people. The appellant also described attending a coal protest at Newcastle and spending a couple of days on the beach kayaking and singing with a lovely group.

8. 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.

1. In the Appeal Panel’s view the history the Medical Assessor obtained and the detail the appellant provided in his most recent statement before the Medical Assessor’s examination of him indicates that the appellant does attend social events without a support person. These events consist of going to the theatre, meetings at the men’s shed and also a protest at Newcastle where he socialised with people and also, which he enjoyed. This correlates with impairment described by the descriptors for a Class 2 impairment, that is a mild impairment in social and recreational activities, and not a Class 3 impairment, that is a moderate impairment. Consequently, when the Appeal Panel corrects the error that the appellant identified in his submissions, the same result is achieved.

2. As an aside, the Appeal Panel considers that the conduct the Medical Assessor incorrectly considered when rating the appellant’s impairment in social and recreational activities such as planting crops, fixing farm machinery and looking for employees for his farm, ought to have been correctly characterised as relating to the appellant’s capacity in employability. If those matters were correctly taken into account when rating the appellant’s impairment in employability his rating could not have been Class 5. However, that is not an error that either party identified in their respective submissions and consequently it is not something the Appeal Panel can correct.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 16 February 2024 should be confirmed.