Luck v Australian Health Management Group Pty Ltd
[2023] NSWPICMP 417
•28 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Luck v Australian Health Management Group Pty Ltd [2023] NSWPICMP 417 |
| APPELLANT: | Melanie Luck |
| RESPONDENT: | Workers Compensation Nominal Insurer |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 28 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against assessment 7% whole person impairment (WPI) for psychiatric injury on basis of deterioration, availability of additional relevant information, incorrect criteria and error; fresh evidence not admitted as had insufficient probative value; allegation of deterioration not supported by any medical evidence of an increase in the level of permanent impairment; no error of application of incorrect criteria in assessment of social and recreational activities; error in assessment of concentration, persistence and pace as Medical Assessor did not provide adequate reasons for assessment of class 2; Panel assessed class 3 for concentration, persistence and pace and 8% WPI; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 February 2023 Melanie Luck (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 July 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· 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 was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment was conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant developed a primary psychological injury in the course of her employment with Australian Health Management Group Pty Ltd (the respondent) as a knowledge management analyst.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) claiming 19% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 5 March 2019.
The Medical Assessor examined the appellant on 13 July 2022 through video link. The Medical Assessor assessed 8% WPI and then deducted one tenth in respect of a pre-existing condition pursuant to s 323 of the 1998 Act. Therefore, the total WPI assessed was 7% as a result of the injury deemed to have occurred on 5 March 2019.
The appellant filed an Appeal Against Decision of Medical Assessor on 15 August 2022 pursuant to ss 327 and 328 of the 1998 Act in the Commission’s Workers’ Compensation Division. The appellant contended that the Medical Assessor had made factual errors and that her Psychiatric Impairment Rating Scale (PIRS) class categorisation in two particular categories, concentration, persistence and pace and social functioning, should be increased from class 2 to class 3 respectively. The appellant also sought to rely on an additional statement that set out, what was in her submission, relevant additional material not available at the time of the assessment with the Medical Assessor, being the discovery of her husband’s affair and her marriage break-down. The appellant sought a re-examination by the Medical Appeal Panel and a reconsideration of her WPI.
The matter was referred to a Medical Appeal Panel which handed down its decision declining to re-examine the appellant, declining to admit the appellant’ s further statement dated 12 August 2022 and otherwise dismissing her appeal on 16 November 2022.
The appellant filed an Amended Summons in the Supreme Court of New South Wales on 28 February 2023 seeking judicial review of the decision of the Medical Appeal Panel dated 16 November 2022.
Weinstein J heard the matter on 21 June 2023 and on 19 July 2023 made the following orders:
“(1) The decision of the Third Defendant made on 16 November 2022 is quashed.
(2) The Certificate of Determination dated 22 December 2022 is set aside.
(3) The Plaintiff’s application to appeal against a decision of a medical assessor dated 15 August 2022 is remitted to the Second Defendant for referral to a differently constituted Appeal Panel for determination according to law.
(4) The First Defendant is to pay the Plaintiff’s costs of the proceedings, as agreed or assessed.”
On 28 July 2023, this Appeal Panel (the Appeal Panel) was constituted to determine the matter according to law.
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 Procedural Direction PIC7.
The appellant requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent submitted that the appellant had not provided any evidence in her appeal which would indicate that a further examination was required. Additionally, the appellant did not provide evidence that the asserted errors contained in the MAC of Professor Glozier could not be reviewed on the papers. The respondent submitted that a further re-examination was unwarranted.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.
Fresh evidence
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 seeks to admit the following evidence:
(a) statement of the appellant dated 12 August 2022 and annexures.
The appellant submitted that this evidence was not in existence at the time of the medical assessment on 13 July 2022 and was fresh evidence. The appellant in this statement provided details about the examination by the Medical Assessor and a change in her personal circumstances that has arisen since the Medical Assessor’s examination. Therefore, this evidence was not available and could not have been obtained prior to the medical assessment. The appellant submitted that this evidence should be admitted as it had substantial probative value insofar as it provided evidence of a deterioration in her condition, which had arisen due to a change in her family circumstances after the medical assessment. The appellant submitted that the evidence was such that it was capable of changing the outcome of the assessment.
The appellant noted that the statement also dealt with matters concerning the conduct of the medical assessment and factual issues that were relevant to the determination of the matter specifically relating to the engagement of the appellant in social and recreational activities and her concentration and the Medical Assessor’s findings in that regard. The appellant submitted that the statement had substantial probative value and it was in the interests of justice and proper determination of the matter for the statement to be admitted as fresh evidence.
The respondent opposed the admission of the fresh evidence, referring to the decision in Halliday v G4S Custodial Services Pty Ltd [20 August 2019] M1-1452/19, where it was held that admission into evidence of statements which essentially cavil with the opinion an Approved Medical Specialist ought not be admitted by Medical Appeal Panel, otherwise “every aggrieved worker could submit a statement addressing the assessment to automatically meet the requirements for a medical appeal”. Reference was also made to the earlier decision of Petrovic v BC Serv No 14 Pty Ltd t/as Broadlex Cleaning Services [2007] NSWSC 1156 (Petrovic) where Hoeben J found that it was critical to consider the content of any statement attached to an application for appeal as containing evidence relevant to the grounds of appeal alleged. His Honour stated that in circumstances where all appellants were to be allowed to provide statement evidence in support of an appeal without consideration for its contents, “…it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.”
In Petrovic, His Honour further noted that:
“…the information must be relevant to the task which was being performed by the AMS…additional relevant information for the purposes of section 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment”.
It was held that statements which related to the way in which an Approved Medical Specialist carried out the examination and the way in which questions and answers were interpreted during examination did not constitute additional relevant information for the purposes of s 327(3)(b).
The respondent noted that paragraphs 3 to 16 of the appellant’s statement addressed the way in which the Medical Assessor conducted his examination. The respondent submitted that the appellant’s statement largely addressed the way in which the Medical Assessor carried out the assessment and contained her criticisms of how he carried out his examination. The respondent submitted that in the circumstances, the decision in Petrovic ought to apply to discount all or at least part of the appellant’s statement when considering whether grounds for appeal were made out in accordance with s 327(3)(b), on the basis that the statement did not contain “additional relevant information”.
The respondent then referred to the decision of State of New South Wales v Ali [2018] NSWSC 1783 (Ali), where it was noted by His Honour Harrison J that s 327(3)(b) limited that right of appeal to circumstances where additional relevant information was available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“Section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite. That limitation suggests, as a matter of ordinary statutory construction, that an appeal with respect to an alleged reduction in the degree of permanent impairment is neither contemplated by the words of s 327 in general nor provided by s 327(3)(b) in particular.”
The respondent submitted that contrary to the decision of Ali, the appellant sought an appeal in accordance with s 327(3)(b) on the grounds that her circumstances have since changed, that being the breakdown of her marriage. The respondent submitted that decision in Ali ought to prevent the appellant from satisfying any ground of appeal on that basis pursuant to s 327(3)(b).
Further, the respondent submits that the annexure B to her statement does not verify that the text message information that the appellant seeks to rely on was not available to, and could not reasonably have been obtained by, her prior to the assessment of Dr Glozier. The text messages do not verify the dates that the appellant alleges her marriage ended, nor when she allegedly discovered her husband’s affair which led to the termination of the relationship. The respondent submits that annexure B to the appellant’s statement therefore does not satisfy s 327(3)(b).
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04).
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.”
In Orr v Holmes (1948) 76 CLR, at pp 640-642 a number of different expressions were collected, which have been judicially used at various times, and were summed up as follows:
"No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable" (at p 642).
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The Appeal Panel accepted that the statement of the appellant and its annexures were not available or could not reasonably have been obtained before the Medical Assessor’s assessment as the documents and the annexures related to events that had taken place after the assessment by the Medical Assessor. However, the statement in so far as it related to criticisms of the way in which the Medical Assessor carried out the assessment, has little probative value and falls within the prohibition in Petrovic. The other part of the statement ([17]-[24]) set out details of the breakdown of her marriage and separation from her husband, which the Appeal Panel accepted occurred after the examination by the Medical Assessor on 13 July 2022. The Appeal Panel did not accept that [17] to [24], were evidence of a deterioration (s 327(3(a)) or additional relevant evidence (s 327(3)(b)). There was no medical evidence in support of any deterioration in her condition which resulted in a higher level of permanent impairment. The appellant in submissions referred to her marriage being severely strained as evidenced by the recent separation, but the statement was equivocal as to the state of the relationship. It established a separation, but the co-relationship between the events of August 2022 and the plaintiff’s workplace injury were unclear.
The Appeal Panel considered that the statement of the appellant dated 12 August 2022 and attachments had low probative value. The Appeal Panel could not conclude that this fresh evidence had probative value such that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) statement of the appellant dated 12 August 2022 and annexures.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) The Medical Assessor erred with regard to:
(i)his assessment of social and recreational activities as class 2, and
(ii)his assessment of concentration, persistence and pace as class 2.
(b) By reason of a change in her personal circumstances, namely her marriage break down and separation from her husband, that she should be assessed as class 3 for Social Functioning.
(c) Ground 1 – error with respect to rating the appellant as Class 2 for Social and Recreational Activities, the assessment was an incorrect application of criteria. On page 9 of the MAC, the Medical Assessor stated: “Today she reported that she continues to have regular, although reduced frequency, social interactions with her close circle of friends, going for coffees or lunches and going down to their holiday home”. In her statement dated 12 August 2022, the appellant stated that the Medical Assessor erred or confused the history taken with respect to social interactions.
(d) The Medical Assessor’s statement that she went out for coffees and lunches was at odds with other evidence in the Application to Resolve a Dispute (ARD) and Reply, including the appellant’s statement dated 13 April 2022, the report of Dr Allison dated 26 October 2021, the report of Dr Chow dated 4 March 2021, and the report of Dr Allan dated 14 December 2022.
(e) The Medical Assessor failed to take into account the balance of the evidence available to him and made errors in respect of the history. The evidence suggested a greater impairment of social and recreational activities and a moderate impairment (class 3).
(f) Ground 2 – in respect to rating the appellant as class 2 for concentration persistence and pace, the assessment was an incorrect application of criteria. The appellant told the Medical Assessor that she “had less focus on reading” but no history appeared to be taken about whether she read and if so for how long. The statement in the MAC provided no insight into whether the appellant was capable on focusing on an intellectually demanding task.
(g) The appellant attempted to complete a course of study and told the Medical Assessor that she was unable to complete it despite being provided extra time. There was no evidence that she could undertake a basic training course at a lower pace.
(h) The Medical Assessor stated that the appellant managed the household finances however she told him that the finances were automated by way of direct debits and this therefore was not a complex intellectually challenging task.
(i) There was no evidence that the appellant engaged in intellectually challenging activities or was capable of completing a course of study that would justify a class 2 rating and it was not open to the Medical Assessor on the medical evidence to make this finding. The evidence was that the appellant was unable to engage in intellectually challenging activities and was not capable of completing a course of study. The Medical Assessor failed to take into account the balance of the evidence available to him and the evidence suggested a greater impairment of concentration, persistence and pace that indicated by the Medical Assessor. The evidence indicated a moderate impairment (class 3) for concentration, persistence and pace.
(j) Ground 3 – availability of additional relevant material and deterioration in the appellant’s condition bought about by her marriage separation. The statement by the appellant dated 12 August 2022 contained new and important evidence about the appellant’s personal circumstances relevant to social functioning.
(k) Based on the fresh evidence in the appellant’s statement dated 12 August 2022 a class 3 assessment for social functioning was more appropriate to her circumstances than class 2 as her marriage had been severely strained as evidenced by the separation from her husband and her son being cared for by family.
The respondent ‘s submissions include the following:
(a) Deterioration of the worker’s condition that results in an increase in the degree of permanent impairment in accordance with s 327(3)(a) – the appellant alleged a deterioration in her condition that may result in an increase in the degree of permanent impairment in accordance with s 327(3)(a). This required the appellant to demonstrate, based on the evidence, that there had been a deterioration in her psychological condition since the assessment the subject of the appeal, and that the deterioration has resulted in an increase in the degree of permanent impairment (Merhebi v Asahi Beverages Australia (Formerly known as P&N Beverages Australia Pty Ltd and prior to that known as Bev Pak Aust Pty Ltd) [2022] NSWPICMP 323 at [40]).
(b) In the decision of Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission [2007] NSWCA 149, Handley AJA stated that:
“…the relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
The appellant is therefore compelled to provide evidence of deterioration for the ground of appeal to be successful, and in the absence of such evidence any appeal on the basis of s 327(3)(a) ought to be rejected.
(c) The appellant provided a total of three short paragraphs in her statement which addressed her alleged deterioration [22] to [24]. The evidence that the appellant has provided in these paragraphs appeared contradictory; in [22] she alleges that she was “not eating” however later in [24] stated that she had gotten out of bed to have a meal. Whilst the appellant noted that she had seen a new psychologist prior to the date of her statement, no evidence was provided by the appellant from this psychologist to verify her alleged deterioration in symptoms. Evidence from the psychologist would be imperative to confirm any deterioration in symptoms. The scant statement evidence that the appellant has provided, and the lack of medical evidence to support her alleged deterioration, do not satisfy the requirements in accordance with s 327(3)(a).
(d) Incorrect criteria – the appellant alleged that the Medical Assessor made his assessment on the basis of incorrect criteria as he applied a class 2 impairment rather than a class 3 impairment with respect to social and recreational activities and a class 2 impairment rather than a class 3 impairment for concentration, persistence and pace. As noted in the decision of Vegan above, the Medical Assessor applied Part 11 of the Guidelines and he used the PIRS to provide his assessment, which was the criteria and method of assessment that assessors were required to use in providing an assessment of WPI for psychiatric injuries. The appellant acknowledged that the Medical Assessor carried out his assessment utilising the PIRS, which complied with his requirements under the Guidelines. An assessment based on incorrect criteria cannot be found on possible inaccuracies within an assessment that complied with the Guidelines, but rather required an application of an incorrect method of assessment to warrant a ground of appeal in accordance with s 327(3)(c). The appellant failed to establish a ground of appeal pursuant to s 327(3)(c) of the 1998 Act.
(e) Demonstrable error – the MAC contains a demonstrable error in accordance with s 327(3)(d). A demonstrable error is an error which was readily apparent from an examination of a MAC and the document referring the matter to the assessor.
(f) The appellant alleged that the Medical Assessor applied a class 2 assessment for social and recreational activities on the basis that he “confused his history taking with respect to her social interactions”. The appellant also submitted that the Medical Assessor failed to have regard for the evidence attached to the ARD and was his assessment was “at odds with the other evidence”.
(g) The Medical Assessor gave a detailed description of the appellant’s reported functioning, which included confirmation of her usual daily routine. The Medical Assessor did not, contrary to the appellant’s submissions, state in the MAC that the appellant reported that she will “regularly go for lunch and coffee with friends”, but reported that in the context of her usual daily routine, the appellant may spend time with close friends, with the inference that this did not occur as frequently as prior to the subject injury.
(h) The appellant alleged that the Medical Assessor “significantly understated what I said to him about the situation of my marriage at the time. I said to Professor Glozier that I am on the verge of a complete marriage breakdown because of my moods and behaviour it has changed me…”. She further alleged that the Medical Assessor did not ask her many questions with respect to her relationships. However, contrary to the appellant’s reporting, the Medical Assessor noted:
“She has a close relationship with both her family and with Steve, although reported that there is ongoing tension and anxiety in the relationship and he says that she is ‘a changed person’ which makes her worried for the security of their relationship. She describes no difficulties in the interaction with her children and being supported by some old close friends”.
Contrary to the appellant’s allegation that the medical assessor failed to ask her many questions with respect to her relationships and social functioning, it was clear from the MAC that he did enquire as to these issues.
(i) The appellant alleged that the Medical Assessor did not “ask me much about my concentration or allow me to expand on the questions he asked. He asked me about what TV shows I liked to watch. He asked very few questions about my ability to concentrate”. However, the Medical Assessor noted:
“…she watches various shows on the television, currently The Big Fat Gypsy Wedding which she enjoys because of its cultural references, can watch a whole series but does not binge-watch episodes. She says she has less focus on reading but also little time in which to do so now. Although she attempted an online course in event management, she noted that she was unable to complete this even though they offered for her to take it for another year. Her GP notes that she actually did well in the first assignment and the course was going well in Spring 2020, although she says this changed and she was unable to complete it”.
The notes from the Medical Assessor in this regard suggested that the appellant was provided the opportunity to elaborate on her reported functioning with respect to concentration. In addition to this, it was apparent that Dr Glozier had drawn on the contents of the clinical notes provide a rounded report of her functioning.
(j) The appellant also alleges that the Medical Assessor failed to clarify information with her with respect to her ability to manage the household finances. She alleges in her statement “Prof Glozier asked me who looked after the finances and I said I did. He did not ask me much else about it. I arranged direct debits for all our bills years ago therefore there is not much I need to do, it is all automated”. However, contrary to this statement, the respondent notes that the Medical Assessor stated “She uses her phone for internet banking, phone banking, Facebook, emails and is responsible for the family budget although much of this is automated with direct debits now”. The respondent submits that the appellant’s allegation that the Medical Assessor did not clarify this aspect of her functioning, which was evident from the MAC.
(k) The decision of State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 affirmed the decision made in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, with Campbell J stating:
“…essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, the function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55] that: ‘the statement of reasons… explained the actual path of reasoning in sufficient detail to enable the court to see whether the opinion does or does not involve any error of law.’”
In Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 Malpass AJ commented that “a demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.” Further, the Supreme Court noted in Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140 that in Ferguson v State of New South Wales [2017] NSWSC 887 at [23] (Ferguson), Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (Wark), where it is stated at [33]:
“…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. …”
(l) The appellant’s submissions essentially urge for a reversal of Dr Glozier’s assessment, contrary to the decision in Wark and Ferguson the primacy that ought to be given to the clinical assessment of the appellant on the day of the assessment by the assessor over the historical clinical material also available to the Medical Assessor which will also inform their assessment. The appellant erroneously alleged that the Medical Assessor failed to take an accurate history from her on the day of assessment, but that the Medical Assessor ought to have deferred to the applicant’s reported functioning noted in the clinical evidence and the previous examinations of both Dr Chow and Dr Allan, over that of the findings of his own examination.
(m) The Appeal Panel ought to determine that the appellant has failed to demonstrate that there had been any deterioration pursuant to s 327(3)(a), that the additional information was not relevant to the assessment in accordance with s 327(3)(b), that assessment of the Medical Assessor was not made on the basis of incorrect criteria in accordance with s 327(3)(c) nor contained a demonstrable error in accordance with s 327(3)(d) of the 1998 Act.
(n) The appellant’s appeal against the MAC should be dismissed and the MAC confirmed.
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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
PIRS categories
The appellant alleged error in respect of the assessment of the PIRS categories of Social and recreational activities, Concentration, persistence and pace. The appellant alleged that there was additional relevant information and a deterioration in her condition relevant to Social functioning.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [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.”
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J was Campbell J in Ferguson v State of New South Wales [2017] NSWSC 857, where his Honour in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the AMS unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“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…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Social and recreational activities
The appellant submitted that the Medical Assessor failed to take into account evidence available to him and made errors in respect of the history. The appellant submitted that the evidence suggested a greater impairment of social and recreational activities and a moderate impairment.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines 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.”
Clause 11.11 of the Guidelines classified social and recreational activities as an activity of daily living.
The Medical Assessor assessed the appellant as class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 2
Today she reported that she continues to have regular, although reduced frequency, social interactions with her close circle of friends, going for coffees or lunches and going down to their holiday home.”
Under “Present symptoms” the Medical Assessor wrote:
“She describes avoidance of areas where she might run into people at work, e.g. downtown Wollongong during the week and the local supermarket, having recently bumped into Cindy at the deli. These can trigger panics and she described a full range of panic symptoms where she has to leave and recover in the car. She has numerous negative cognitions about how she sees as herself, how this has been caused by the workplace, people’s treatment of her, and that this has been perpetuated by other parts of the system including the health system. She feels her identity has been taken away from her as she was heavily invested in her work role, not just in doing her job, but being part of a social committee and organising a range of activities around the workplace which also provided her with significant social input. She described seeing a recent P&C meeting as representing a workplace scenario which led to an increase in her anxiety, again increasing her entrenched avoidant behaviour of such workplace-style demands.
Under “Social activities/ADL” the Medical Assessor noted:
“She sees her mum two-three times a week and will also see some of her closest circle of old friends although with a reduced frequency. Some days she will go out for lunch or coffee with them. Sometimes they will go down to the holiday home, the last being a couple of months ago during the school holidays. This summer they spent the time at their holiday home at Lake Tabourie with her husband and friends. She helps take the kids to their activities including Hendrix’ gym and Gabby’s cheerleading, both during the week and at the weekends. She said she went to a recent P&C meeting to try and get involved but found that she was unable to contemplate the demands of the volunteer tasks which made her very anxious and she wanted to leave as it upset her.”
The appellant relied in her statement dated 13 April 2022 wrote:
“7. I don't participate in social activities like I use to. I have reduced the amount of social activities I attend so that I don't really go out with friends and only try to attend special occasions. I limit my social interactions to only include people and places I am comfortable with.
8. Although I have a gym membership I have only been able to attend the gym once or twice. I find it difficult to attend as I do not know whether it will be busy. If the gym is busy I cannot attend as I become anxious when I am around a group of people I do not know.
…
10. If I do go out to a social event I am much more comfortable if I am accompanied by friends as opposed to going alone. I recently went out with two friends to a social outing and I found this much better”.
Dr Chris Walls in a report dated 9 April 2020 wrote: “She is socially avoidant, she avoids going to the grocery shop (out of work hours) in case she meets fellow workers and this reminds her of the work situation)”.
Dr Gregory Cameron, in a report dated 13 May 2021, noted:
“She mostly prefers to stay at home. Some days she is too tired to drive and she only goes to places where she has control.
She went to a park a few months ago but then had an encounter with an ex-colleague who started talking about work. She did not go back to the same park again. She has only gone to birthday dinners twice in the last 12 months”.
Dr Allison, in a report dated 26 October 2021, noted that the appellant said she had developed an avoidance of leaving her house.
Dr Allan in a report dated 14 December 2022 assessed the appellant as class 3and provided the following reasons:
“Ms Luck will go swimming twice a week at a friend's home. She does not swim in public spots otherwise. She will go out to walk with her son being on his bike but otherwise, does no exercise. She may see friends in 'controlled environments' such as her home or their home but otherwise does not socialise in other public areas. She scores 3”.
In a report dated 4 March 2021, Dr Chow noted that mostly preferred to stay at home and only went to places “where she has control.” Dr Chow wrote:
“She went to a park a few months ago but then had an encounter with an ex-colleague who started talking about work. She did not go back to the same park again. She has only gone to birthday dinners twice in the last 12 months.
She can go to shops by herself a few times a week but only during business hours on weekdays because there are less people. She is able to drive to the shops by herself a few times a week. She mostly stays at home. She is not engaging in many hobbies and activities. She used to go swimming regularly but now she only goes a few times a week.
She sees her friends and family not as often and only at their house or her house”.
The appellant submitted that the evidence suggested a greater impairment of social and recreational activities and a moderate impairment.
The Appeal Panel did not accept that then evidence supported a greater impairment of social and recreational activities. The Medical Assessor accepted that there was a reduced frequency in the appellant’s social activities. In her statement dated 13 April 2022 she said that if she did go out to a social event she was much more comfortable if she was accompanied by friends as opposed to going alone. It was clear that the appellant did go out without a support person even though she preferred to be accompanied by a friend. The Appeal Panel does not accept that there was no evidence to suggest that the appellant could engage in activities independently.
The appellant submitted that a class 3 score would be more appropriate in the category of social and recreational activities. However, one of the descriptors for a class 3 rating is that the worker will not go out without a support person.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for social and recreational activities considering the evidence available and the history taken during the assessment by the Medical Assessor.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social and recreational activities and the assessment in this class was not made on the basis of correct criteria. The categorisation of class 2 for social and recreational activities was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Concentration, persistence and pace
The appellant submitted that there was no evidence that the appellant engaged in intellectually challenging activities or was capable of completing a course of study that would justify a class 2 rating and it was not open to the Medical Assessor on the evidence to make this finding.
The examples under Table 11.5 for “Concentration, persistence and pace” in the Guidelines are:
“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.”
The Medical Assessor assessed class 2 in relation to Concentration, persistence and pace noting:
"Although she stated that she is hasn’t (sic) read books despite having bought some recently) and doesn’t watch more than one episode of a television programme at a time she suggested this was in part due to time constraints, she does the family finances and demonstrated no cognitive difficulties within a stressful assessment or problems with following its pace.”
Under “Social Activities/ADL” the Medical Assessor noted:
“She watches various shows on the television, currently The Big Fat Gypsy Wedding which she enjoys because of its cultural references, can watch a whole series but does not binge-watch episodes. She says she has less focus on reading but also little time in which to do so now. Although she attempted an online course in event management, she noted that she was unable to complete this even though they offered for her to take it for another year. Her GP notes that she actually did well in the first assignment and the course was going well in Spring 2020, although she says this changed and she was unable to complete it….
She uses her phone for internet banking, phone banking, Facebook, emails and is responsible for the family budget although much of this is automated with direct debits now”.
On mental health examination, the Medical Assessor noted:
“Ms Luck was clean, well-kempt and showed no problems with her self-care. She was a focused and clear historian, showing no concentration difficulties or problems with the pace of the assessment for well over an hour. Her affect was reactive although somewhat restricted for much of the assessment and she became tearful on relating the incident at the recent P&C meeting. She describes a flat mood, reduced enjoyment & motivation, negative and resentful cognitions, ruminations, poor sleep efficiency with entrenched avoidant behaviours and, as noted by others, some quite rigid and fixed beliefs about work and its impact on her. There were no psychotic phenomena”.
In her statement dated 13 April 2022 the appellant wrote:
“14. I have difficulty sleeping new and as a result I can get very tired during the day. When I am tired like this I have no energy or motivation to drive my children when they have places to be or motivation to de things with them
15. I attempted to undertake an Event Management course as part of my rehabilitation. However, I found it difficult to complete assessments and to stay organised. I was unable to maintain focus for periods longer than 30 minutes. As a result I was not able to complete the course.
16. My ability to concentrate has continued to decline. I have difficulty concentrating for periods longer than 10-15 minutes. I am not able to read books or magazines which is something I used to enjoy doing.
17. My son has recently started school. I attended a P&C meeting arranged by the school. This meeting was very anxiety provoking and brought up memories and emotions associated with meetings at my former employment.
18. I am very angry and disappointed that I cannot volunteer to be involved in the P&C as I would very much like to be a part of my son's school community. Prior to my psychological injury I enjoyed fundraising and volunteering. Unfortunately, my psychological condition prevents me from becoming involved in any volunteer work.
Dr Allan in his report dated 14 December 2020 noted:
“She has, however, tried to commence some online studies. She reports that she has quickly fallen behind in her studies, is struggling to keep up with the coursework and does not anticipate that she will be able to finish the course within the prescribed period. Ms Luck reports that she should be doing up to eight hours per week but is struggling to do one hour per week in her studies currently”.
Dr Allan assessed the appellant as class 3 for concentration, persistence and pace noting:
“Her concentration is poor. She cannot focus on tasks for any length of time. She does not indicate being able to read to any extent.
D Chow, in a report dated 4 March 2021 noted:
“She has been studying an online course in Event Management, eight hours a week. This is a 12-month course which has started in June 2020 and is due to finish in June 2021. She did not want feedback from her teacher, but she has been told her assessment has been great and she has been encouraged to keep going.
She has ongoing poor concentration. She gets distracted easily. She has ongoing fluctuating depressed mood and anxiety. She always needs to be in control of her situation”.
Dr Gregory Cameron in his report dated 13 May 2021 noted that the appellant was doing a course but was "not very good" and had poor concentration and "can't get her head around it". He wrote:
“…Ms Luck has only completed 1 module out of 9 in the events management course, which was funded by the insurer. It seems unlikely that she will complete this course. She also said she "doesn't like meeting new people", which seems inconsistent with a career in events management.”
The appellant submitted that the evidence was that she was unable to engage in intellectually challenging activities and was not capable of completing a course of study. The appellant submitted that the Medical Assessor failed to take into account the balance of the evidence available to him and the evidence suggested a greater impairment of concentration, persistence and pace that indicated by the Medical Assessor.
Dr Allan assessed the appellant as class 3 in this category. Dr Chow made no assessment as he did not consider that the appellant was at maximum medical improvement. Dr Cameron noted that the appellant had only completed one module out of nine in the events management course and considered it unlikely that she would complete this course. The appellant in her statement said in relation to the course that she found it difficult to complete assessments and to stay organised. She stated that she was unable to maintain focus for periods longer than 30 minutes and as a result was not able to complete the course.
The ability to undertake a basic retraining course, or a standard course at a slower pace was one of the examples provided in the Guidelines for a class 2 assessment in the category of concentration, persistence and pace.
The Medical Assessor noted that the appellant had attempted an online course in event management and she said that she was unable to complete this even though they offered for her to take it for another year. The Medical Assessor referred to her general practitioner (GP) notes which reported that she actually did well in the first assignment and the course was going well in Spring 2020. He noted that the appellant said that this changed and she was unable to complete the course. Dr Chow noted that the course was online for eight hours a week.
The Appeal Panel noted that the entry in the GP notes was dated 14 September 2020 and there was only one further entry dated 16 October 2020 in the notes filed with the ARD. The Medical Assessor did not refer to the report of Dr Cameron except to note that it was an injury management report by Dr Cameron, consultant occupational physician, which identified the medical condition of her son via a discussion with Dr Pham and problems with the vocational process. There was no reference to part of Dr Cameron’s report that described the appellant’s problems with completing the events management course.
The Appeal Panel considered that the Medical Assessor fell into error when assessing
the appellant as class 2 in the category of concentration, persistence and pace in circumstances where she had been unable to complete more than one module out of nine modules in an events management course. The Appeal Panel considered that the Medical Assessor had not provided adequate reasons for assessing the appellant as class 2 when she was clearly unable to complete a basic retraining course. The failure to provide adequate reasons for his conclusion that she was a class 2 when she was unable to complete a basic training course was a demonstrable error.A consideration of the evidence available resulted in the Appeal Panel concluding that the appropriate class for concentration, persistence and pace was class 3.
Deterioration
The appellant submitted that there had been a deterioration in her condition that may result in an increase in the degree of permanent impairment in accordance with s 327(3)(a). The Appeal Panel considered that this required the appellant to demonstrate, based on the evidence, that there had been a deterioration in her psychological condition since the assessment on13 July 2022, and that the deterioration has resulted in an increase in the degree of permanent impairment.
The respondent referred to the decision of Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission [2007] NSWCA 149, in which Handley AJA stated that “the relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.” The Appeal Panel considered that the appellant was therefore compelled to provide evidence of deterioration for the ground of appeal to be successful.
The statement of the appellant dated 12 August 2022 has not been admitted. No fresh evidence such a report from a medical practitioner of psychologist was filed by the appellant to confirm any deterioration in symptoms and an increase in the level of permanent impairment. The lack of medical evidence to support the alleged deterioration, did not satisfy the requirements in accordance with s 327(3)(a).
Summary
The Appeal Panel concluded that the appellant’s impairment in the PIRS category of social and recreational activities was the same as assessed by the Medical Assessor. In terms of concentration, persistence and pace, the Appeal Panel concluded that the impairment attributable to her psychiatric injury was a class 3 – moderate impairment.
The Medical Assessor made an assessment of 8% WPI, deducted one tenth in respect of a pre-existing condition pursuant to s 323 of the 1998 Act, which resulted in 7% WPI as a result of the injury deemed to have occurred on 5 March 2019.
The Appeal Panel has now made a rating of class 3 in the scale of concentration, persistence and pace. The Median Class was 2 and the total Aggregate Score Impairment was 16. Therefore, using Table 11.7 of the Guidelines, the assessment of WPI by the Appeal Panel is 9%. The Appeal Panel then deducted one tenth pursuant to s 323 of the 1998 Act which resulted in an assessment of total WPI of 8% in respect of the injury deemed to have occurred on 5 March 2019.
For these reasons, the Appeal Panel has determined that the MAC issued on
19 July 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2505/22 |
Applicant: | Melanie Luck |
Respondent: | Workers Compensation Nominal Insurer |
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 Glozier and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) | |
| 5 March 2019 | Chapter 11 Page 54-60 | 9 | 1/10 | 8 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 8 | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for Injuries received after 1 January 2002.
0
17
0