Kirk v Hanrahans Accounting Services Pty Limited

[2023] NSWPICMP 279

DETERMINATION OF APPEAL PANEL
CITATION:	Kirk v Hanrahans Accounting Services Pty Limited [2023] NSWPICMP 279
APPELLANT:	Hamish Pascoe Kirk
RESPONDENT:	Hanrahans Accounting Services Pty Limited
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	16 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing Social and recreational activities, social functioning, concentration persistence and pace or employability; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant worker, Mr Kirk, appeals from the Medical Assessment Certificate of Medical Assessor Suman dated 21 February 2023.

2. The Medical Assessor examined Mr Kirk on 9 February 2023, and assessed an 8% whole person impairment (psychological) as a result of injury on 30 July 2019.

3. In doing so, he assessed four of the psychiatric impairment rating scales (PIRS) as follows:

   (a)   Social and recreational activities:            Class 1 impairment;

   (b)   Social functioning:   Class 2 impairment;

   (c)   Concentration, persistence and pace:      Class 2 impairment, and

   (d)   Employability:   Class 3 impairment.

4. Mr Kirk submits that the assessment of each of these scales demonstrates error and the application of incorrect criteria. He says that the evidence supported assessments of Class 3, Class 3 or 4, Class 3, and Class 4 respectively.

5. He relies on his supplementary statement signed on 21 March 2023 and a supplementary report of treating psychologist, Dr McManus PhD, dated 13 March 2023.

6. The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.

Submissions

1. The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:

   (a)   The supplementary report of Dr McManus dated 13 March 2023 is fresh or additional evidence which is admissible on appeal, because it is evidence of a medical kind going to the deterioration of the appellant’s condition over ‘the past six months (while waiting assessment)’, and is directly related to the decision to be made by the Medical Assessor.

   (b)   The appellant’s supplementary statement of 21 March 2023 is fresh or additional evidence which is admissible on appeal, because it responds to the history recorded by the Medical Assessor, and was therefore not available prior to assessment, it is information of a medical kind directly related to the decision made by the Medical Assessor, and is probative.

   (c)   With respect to Social and recreational activities:

   (i)the Medical Assessor based his assessment on an inaccurate recording of the history given by the appellant at examination. The Medical Assessor recorded that the appellant meets a close group of friends almost every month, but the appellant says he told him, ‘My brother will drag me out sometimes to see two friends, as he is my caregiver’, that he feels ‘very anxious’ afterwards, and tends to drink as a coping mechanism in response;

   (ii)Dr McManus reports that the appellant ‘agrees to only occasional outings in the company of his brother and one other fried who has PTSD’, and that he finds such outings ‘uncomfortable and anxiety provoking’;

   (iii)though the Medical Assessor’s ‘wording is virtually identical to that of
   Dr Chow and Dr Synnott in their assessments’, his assessment was different - Dr Chow assessed a Class 3 impairment, and Dr Synnott assessed Class 2.;

   (iv)the Medical Assessor did not have regard to the evidence ‘as referenced’ in the Application to Resolve a Dispute;

   (v)the evidence supports a Class 3 impairment at least, having regard to his most recent statement and other statements, and

   (vi)the Medical Assessor ‘provides insufficient reasons or does not take a whole of evidence approach to allocation of Class 2’.

   (d)   With respect to Social functioning:

   (i)the evidence justified a Class 3 or Class 4 impairment, because of the loss of close friends, and because the appellant has ‘only one friend who occasionally visits him at home’, and because his relationship with his brother is ‘strained’, and

   (ii)the Medical Assessor’s reasons for assessing a Class 2 impairment were insufficient, because Dr Chow and Dr Synnott assessed Class 3.

   (e)   With respect to Concentration, persistence and pace:

   (i)the Medical Assessor based his assessment of a Class 2 impairment on an incorrect history that the appellant was performing his pre-injury duties. There was no evidence to support that finding. The evidence was that he is now working in his own practice as an accountant under supervision, because he cannot work without it. The Medical Assessor failed to take this into account;

   (ii)the evidence was that he no longer engages in hobbies;

   (iii)the Medical Assessor failed to refer to the most recent report of Dr Synnott dated 28 June 2022, who assessed a Class 3 impairment;

   (iv)the evidence supports a Class 3 impairment, and

   (v)insufficient reasons were given for the assessment of Class 2.

   (f)    With respect to Employability:

   (i)the appellant repeats the submission in (e)(i) above;

   (ii)Dr Chow and Dr Synnott agreed that he was incapable of his pre-injury employment and that his capacity to work as an accountant was limited;

   (iii)the evidence justifies a Class 4 impairment because he has difficulty concentrating and does not perform complex tasks, and

   (iv)the Medical Assessor ‘has applied incorrect criteria and/or provided insufficient reasons to the allocation of Class 3’.

2. The respondent submits in brief summary as follows:

   (a) Leave to rely on the appellant’s supplementary statement and the supplementary report of Dr McManus is opposed, as neither satisfies the requirements of section 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998. In particular, the latter report contains evidence that has always been available.

   (b)   The history taken by the Medical Assessor was broadly consistent with the other evidence, and in particularly with the history taken by Dr Synnott. The inaccuracies alleged by the Appellant relate only to three sentences recorded by the Medical Assessor at pars 2, 6 and 13 of the Medical Assessment Certificate, and form only a small part of the detailed history taken.

   (c)   In any event, the Medical Assessor was obliged and entitled to make his own clinical assessment, and pre-eminence should be given to his clinical observations: Ferguson v State of NSW [2017] NSWSC 87 at [23].

Supplementary report of Dr McManus dated 13 March 2023

1. Dr McManus is the appellant’s treating psychologist. The Medical Assessor took a history that Dr McManus first treated the appellant from 2009 to 2011 for an adjustment disorder with mixed anxiety and depressed mood in the context of a relationship breakdown, from which he had recovered well by 2011. The Medical Assessor noted that the appellant had also consulted Dr McManus since 2019, when the appellant was experiencing stress in the workplace.

2. Under the heading, “Review of documentation’, the Medical Assessor took into account
   Dr McManus’ reports of 18 November 2019, 5 September 2019 and 28 October 2021. The latter report described a deterioration over the past two weeks including panic attacks, rendering Mr Kirk unfit for work.

3. Under the heading, ‘Functioning over the last two months’, the Medical Assessor recorded that, as at examination on 9 February 2023, Mr Kirk continued to see Dr McManus ‘every two to four weeks’.

4. In his supplementary report of 13 March 2023, Dr McManus commented on and refuted the assessment of the Medical Assessor. He explained that he had been treating Mr Kirk for his current condition since August 2019 and continued to do so. He did not say when he last examined Mr Kirk. Even accepting Mr Kirk’s evidence to the Medical Assessor that, up to
   9 February 2023, he had been seeing Dr McManus every two or four weeks, it is not clear from Dr McManus’ report whether he had in fact assessed Mr Kirk since Dr Suman examined him on 9 February 2023.

5. Dr McManus said, “I would like to comment on the PIRS Categories and Conclusions and note that a lot of the behaviours described have deteriorated in the last six months and I anticipate a continuing deterioration”.

6. He did not describe what he meant by the ‘last six months’. We interpret him to mean the six months since he last saw the appellant, but he does not say when that was. The appellant’s submissions provide assistance. They describe the period in question as the six months while he was ‘waiting for assessment’ by Dr Suman. Dr Suman examined him on 9 February 2023 and issued his assessment shortly thereafter on 21 February 2023. We interpret
   Dr McManus as meaning the six months prior to assessment in February 2023. Nothing turns on it.

7. He goes on to provide his own assessment of impairment in respect of the each of the PIRS scales the subject of appeal, and others. He also offers different diagnoses from the adjustment disorder with mixed anxiety and depressed mood diagnosed by Medical Assessor Suman, who made detailed reference to the DSM-V criteria.

8. Section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 provides that fresh or additional evidence may not be given on appeal ‘unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment’.

9. The appellant’s submissions do not explain why an assessment and diagnosis could not reasonably have been obtained from Dr McManus prior to assessment by the Medical Assessor. The submission that Dr McManus’ report responds to the Medical Assessor’s assessment does not supply any such reason. We are not persuaded that the report could not reasonably have been obtained prior to assessment.

10. The report is excluded by operation of s 328(3).

Appellant’s supplementary statement

1. In his supplementary statement of 21 March 2023, the appellant refutes the accuracy of the following history taken by the Medical Assessor: “Mr Kirk told me that he is managing the business in partnership. He told me, ‘I do accounting work. My partner helps me’”.

2. In his statement, Mr Kirk said he told the Medical Assessor that his business partner “holds the tax licence which enables [Mr Kirk] to work on the basis that [the business partner] reviews all [Mr Kirk’s] work before he approves lodgements with the ATO”.

3. He continued, “I cannot operate my partnership without his license. My relationship with him is crucial and this relationship has become strained, as we have not met since November 2022”.

4. He does not expressly say that the last sentence formed part of what he told the Medical Assessor. It may simply be an explanation, for the benefit of this Panel, as to the practical effect of his partner being the licence holder, and an observation as to the relationship difficulties between the two.

5. In any event, it does not prove that the appellant is incapable of working as an accountant. The Medical Assessor’s reasons for assessing Employability (reproduced below) made plain that he was well aware the appellant was not capable of working his pre-injury hours as an accountant. He made a finding, which is not contested, that the appellant continued to work in the role of an accountant [hours].

6. Mr Kirk also refuted the correctness of the following history taken by the Medical Assessor: “Mr Kirk told me that he started struggling to manage his work due to his mental health issues by mid-2019. He started to struggle with concentration”.

7. He said he told the Medical Assessor that his ‘struggle with concentration is the major reason I can only work a few hours a week’. He went on to describe the consequent interference with his ability to work, making ‘complex tasks … impossible’.

8. Even if this is true, it is not necessarily inconsistent with the history taken by the Medical Assessor that he started to struggle with mental health issues and concentration by 2019. It does not refute the history taken.

9. Mr Kirk also refuted the following history taken by the Medical Assessor: “He told me he has a close group of friends he meets almost every month”.

10. In his statement, Mr Kirk said he told the Medical Assessor that his brother “will drag me out sometimes to see two friends”, that a friend with post-traumatic stress disorder “visits me sometimes with his support dog … at my flat”, that he feels very anxious when out with his brother and relaxes after a few beers, drinking too much as a coping mechanism, and that he “avoids going out as much as possible”.

11. This evidence cannot establish demonstrable error, because by its nature, demonstrable error is error which appears on the face of the Medical Assessment Certificate and the referral for assessment, and does not require reference to other material: Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939.

12. Even if the statement were relevant to an allegation that incorrect criteria have been applied, it can only be admissible if it has substantial prima facie probative value, plausibility and/or independent support: Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 per Hodgson JA [at 78]. There is no independent support for the allegations made. They have the status of allegations only. While we by no means dismiss them, we are not in a position to assess them as having ‘substantial’ prima facie probative value or plausibility. They do not satisfy the test in Lukacevic, and are not admissible on appeal. There is also a public interest in the finality of litigation, which admitting this evidence will not serve. In the absence of a response from the Medical Assessor, there are issues of procedural fairness, which admitting the evidence will not satisfy: Lukacevic at [111]. For all those reasons, in our view, it ought not be admitted on appeal.

Social and recreational activities

31.  In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a Class 1 impairment in respect of this scale:

“Mr Kirk told me that he does go out with a close group of friends “We go out for a beer once a month.” Mr Kirk told me that he does enjoy such outings.”

1. Under the heading, “Functioning over the last two months’, the Medical Assessor took the following additional history:

   “Mr Kirk told me that he stays at home most of the time. He avoids any significant social interaction. …. He told me he has a close group of friends he meets almost every month.”

2. The task of the Medical Assessor was to obtain details of the current impairment of the worker, relevant to this rating scale, and to assess into which category of impairment it best fit, having regard to the criteria in the Guidelines.

3. The criteria for rating impairment in Social and recreational activities are relevantly as follows:

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.

1. There are a number of distinctions between these criteria. Class 1 requires that a worker participates ‘regularly’ in appropriate social activities. Class 2 requires that he or she goes to such events ‘occasionally’, class 3 ‘rarely’. Class 2 requires that a support person is not needed. Class 3 requires that a support person is required.

2. The history taken by the Medical Assessor was that the worker sees his friends ‘almost’ every month, but in the PIRS table he records that the worker goes out with them ‘monthly’. There is conflict between these two histories. The frequency of social activity is relevant to the assessment of Class 1, 2 or 3 impairment. The Medical Assessor does not say whether he found that social activity was regular, occasional or rare.

3. On the basis of the history taken and the Medical Assessor’s reasons, it seems the appellant goes out at most once a month with a close group of friends, but otherwise ‘avoids social interaction’. The Medical Assessor did not make an express finding that this constitutes ‘regular’ participation in appropriate social activities, but his assessment of a Class 1 impairment suggests that he must have done so.

4. He does not appear to have turned his mind to whether these social activities could be classed as ‘occasional’, attracting a Class 2 impairment, or ‘rare’, attracting a Class 3 impairment.

5. He made no mention of whether a support person is required or not.

6. In those circumstances, his reasons do not disclose why the Medical Assessor has selected a Class 1 impairment over a Class 2 impairment, and do not permit the Appeal Panel to discern whether there has been error in that selection. The omission to find whether a support person is needed means that there are insufficient reasons to explain why a Class 3 impairment was not considered.

7. This insufficiency of reasons demonstrates error, though it is error of a kind that can be corrected without further examination.

8. In our view, the monthly or near-monthly social outings are best characterised as ‘occasional’, rather than ‘regular’ or ‘rare’. The worker’s statement dated 27 September 2022 indicates that he joins his brother at ‘our local pub’, even though he sometimes spends time alone at the poker machines and no longer has the energy to go into the city to participate in the All Black Supporters’ Club. Evidence of his social outings supports the conclusion that he is not ‘quiet and withdrawn’ as required for a Class 3 impairment. Whether or not the brother is regarded as a support person for the purposes of the criteria, the evidence before the Medical Assessor demonstrates that the category into which the worker best fit was a Class 2 impairment.

Social functioning

1. In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a Class 2 impairment in respect of Social functioning:

   “Mr Kirk told me that he has lost ‘60% of my friends’. He told me that his brother gets angry with him although does support him.”

2. The criteria for rating impairment in Social functioning are relevantly as follows:

Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).

1. The reasons given by the Medical Assessor demonstrate that the important relationship with his brother was strained, though it continued. They also supported a finding that there had been a loss of friendships – in this case, most of them. Those reasons were consistent with the criteria for a Class 2 impairment. It was reasonably open to the Medical Assessor to assess a Class 2.

1. There were no findings of periods of separation or domestic violence, or that pre-existing relationships which continued were ‘severely strained’, sufficient to support a Class 3 impairment. It is clear from the evidence that the appellant was able to sustain his long term relationship with his brother, even if there was strain in that relationship. That evidence does not support a Class 4 impairment. We can discern no error or the application of incorrect criteria in the assessment of a Class 2 impairment.

Concentration, persistence and pace

1. In his PIRS form, the Medical Assessor gave the following reasons for assessing a Class 2 impairment in respect of Concentration, persistence and pace:

   ‘Mr Kirk told me that he gets tired easily. He finds himself struggling with his energy and motivation on some days “I have to work at a slower pace”.’

2. The relevant criteria for assessing Concentration, persistence and pace are as follows:

Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.

1. So far as we can tell from the Medical Assessor’s reasons, he did not turn his mind to whether the appellant satisfied the criteria for Class 3 or Class 4 impairment. For instance, he did not enquire whether the appellant could read books or other material rather than just newspaper articles, or whether he was capable of following complex instructions. In the absence of such information, it is not clear why a Class 3 impairment was not selected.

2. However, this is the one rating scale in respect of which the Medical Assessor’s findings on examination can form the basis, or part of the basis, for an assessment. On examination, the Medical Assessor found that ‘I was not able to elicit thought disorder …... I was not able to elicit any significant cognitive deficits as per the rudimentary cognitive assessment’. This is consistent with a mild impairment only. It provides no basis for a Class 3 or 4 impairment.

3. The appellant’s statement dated 27 September 2022 indicates that he is able to concentrate on cognitively demanding tasks for up to three and a half hours before feeling so fatigued that he stops, although there is a reduction in the complexity of these tasks compared to his previous functioning. This is also consistent, in our view, with a mild impairment, justifying the assessment of a Class 2 impairment.

4. In all the circumstances, even if the reasons expressed by the Medical Assessor were insufficient to disclose why a Class 2 impairment was assessed, the error did not affect the outcome, because the evidence before the Medical Assessor amply supported a Class 2 impairment, and such an assessment was well open to him. We would make that assessment if required to do so.

Employability

1. In his PIRS form, the Medical Assessor gave the following reasons for assessing a Class 3 impairment in respect of Employability:

   “Mr Kirk is able to manage his pre-injury job i.e. accounting role, working 8-12 hrs/week.”

2. The criteria for rating impairment in Employability are relevantly as follows:

Class 3	Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4	Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

1. The history taken by the Medical Assessor was that the appellant was working 8 to 12 hours per week, which is between 16 and 24 hours per fortnight. That is equally capable of supporting a Class 3 or 4 impairment. The appellant’s statement suggests he does this regularly for the first three days of the week. That is not consistent with a Class 4 impairment, which requires that the worker cannot work more than two days at a time. We note the worker’s evidence that, after three days, he is “exhausted and often unable to complete any further work tasks for the rest of the week”, but he is nevertheless able to work more than two days at a time.

2. Even if, as submitted, the reasoning of the Medical Assessor was insufficient to disclose why he selected a Class 3 impairment in preference to Class 4, the evidence before him amply supported a Class 3 impairment. We can identify no error affecting the outcome. We note also that this assessment was consistent with that of both Dr Chow and Dr Synnott.

Conclusion

1. For the reasons given, we have identified error in the assessment of Social and recreational activities. That error can be corrected by the assessment of a Class 2 impairment, on the basis of the evidence before us.

2. The Medical Assessment Certificate of Medical Assessor Suman is revoked and replaced by the attached Medical Assessment Certificate.

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W6277/22
Applicant:	Hamish Pascoe Kirk
Respondent:	Hanrahans Accounting Services Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Suman and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

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)
Psychological injury	30 July 2019	Chapter 11 p.54-60	Chapter 14	8%	0%	8%
Total % WPI (the Combined Table values of all sub-totals)					8%

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Hamish Pascoe Kirk	Claim reference number (if known)
DOB	[redacted]	Age at time of injury
Date of Injury	30 July 2019	Occupation at time of injury	Accountant
Date of Assessment	9th Feb 2023	Marital Status before injury	Single

Psychiatric diagnoses	1.Adjustment disorder with mixed anxiety and depressed mood.
Psychiatric treatment	Psychological therapy
Is impairment permanent?	Yes
PIRS Category			Class		Reason for Decision
Self Care and personal hygiene			3		Mr Kirk told me that he takes a shower 2-3 times a week “sometimes my brother has to remind me as my room is smelling”. He told me that his brother cooks or brings takeaway food “I have given up cooking”.
Social and recreational activities			2		Mr Kirk told me that he does go out with a close group of friends “We go out for a beer once a month.” Mr Kirk told me that he does enjoy such outings.
Travel			2		Mr Kirk told me that he does struggle with confidence related to driving “I caused an accident driving my brother’s car last year. I drive only when necessary”. Mr Kirk told me that he is able to shop independently although does avoid it if not required.
Social functioning			2		Mr Kirk told me that he has lost “60 % of my friends”. He told me that his brother gets angry with him although does support him.
Concentration, persistence and pace			2		Mr Kirk told me that he gets tired easily. He finds himself struggling with his energy and motivation on some days “I have to work at a slower pace”.
Employability			3		Mr Kirk is able to manage his pre-injury job i.e. accounting role, working 8-12 hrs/week.
Score										Median Class
3	2	2		2		2	3		=2
Aggregate Score Impairment								Total
+3	+2	+2		+2		+2	+3		= 14

WPI   7%

Deduction for the pre-existing psychological condition – nil

W C treatment effect clause

Considering clause 1.32 of NSW workers compensation guidelines for evaluation of permanent impairment

(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.)

I have added 1% to the final score (considering the positive clinical response to the psychological input)

Final WPI 8%