Ingram v State of New South Wales (NSW Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	Ingram v State of New South Wales (NSW Police Force) [2022] NSWPICMP 35
APPELLANT:	Moira Ingram
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL:	Member Paul Sweeney Dr Paul Sweeney Dr Douglas Andrews
DATE OF DECISION:	4 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal by worker with psychological injury in respect of each of the Psychiatric Impairment Rating Scale categories; Medical Assessor assigned a class equal to or greater than the worker’s qualified psychiatrist in all but one category and assessed a greater whole person impairment; worker’s submissions merely sought a review of the class assigned in each category; Sydney Trains v Batshon considered and applied; failure to prove demonstrable error or incorrect criteria; Held- Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 November 2021, Moira Ingram (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 26 October 2021.
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 MAC contains a demonstrable error, and
· the assessment was made on the basis of incorrect criteria.
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 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 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Prior to February 2019, the appellant was employed by the NSW Police Force (the respondent) as a civilian clerk in the firearms registry. She was stationed at Murwillumbah. It is common ground that she was exposed to protracted interpersonal conflict in the course of that employment. It is also accepted that as a result of her work she suffered a psychological injury.
The appellant has not returned to employment since February 2019. The respondent terminated her employment on the basis that she was medically unfit to perform her duties.
On developing increasing symptoms of psychological illness in 2019, the appellant came under the care of Dr Weir, a general practitioner, who referred her to a psychologist and to Dr Braganza, a psychiatrist. She continues under the care of these doctors.
On 18 March 2020, the appellant saw Dr Thomas Oldtree Clark, a psychiatrist at the request of her solicitors for the purpose of assessing whole person impairment (WPI). Dr Clark diagnosed a persistent depressive disorder. He assessed 15% WPI in accordance with the PIRS rating form prescribed at Table 11.8 of the Guidelines.
Dr Yajuvendra Bisht, a psychiatrist, saw the appellant audio-visually at the request of the respondent’s solicitors on 10 March 2021 and provided a report of 17 March 2021. He had previously seen the appellant on 12 February 2019. By his primary report, he diagnosed a major depressive disorder, post-traumatic stress disorder, and alcohol use disorder. He expressed the opinion that the appellant had not reached maximum medical improvement. He thought that further treatment would have a significant chance of:
“significant improvement in the alcohol use disorder, which would in turn help with significant improvement in her PTSD and major depressive disorder.”
Nonetheless, Dr Bisht assessed WPI in accordance with Table 11.8 as requested by the respondent’s solicitors. He assessed 8% WPI.
The difference of opinion between Dr Clark and Dr Bisht as to MMI and WPI gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. A delegate of the President referred the dispute to Medical Assessor Hong for assessment of these issues. Dr Hong determined that the appellant had reached MMI and assessed 17% WPI. It is from that assessment that the appellant appeals.

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.
As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a re-examination of the worker by a member of the panel.
More importantly, the panel were unable to identify error in the MAC. The case law, which is discussed below, does not permit further examination of the worker unless a prima facie error has first been established.

EVIDENCE

The appeal panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel.
In summary, the appellant submits that the MA failed to consider “reliable-relevant and probative material that was available to him” and “failed to take a full and proper history of the appellant’s condition and/or give due weight to the history obtained” when assessing the PIRS categories.
The appellant’s submission then addresses each of the categories or scales in Tables 11.1 to 11.6 of the Guidelines. The appellant alleges that the MA erred in his assessment of each category. In respect of Self-care and personal hygiene, Social functioning, and Concentration persistence and pace, the appellant does not identify the Classification that is appropriate, should the appeal panel accept her submissions and find error in the MAC. In respect of Social and recreational activities and Travel, the appellant submits that she should be Classified as a Class 3 rather than the Class 2 assigned by the MA.
In respect of Self-care and hygiene, the appellant submits that she is unable to perform the daily tasks of personal hygiene such as cleaning her teeth and showering without prompting from her husband. She is, therefore, incapable of living independently without regular support and prompting.
In respect of Social and recreational activities, the appellant alleges error in awarding Class 2 on the basis of a history that the appellant attended a club, interacted with the people and was engaged during activities at the club. The appellant submitted that the MA had:
“not referred to the appellant reporting that her attendance at the local club is under direction of her treating psychiatrist and psychologist as part of a treatment plan to get her out of the house for at least 2 hours per week, so her husband Brian will take her to the raffles on Friday for 2 hours.”
The appellant submits that when she plays the poker machine at the club, she avoids social interaction and unexpected encounters. Her submission continues that without the encouragement and support of her treating doctors and her husband she will not leave the house for recreational activity. Thus, she should be categorised as Class 3.
In respect of Travel, the appellant submits that the evidence established that she is unable to leave the house and travel independently without the support of her husband or another trusted person. This brought her within a Class 3.
In respect of Social functioning, the appellant submits that as she was not able to function “in a normal social capacity” and avoided “placing herself in social situations unless forced to do so”. The MA had erred in assigning Class 3.
In respect of Concentration, persistence and pace, the appellant asserts that she is “unable to function in the usual day to day capacity and requires assistance even with day to day tasks”. It is not explicitly submitted that the AMS should have assigned a different Classification.
In respect of Employability, the appellant submits that she had no capacity for any form of employment “due to her requirement for continuous care and assistance”. The panel assumes that the appellant’s argument is that the MA should have Classified her as 5 in this category or scale.
The respondent submits that the appellant’s submissions do not identify any breach by the MA of the Guidelines so as to establish an assessment of incorrect criteria. It argued that:
“The Appellant’s submissions, with respect, appear to cavil only with the clinical judgement of Dr Hong in applying the correct criteria under the guides to his assessment of the Appellant on the day of the examination.”
In respect of the allegation of demonstrable error in the MAC, the respondent submits that there was no error of fact or law “readily identifiable on the face of the MAC". It refers to NSW Police Force v Derek Fleming [2010] NSWSC 216 and Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939.
The respondent argued in accordance with the reasoning in Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [65]-[66] and Ferguson v State of New South Wales [2017] NSWSC 887 that the appellant merely sought to quibble with soundly based findings of the MA. It stated:
“The decision in Parker highlights that when dealing with assessments under the PIRS, the identification of error as prescribed under s 327(3)(d) of the WIMA requires more than the Appeal Panel simply reaching a different opinion from the AMS, where the opinion expressed by the AMS was one which was reasonably available.”
In respect of Self-care and hygiene, the respondent submitted that the appellant had not identified how the Classification of the MA gives rise to a demonstrable error. It was open to the MA on the basis of his examination of the appellant and his consideration of the evidence to allocate Class 2 to this category/scale.
The respondent also referred to the notes of Ms Bisgrove, the appellant’s treating psychologist, which it argued “directly contradict the Appellant’s submission that she would not be capable of independent living or self-care without regular support or prompting”.
In respect of Social and recreational activities, the respondent noted that all three psychiatrists who had provided opinions in this case had assessed a Class 2 in this category/scale. It once again referred to the clinical notes of Ms Bisgrove to support the contention that the appellant’s impairment in this category properly fell within Class 2. It submitted that there was an “established pattern involving the appellant socialising with her friends frequently despite her psychological injury”.
In respect of Travel, the respondent argued that the three psychiatric specialists were once again unanimous in Classifying the appellant’s impairment in this category/scale as falling within Class 2. The respondent referred to the seeming inconsistency between the evidence contained in the appellant’s supplementary statement dated 21 July 2021 and the clinical notes of Ms Bisgrove.
In respect of Social functioning, the respondent submitted that the MA had assigned Class 3, whereas both Dr Clark and Dr Bisht assessed Class 2. In those circumstances, there was no basis for an assertion of demonstrable error or the application of incorrect criteria.
In respect of Concentration, persistence and pace, the respondent observed that all three doctors had found the appellant to be a Class 3. There is support for such a finding in the evidence and, as each of the three psychiatrists in the case had reached the same conclusion, there is no basis for a finding of demonstrable error or the application of incorrect criteria.
In respect of the category/scale of Employability, the respondent noted that the assignment of Class 4 by the MA was in conformity with the views of both Dr Clark and Dr Bisht. It continued:
“His Class values were in line with the evidence before him, consistent with the weight of medical opinion from both Dr Oldtree-Clark and Dr Bisht.”

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
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.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The appellant’s submissions on this appeal fail to recognise that it is necessary for her to establish demonstrable error or the application of incorrect criteria to succeed. In the opinion of the panel, the appellant’s submissions rise no higher than to reiterate the appellant’s evidence in respect of each of the PIRS categories. Plainly, this evidence was considered by the MA. The real basis of the appellant’s argument is that the panel should reconsider the question of classification in the six PIRS categories. The de novo approach is not open on a medical appeal.
In Sydney Trains v Batshon [2021] NSWCA 143 (16 July 2021) at [41] and [42] Leeming J, contrasted reviews pursuant to the motor accidents legislation with appeals under the workers compensation legislation. While the former involved a review of a medical assessment:
“Under the WIM Act, the grounds for appeal are confined to those stated in s 327(3), including relevantly for present purposes ‘(c) the assessment was made on the basis of incorrect criteria’ and ‘(d) the medical assessment certificate contains a demonstrable error’.
There is discussion of “demonstrable error” in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [76]- [87]. The term has given rise to a deal of authority, much of which is summarised in that passage. The error must be “contained” in the certificate, which is to say “the error must be apparent in the certificate of the approved medical specialist”: Vannini at [78]. While it is sufficient that the error be “readily apparent from an examination of the medical assessment certificate” (Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39]), that is not a necessary condition. While it is not defined, the error “must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”: Vannini at [86].”
Further, the submissions of the appellant leave no room for the application of the clinical judgment of the MA in reaching a conclusion as to classification. The submission is predicated on the assumption that it is imperative that the MA accept the entirety of the appellant’s written evidence relevant to the PIRS categories and ignore the other evidence in the case, including the evidence of the appellant’s qualified psychiatrist. In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (26 June 2015) (Jenkins), Garling J emphasised the importance of the clinical judgment of the MA in reaching conclusions and in assigning Classifications. This is consistent with the Guidelines.
In respect of all categories, other than Self-care, the MA assigned the same or higher Class than that assigned by both Dr Clark and Dr Bisht. In the absence of some dramatic deterioration in the appellant’s psychological condition, it is probable that this fact alone is sufficient to dispose of the appeal in respect of those categories. It is difficult to envisage demonstrable error or the application of incorrect criteria where an MA has assigned the same class as the specialist medical practitioner whose report provides the basis for the claim.
The evidence, however, suggests the possibility of improvement rather than deterioration. The MA observed that the appellant had largely overcome her alcohol dependency. Dr Bisht opined that successful treatment of this condition may lead to improvement in her psychological health. As there is no suggestion of deterioration in in the appellant’s condition, the panel will deal with the categories where the MA assigned the same or a higher Class than the qualified doctors briefly.
The appellant’s submissions are largely a recitation of her supplementary statement dated 21 July 2021. It is not suggested, however, that the MA did not consider that statement in reaching his diagnosis and in assessing WPI in accordance with the PIRS rating form.
Moreover, as the respondent points out, there are some inconsistencies between that statement and the clinical record of Ms Bisgrove to which the MA also refers in the MAC. It is true that the supplementary statement was signed some considerable time after the entries in Ms Bisgrove’s notes. However, while it is important to consider the context, it was open to the MA to consider the clinical notes in reaching his opinion. It was not incumbent on him to unreservedly accept every paragraph of the appellant’s statement. Her evidence must be considered in the context of the entirety of the factual material and the psychiatric opinion evidence.

If any error can be distilled from the appellant’s diffuse submissions, it is that the MA failed to give appropriate weight to the evidence of the worker. The panel does not accept this submission. The panel considers that the MA took a comprehensive history, carried out an appropriate physical examination and considered all of the evidence before him in reaching his assessment of impairment.
Plainly, the MA considered the appellant’s statements. He refers to these at [10] when discussing his reasons for assessment. He also considered the conflicting medical opinions of Dr Clark and Dr Bisht. He also records that he considered the reports of Dr Braganza the treating psychiatrist, the evidence of Ms Bisgrove, the treating psychologist and the clinical notes of the appellant’s general practitioner. The MA noted the different diagnoses of
Dr Clark and Dr Bisht. In support of his diagnosis, he said this:
“overall my view is that chronic major depression is a reasonable diagnosis and this is associated with severe anxieties. She has suffered alcohol use disorder which remitted after her hospital presentation.”

Self-care and personal hygiene

In the PIRS rating form the MA gave these reasons for his decision to assign Class 2 in this category:
“Ms Ingram described having neglected her self-care.
She reported skipping meals.
She does not shower regularly.
She is capable of independent living without regular support or prompting.”
Dr Clark assigned a Class 3 for this category. He recorded that the appellant “cannot live independently”. He gave no other reasons to support this finding. By contrast, the MA in explaining his Classification stated that:
“Dr Clark rated Ms Ingram’s self-care as a 3 and advised that she cannot live independently, and provided no further explanation. Dr Bisht rated 2, noted that she does not require constant support from family for basic care. In my assessment I noted that Ms Ingram does not shower or eat regularly. She is nevertheless able to initiate her self-care and do some cooking and therefore I rated 2.”
Relevantly, after examining the appellant, Dr Bisht recorded that:
“I am of the opinion, that she would meet criteria for Class 2 rating. Moira is able to look after her self-care, but not to the same level as before. She requires prompting and sometimes misses her meals. She does not require constant support from a family member or community nurse for her basic self-care.”
The panel has no doubt that it was open to the MA to assign Class 2 in this category. It is true that there are some aspects of the appellant’s supplementary statement that might suggest a Class 3. However, the greater part of the evidence, including the assessment of
Dr Bisht, is consonant with a Class 2. Class 3 includes the following example/criteria:
“Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimal levels of hygiene and nutrition.”
The entirety of the evidence does not suggest this description applies to the appellant. As the respondent has argued, there are aspects of Ms Bisgrove’s clinical notes which are totally incompatible with the examples in Class 3.
It is, however, unnecessary to consider these in detail. In assigning a Class, the MA was entitled to consider the entirety of the evidence in the context of his own physical examination and assessment of the appellant. The question of whether a worker is rendered so debilitated by psychological illness that she is unable to care for herself involves the exercise of clinical judgment as much as it does the consideration of the evidence. As the MA’s Classification was undoubtedly available on the evidence, the challenge to it must fail.

Social and recreational activities

In respect of this category, the MA recorded:
“She attends regular social recreational activities with her family and does not need prompting. She interacts with people at the club and described being actively engaged during the activities of the club. She goes to the local club weekly and spends 2 hours there and enjoys it.”
As all three psychiatrists assigned a Class 2, it is unnecessary to dwell on the evidence in detail. Dr Bisht recorded:
“Moira only occasionally attends social gatherings. Even when she goes, she does not actively participate. She is able to attend social gatherings without a support person.”
Dr Bisht also recorded the following:
“Most of my close friends are related to the work that I had, and I have been avoiding them.
There is one friend that I talk to every day. Another friend, I meet once a week and sometimes I talk to her through the week. I sometimes meet my other friends when they can meet us. One of my friend’s wives makes me laugh. They will mainly come here. Sometimes Brian takes me and drops me off for a cup of tea, or sometimes I sing. We used to do karaoke.”
The evidence recorded above inexorably leads to the conclusion that it was open to the MA to assign Class 2 in this category. The appellant’s submission that she only attends the local club at the instigation of her husband and doctor does not detract from the MA’s classification.

Travel

The MA recorded the following:
“Ms Ingram is anxious when she leaves home and worries about having diarrhoea. She stopped driving as she could not focus on the road. She is independent in travel around familiar local area.”
Dr Bisht and Dr Clark assigned a Class 2 to this category. Dr Bisht recorded that:
“Moira would likely be unable to travel to unfamiliar places on her own; she is able to travel to familiar places on her own, such as the local shops.”
As is often the case, the line between Classes is a fine one. But the MA recorded an appropriate factual basis on which to diagnose a mild impairment and assign Class 2. The panel also notes that since the termination of employment the appellant has been able to travel to Sydney, presumably with her husband, to visit her children and grandchildren.

Social functioning

This is a category in which the MA assigned a Class 3 whereas both Dr Bisht and Dr Clark had assigned a Class 2. The MA recorded:
“Ms Ingram’s relationship with her partner has deteriorated with periods of separation. She starts arguments with her husband and sons. She is anxious and socially avoidant, and has ceased contact with her friends.”
The criteria in respect of Class 3 are as follows:
“Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
Clearly this is a category where the appellant’s history is largely consistent with a Class 2. However, the MA chose to assign the higher Classification. Certainly, the evidence does not suggest a basis for assigning a Class 4.

Concentration, persistence and pace

The MA recorded:
“Ms Ingram reported having poor concentration. She stopped reading books and driving as she could not focus on these tasks.”
The assessment of concentration persistence and pace is obviously likely to be influenced by a physical examination of the worker. The examples relevant to Class 3 are as follows:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans, make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The examples relevant to Class 4 are as follows:
“Severe impairment: Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even in during brief conversation. Unable to live alone or needs regular assistance from relatives or community services.”
Patently, the appellant’s psychological condition does not fall within Class 4. Again, there is no proper basis for the appellant’s criticism of the MA. Plainly, it was open to him to assign Class 3.

Employability

The MA addressed Employability and Adaption as follows:
“Ms Ingram has not worked or engaged in volunteer roles since the subject injuries and her anxieties impact on the functional capacity.
She can be productive but not more than one or two days at a time, overall less than 20 hours per fortnight.”
The MA’s opinion that the appellant fell within Class 4 is consonant with the opinions of the other psychiatrists on this issue. He gave appropriate reasons for assigning the class. There is nothing to suggest demonstrable error or incorrect criteria.
In each of the categories the MA has formed his own opinion on the relevant class and given sufficient reasons to enable the panel and the parties to understand the way in which he reached that opinion. Thus, he has complied with standard imposed by Kocak.
For these reasons, the appeal panel has determined that the MAC issued on 15 October 2021 should be confirmed.

[2022] NSWPICMP 35

4 March 2022