Lancaster v Foxtel Management Pty Ltd
[2021] NSWPICMP 176
•21 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lancaster v Foxtel Management Pty Ltd [2021] NSWPICMP 176 |
| APPELLANT: | Mark Lancaster |
| RESPONDENT: | Foxtel Management Pty Ltd |
| APPEAL PANEL: | Member Elizabeth Beilby Dr Julian Parmegiani Professor Nicholas Glozier |
| DATE OF DECISION: | 21 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Consideration of psychiatric impairment rating scale categories; additional evidence application permitted to remedy factual matters; Held – Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 July 2020 Mark Lancaster lodged an Application to Appeal Against the Decision of an Approved Medical Specialist (AMS). The medical dispute was assessed by Dr Michael Hong, an (AMS) who issued a Medical Assessment Certificate (MAC) on 22 June 2020.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground 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.
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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant claims that he has suffered a psychological injury by reason of bullying and harassment in the workplace. There is no dispute that the appellant suffered an injury.
The appellant made a claim for 19% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The matter was referred to an AMS Dr Michael Hong, who issued a Medical Assessment Certificate dated 22 June 2020. Dr Hong assessed the appellant’s whole person impairment as a result of the work-related injury as 9%.
The matter was then referred to a Medical Appeal Panel who issued a decision on 13 October 2020 confirming the appellant’s whole person impairment as assessed by Dr Hong.
The determination of the Appeal Panel was considered by the Supreme Court in Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745 on 24 June 2021.
The Supreme Court considered that the determination by the Appeal Panel not to re-examine the plaintiff in circumstances where it failed to provide its reasons for not doing so, denied the plaintiff procedural fairness and fell into jurisdictional error.
The decision of the Medical Appeal Panel was quashed and has now been remitted to the presently constituted Medical Appeal Panel for determination according to law.
The appellant seeks relief in respect of the AMS’s categorisation of impairment relating to “social and recreational activities”, “self-care and hygiene” and “social functioning”.
Fresh evidence
The appellant seeks to admit the following evidence:
(a) statement of the appellant dated 17 July 2020.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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.
The appellant submits that the evidence is relevant as it is relevant to the conduct of the examination and the impact it had on the appellant. The appellant submits that the statement ought to be admitted into evidence as it goes to the correctness of the Medical Appeal Certificate issued by Dr Hong and goes to correct the errors contained within that assessment.[1]
[1] Applicant’s submissions page 10
The respondent objects to the admission of the appellant’s additional statement on the grounds that pursuant to s 328(3) of the 1998 Act. In essence, the respondent submitted that the matters raised in the statement are arguably seeking to “rewrite” the nature of the examination.[2]
[2] Paras 16, 17 and 18 of the respondent’s submissions.
The Appeal Panel has determined that the evidence should be received on the appeal. The admission of fresh evidence into appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWCCPD 7 (Ross). In Ross, the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons(1954) 93 CLR 418;Orr v Holmes(1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The Appeal Panel has considered the nature of the material in the additional statement and feels that it does try to remedy errors made by the AMS and as such it is relevant. The material was not available before the assessment on the basis that there was no knowledge by the appellant that indeed there would be material errors recorded by the assessor. It is on that basis that the evidence should be received by the appeal panel.
In Petrovic v BC Serv No.14 Pty Ltd & Ors [2007] NSWSC 1156, the Court held that “additional relevant information … does not include matters going to the process whereby the AMS makes his or her assessment”. To this extent the Medical Appeal Panel cannot accept statement material that goes towards the process whereby the AMS makes his or her assessment, we only accept the evidence in relation to correcting factual assumptions made by the AMS.
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 not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.
There is no doubt an Appeal Panel has a power to re-examine a claimant by reason of
s 324(1)(c) and s 324(3). In the circumstances of this case however, the Appeal Panel is satisfied that there was a significant amount of expert material, treating records and also evidence from the appellant to satisfy itself that a re-examination is not necessary.The Appel Panel also has the benefit of the applicant’s statement which addresses the alleged flawed factual matters that the appellant states the AMS took into account in reaching his assessment.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The appellant seeks relief in respect of the AMS’s categorisation of impairment relating to “social and recreational activities”, “self-care and hygiene” and “social functioning”.
The relevant parts to the Medical Assessment Certificate will now be outlined:
“Present Symptoms[3]
[3] Page 2 of the Medical Assessment Certificate
·Mr Lancaster said he does not feel confident and is always anxious. He said the things that he struggles with the most is his “comprehension” and that he takes things very literally and finds it hard to think or to read, ever since his psychological injury sustained at Foxtel. When his psychologist sends him an email, he makes mistakes reading it. When he writes an email in reply, he has to rewrite it.
·On specific enquiry, Mr Lancaster reported experiencing the following symptoms:
oPersistently depressed mood;
oReduced enjoyment and poor motivation;
oHaving poor concentration and difficulties with his memory;
oFleeting suicidal thoughts;
oDisturbed sleep and occasionally nightmares;
oBeing irritable, he would swear at his friends sometimes;
oPanic attack like symptoms;
oLoss of confidence.
·Mr Lancaster lives by himself. He has an 18-year old daughter living with his ex-wife and he usually sees her every second week. He reported an increasingly tense relationship with his daughter[4] .
[4] Page 3 of the Medical Assessment Certificate
·After the issues at Foxtel, Mr Lancaster described eating a poor diet and over-eating with stress and had gained weight. He subsequently developed type 2 diabetes. He has been making an effort to improve his self-care. He exercises regularly and plays table-tennis with two different clubs, 3 times a week until COVID-19. Mr Lancaster has been eating a healthy diet and successfully lost weight and is currently 79kgs. He wants to lose more weight. Mr Lancaster cooks for himself and usually makes a batch of meals that he freezes. He tries to follow a low carb diet and eating a diet with fruits, vegetables, meat and fish. Recently, Mr Lancaster eats regularly and checks his blood sugar 3 to 6 times a day, and reported that his blood sugar had been pretty stable recently. He says he has to be careful that he does not eat enough for the exercise he does, that he does not become hypoglycaemic[5].
[5] Page 4 of the Medical Assessment Certificate
·Mr Lancaster only showers 3 times a week. He does not see the need to shower every day and he lacks motivation to do so and he will shower after exercises.
·Mr Lancaster describes problems with his temper and said that he went to Westfield Shopping Centre and saw some teenagers breaking the COVID-19 social distancing rules, he became snappy and angry at them. He went on to explain that he does not trust himself any more, as he cannot control his temper and he also worries that with his 14 years of martial arts training, if he loses his temper he can seriously hurt other people.
·Mr Lancaster has been going to the table tennis clubs, but has problems with the people there and he would yell when he gets angry and some of the other players have made a complaint against him.
·Mr Lancaster described another incident where there was an old lady at Westfield and she was walking and then suddenly stopped in front of him. They exchanged words and she said that he should not have walked so close. Mr Lancaster took offence and was stewing on it all day.
·Mr Lancaster said that he gets emotional and sometimes he will cry just watching television. Mr Lancaster said he tends to do 4 to 10 hours exercise per week. He has some equipment at home. He has been kayaking regularly 2 or 3 times a week for about 2 to 4 hours predominantly by himself.
·Mr Lancaster goes shopping and prepares food for himself.
·Mr Lancaster had many friends normally but now his main contact is his ex-wife and a friend. He reported the relationship with his daughter has become strained as well and he sees her every two weeks.
Self-care and personal hygiene
·Mr Lancaster does not shower regularly. Mr Lancaster eats regularly of his own volition and manages his blood sugar level well. He exercises regularly and has been successfully losing weight. Mr Lancaster is capable of independent living without regular support and has been doing so for a few years. He has improved since Associate Professor Robertson’s assessment – Class 2.
Social and Recreational Activities
·Mr Lancaster has ceased to enjoy hobbies and engage in new recreational activities, by himself and with other people, on a regular basis – Class 2.
Social functioning
·No partnership for many years. Loss of friendships in the context of his psychological injury. Relationship with daughter has deteriorated – Class 2.”
SUBMISSIONS
Both parties made written submissions. They are not repeated but have been considered by the Appeal Panel in reaching its decision.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 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 psychiatric impairment rating scale (PIRS) is established as the rating criteria for assessing psychiatric/psychological impairment by virtue of chapter 11 of the Guides.
Chapter 11.12[6] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring of a PIRS. The examples of activities are examples only. The assessor psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[6] See Guides 55
In Glenn William Parker v Select Civil Pty Ltd [2018] NSWSC 140 Harrison ASJ said at paragraph 66:
“In relation to classes of PIRS, there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense.”
In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Justice Garling said at paragraph 73:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
The Appeal Panel therefore considers for the PIRS categories assessed by the AMS to be erroneous it must fall into one of the following categories:
(a) the categorisation was glaringly improbable;
(b) the AMS was not aware of significant factual matters;
(c) a clear misunderstanding could be demonstrated, and
(d) the unsupportable reasoning process could not be made out.[7]
[7] See Campbell J’s discussion in Ferguson [2017] NSWSC 887.
The Appeal Panel will now look at each of the PIRS category that the appellant submits has been improperly classified.
Self-Care and Personal Hygiene
Table 11.1 of the Guidelines provides as follows:
“Class 2: mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally, sometimes misses a meal or relies on takeaway food.
The appellant seeks a re-classification of a Class 3 rating which is:
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 to 3 times a week to ensure minimal level of hygiene and nutrition.”
Social and Recreational Activities
Table 11.2 of the Guidelines provides as follows:
“Class 2: mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (dancing, cheering favourite team).
The appellant seeks a reclassification of a Class 3 rating which is:
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.”
Social Functioning
Table 11.4 of the Guidelines provides as follows:
“Class 2: mild impairment: existing relationships strained. Tension and arguments with partner or close member, loss of some friendships.
The appellant seeks a reclassification of a Class 3 rating which is
Class 3: moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services are looking after children.”
The Appellant’s Statement
The appellant’s additional statement has been admitted remedying any factual assumptions that the AMS has made in the assessment. The Appeal Panel will now outline the relevant evidence therein.
The appellant states that he gained weight due to the medication he was taking for his injury and not just due to a poor diet.
In relation to exercise the appellant told Dr Hong that he tried to exercise regularly but had to force himself due to lack of motivation and fatigue. The appellant also corrects that his current weight is 72kgs but does not dispute that he had successfully lost weight.
The appellant points out that he did not tell the AMS that he had a low carb diet and ate a diet with fruit, vegetables, meat, and fish. Rather, the appellant says he told the doctor that he had a diabetic diet and avoided eating fruit.
The appellant explains that whilst he does cook for himself and usually makes a batch of meals, he freezes it. The appellant explained that he does this because it helps him to eat regularly, however he is not motivated to cook or eat.
The appellant also explains that he wished he had told Dr Hong that he did indeed often skip meals and will often binge eat particularly after dinner.
In relation to going shopping and preparing food, the appellant says that he only goes shopping and prepares food when it is absolutely necessary. He has to force himself to cook and his friend Garth often has to force him to get out of the house and care for himself.
In addition, the appellant says that some matters were not recorded in the medical assessment certificate and he has outlined that in paragraph (xxiii) in his statement. This includes his struggles to clean his apartment and that often leaves dirty dishes and washing unattended. He has angry outbursts while driving about insignificant things. He finds himself uncomfortable around other people especially women. He cannot read a book because he loses the plot and cannot remember the characters. When watching TV he will put the sub-titles on to try and keep up with the plot.
It is the appellant’s opinion that he has not improved since the assessment by Professor Robertson.
Consideration of assessment
Selfcare and Personal Hygiene
The appellant says he has difficulty exercising and struggles to do so. He loses motivation very easily.
The appellant prepares his own food and freezes it, however, lacks motivation to cook or to eat. The appellant is able to avoid eating fruit to assist in managing his diabetic diet. He has successfully lost weight.
The appellant struggles to clean his apartment and often leaves dishes and washing unattended.
There is also reference to showering not being performed regularly. The appellant only showers three days a week and does not see the need to shower any more.
After considering the evidence in this matter, the Appeal Panel can find no error in the classification of class 2 in respect of Self-Care and Hygiene. The evidence elicited by the AMS, and that in the appellant’s own statement illustrates a mild impairment
The AMS is entitled to rely on his findings on examination on the day which obviously differ from that of Associate Professor Robertson, and the improved glycaemic control supports the AMS’s findings.
The Appeal Panel accepts the evidence contained in the additional evidence however, even on that basis, cannot find any error in the classification of Class 2.
Social and recreational activities
There is no evidence that the appellant requires a support person to leave the house though the Appeal Panel accepts that his friend Garth assists him at times. On other occasions the appellant is able to go kayaking and shopping by himself.
The Appeal Panel accepts that the appellant does not engage in new hobbies though has tried, unsuccessfully, to read, learn the piano and play guitar. His table tennis matches have led to complaints due to his aggressive nature, although he was playing several times a week prior to the COVID lockdown.
The Appeal Panel observes the loss of recreations and social activities as described by the appellant in his statement (at page 7 of the Application to Resolve a Dispute) and the same classification of a Class 2 by the other psychiatrist who provided a rating, A/Prof Robertson.
The Appeal Panel can discern no error in the classification of Class 2.
Social Functioning
The appellant’s social functioning has been classed as class 2. The AMS relied upon the appellant having lost friendships, the relationship with his daughter has deteriorated and he has had no partnership for many years, although maintains contact with his ex-wife.
There is no doubt that the appellant’s evidence has been accepted by the AMS, that is he has an 18-year-old daughter with whom his relationship has deteriorated. The appellant also says that he does not have many friends at all. However reference is made to his friend Garth who assists him in leaving the house and to care for himself
The appellant also says that he has difficulties maintaining his temper and is easily aggravated to the extent that there have been complaints made about him relating to his table tennis.
The Appeal Panel observes that this is the same rating given by A/ Prof Robertson, the independent expert qualified on behalf of the appellant.
The AMS appears to have exercised his clinical judgement and skill on the day of the examination with regard to the other evidence that was before him. The Appeal Panel has additionally considered the statement evidence made by the appellant and can find no error in classifying the appellant as a class 2.
Conclusion
The Panel observes that the AMS took a detailed history of the appellant’s symptomatology and experience. Whilst there are small changes that the appellant has now brought to the attention of the Appeal Panel, they do not demonstrate any error in the classifications made by the medical assessor, and to a large extent support them.
The Appeal Panel is satisfied that there is no demonstrable error in the MAC in relation to the finding in those PIRS categories.
In conclusion, the Appeal Panel does not consider that a demonstrable error in the assessment of the medical assessments.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 June 2020 should be confirmed.
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