Mintjay Pty. Ltd (known as Hotel Coronation) v Berrier
[2023] NSWPICMP 529
•23 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mintjay Pty. Ltd (known as Hotel Coronation) v Berrier [2023] NSWPICMP 529 |
| APPELLANT: | Mintjay Pty Limited (known as Hotel Coronation) |
| RESPONDENT: | Rhys Peter Berrier |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 23 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Primary psychiatric injury; alleged error in assessment of the travel category of the psychiatric impairment rating scale; Panel considered that the Medical Assessor failed to provide adequate reasons for rating the worker as class 3 for travel; Appeal Panel assessed worker as class 2 for travel; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 August 2023 Mintjay Pty Limited (known as Hotel Coronation/the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 July 2023.
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):
· 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.
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 is 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 respondent, Rhys Peter Berrier (Mr Berrier), developed a primary psychological injury in the course of his employment with the appellant as a detainee services officer.
Mr Berrier commenced proceedings in the Personal Injury Commission (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 on 14 July 2020.
The Medical Assessor examined the appellant on 12 July 2023 through video link. The Medical Assessor assessed 24% WPI as a result of the injury on 14 July 2020.
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 Workers Compensation Medical Dispute Assessment Guidelines 2019.
The appellant did not request that Mr Berrier be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Berrier to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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 incorrectly applied Table 11.3 of the Psychiatric Impairment Rating Scale (PIRS) in accordance with the Guidelines in assessing the Mr Berrier’s psychological impairment in relation to the category of travel.
(b) The Medical Assessor took no history in relation to travel under ‘present symptoms’ on page 4 of the MAC, or under ‘social activities/ADL’ on page 5 of the MAC, apart from to note that the respondent worker, at one point, forgot how to drive his car.
(c) On page 10 of the MAC, the Medical Assessor proceeded to assess a Class 3 in respect of travel in accordance with Table 11.3.
(d) In accordance with Table 11.3 of the Guidelines, a Class 3 impairment requires: “Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment”.
(e) The Medical Assessor considered that Mr Berrier could not travel away from his residence without his dog as he feels safe with her. The criteria under the Guidelines require the use of a “support person” not a support “animal”.
(f) The Medical Assessor failed to note and comment on Mr Berrier’s ability to travel to the independent medical examinations in Sydney (from his residence in Ballina) on two occasions with Associate Professor Michael Robertson in March 2022 and Dr Yajuvendra Bisht in November 2022, independently without support (of his dog or another person) and to a new environment.
(g) In his report dated 7 March 2022, Associate Professor Robertson recorded that Mr Berrier was able to travel to this appointment in Sydney independently and planned to travel to the Philippines to visit his son and might remain there long term. He assessed a Class 1 impairment in respect of this category.
(h) In his report dated 3 January 2023 Dr Bisht recorded that Mr Berrier had been able to travel to familiar places on his own and to unfamiliar places, such as for the appointment (in Sydney).
(i) In undertaking his clinical examination, the Medical Assessor did not find that Mr Berrier cannot travel away from his own residence without a support person to support an assessment of Class 3 under Table 11.3 of the Guidelines. Rather, the history taken and evidence obtained supports a Class 1 assessment under the Guidelines.
(j) The Medical Assessor erred in this aspect of the assessment and that the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error in accordance with ss 327(3)(c) and (d) of the 1998 Act.
(k) Based on the Medical Assessor’s findings on examination and on the available evidence, in accordance with Table 11.3 of the Guidelines, the Medical Assessor ought to have assessed ‘no deficit’, being Class 1, for travel in accordance with the PIRS.
(l) Therefore, the Medical Assessor ought to have found a median class score of 3, aggregate score of resulting in a total of 19% WPI for the primary psychological injury, rather than 24% WPI, in accordance with Table 11.7 of the Guidelines.
(m) The Medical Assessor has applied incorrect criteria and the MAC contains a demonstrable error in respect of the assessment of the psychological injury in relation to the assessment of travel in accordance with ss 327(3)(c) and (d) of the 1998 Act.
(n) The MAC ought to be revoked and a fresh MAC issued assessing 19% WPI for Mr Berrier’s primary psychological injury on 14 July 2020.
Mr Berrier’s submissions include the following:
(a) The appellant submitted that the Medical Assessor incorrectly considered the role and support of Mr Berrier’s dog, when he is travelling away from his residence.
(b) Whilst the criteria under the PIRS does not specifically refer to a support animal, and uses the term “support person”, it is settled case law that the descriptors and examples in the PIRS are examples only, and not exhaustive (see Ferguson v State of New South Wales & Ors [2017] NSWSC 887 at [25] and Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633).
(c) The PIRS examples merely provide guidance to the Medical Assessor and are to be used as a general indicator. Therefore, it was open to the Medical Assessor, as a matter of clinical judgment, to find that Mr Berrier’s travel impairment was a Class 3, as he was unable to travel away from his residence, with a feeling of safety, unaccompanied.
(d) In relation to the failure of the Medical Assessor to consider that Mr Berrier was able to travel to two independent medical examinations on his own, this was incorrect. Mr Berrier’s mother drove him to Ballina Airport on each occasion that he was required to fly to Sydney for independent medical examinations. Upon arrival at Sydney, Mr Berrier’s ex-partner collected him from Sydney Airport, transported him to his accommodation, and as well as to the independent medical examination appointments, and back to the airport.
(e) It was open to the Medical Assessor to assess his travel impairment at Class 3 with the information available to the Medical Assessor at the time, noting that the assessment occurred via audio visual link. Mr Berrier was unable to independently travel away from his residence and required the support of his dog or another person. As such, the Medical Assessor did not err in considering the role of Mr Berrier’s dog, nor assessing his travel impairment at Class 3.
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] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘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.
Discussion
PIRS categories
The appellant alleged error in respect of the assessment of the PIRS categories of Travel.
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 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 Approved Medical Specialist (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…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
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.
Travel
The appellant submitted that the Medical Assessor incorrectly applied Table 11.3 of the PIRS in assessing Mr Berrier’s psychological impairment in relation to the category of travel.
The examples under Table 11. 3 for “travel” in the Guidelines are:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population. Can travel to new environments without supervision.
Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
Clause 11.11 of the Guidelines classifies travel as an activity of daily living.
Under “Present symptoms” the Medical Assessor noted that “at one point he told me that he forgot how to drive his car”. Under “Social activities/ADLs” the Medical Assessor noted that he took his dog for walks. The Medical Assessor made a diagnosis of post-traumatic stress disorder, Major Depressive Disorder and Alcohol Use Disorder.
In commenting on the other medical opinions, the Medical Assessor wrote:
“I don’t agree with A/P Robertson’s (07 March 2022) PIRS, in category of travel and have scored Mr Berrier in class 3 as he cannot travel away from own residence without his dog as feels safe with her and has excessive anxiety to leave home on his own.”
The Medical Assessor also commented:
“I don’t agree with Dr Bisht’s (03 January 2023) PIRS, in category of travel and have scored Mr Berrier in class 3 as he cannot travel away from own residence without his dog as feels safe with her and has excessive anxiety to leave home on his own”.
The Medical Assessor assessed the appellant as Class 3 for travel. In the PIRS Rating Form, the Medical Assessor wrote:
“Travel - Class 3
He walks his dog every day, doesn't drive and has told me that he has forgotten to drive, and hasn’t driven since then. He cannot travel away from own residence without his dog as feels safe with her and has excessive anxiety to leave home on his own.”
Mr Berrier, in his statement dated 4 April 2023, wrote:
“62. I try to leave my house from time to time. These incidents are not frequent.
63. When I leave my house, I go for a walk or, on occasion, I have gone to a bar or pub….
68. I have a friend who resides in Brunswick Heads, his name is Jesse Munday. We have been friends since I was 7 years old. Jesse has his own life, and he comes down on weekends from time to time, to make sure that I get out of the house. Without Jesse, I have no idea where I would be now…
70. I purchased my dog, Nala, because I was so lonely. I try to take Nala on walks to get her out of the house. …
114. Since the incident, I have not driven. I don’t really have anywhere to drive to, and the process of driving is really difficult for me. I recall an incident shortly after the assault, where I forgot how to drive. I do not try to drive anymore. If I go anywhere, I have someone pick me up….
115. I am aware that the insurer hired an investigator to follow me and take video footage of me at a pub on 5 June 2022.
116. On that date, it was the George Kambosos fight which was being played at the pub. Kambosos is the first Australian who fought for belts, in a very long time.
117. On this date, my friend Jesse and I, specifically chose to watch the fight at Cherry Street Club, as it is full of old bowlers and old women. These patrons are not loud or aggressive in any way.
118. On that day, Jesse picked me up, and we watched the game, having about 2 to 3 beers. Jesse then dropped me home afterwards. I recall that we were only surrounded by about 7 other patrons. I did not feel scared being in that environment, but I did feel anxious. Had I not chosen that particular pub, I would have been uncomfortable. I felt mostly safe but needed my friend to take me home afterwards. I would not have been comfortable doing anything else after the pub.
119. I am encouraged by my doctor, Dr Seifken, to get out and do things. Since the incident, I have been told by psychologists and my doctor that people with PTSD, should be reintroduced to the environment. I do try and do these sort of things by going on walks, or going to specific pubs/bars that I know won’t be too rowdy.
120. However, after I do these sort of things, I always feel extra anxious. I just like to go home afterwards. I feel safe at home”.
Associate Professor Michael Robertson, in a report dated 7 March 2022, assessed Class 1 for travel writing:
“He was able to travel to this appointment in Sydney independently. He plans to travel to the Philippines to visit his son and may remain there long term”.
In his report dated 3 January 2023, Dr Yajuvendra Bisht assessed the appellant as Class 2 for travel providing the following reasons:
“The client can travel without support person, if he is travelling to unfamiliar places, such as for his appointment today”.
Dr Bisht noted the following history:
“It takes me ages to get out of the house; like checking my wallet and my keys;
I don’t drive anymore;
I had issues with driving;
I forgot how to drive manual;
I couldn’t get the timing of the gears;
I switched to automatic;
I sold my car at the time and I bought an automatic and had 2 really close incidents
of crashing and that was my fault completely;
I was worried that I would kill someone.
…..
He has been able to travel to familiar places on his own, and to unfamiliar places, such as for his appointment today.”
The appellant submitted the Medical Assessor did not find that Mr Berrier cannot travel away from his own residence without a support person to support an assessment of Class 3 under Table 11.3 of the Guidelines. The appellant argued that the history taken and the evidence obtained supports a Class 1 assessment for travel under the Guidelines.
Both Associate Professor Robertson and Dr Bisht assessed Mr Berrier as Class 1 for travel. The Medical Assessor disagreed with those ratings noting that Mr Berrier could not travel away from own residence without his dog as he felt safe with his dog and had excessive anxiety in leaving home on his own.
The examples under Table 11. 3 for “Travel” in the Guidelines for Class 3 were: “Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.” While the Appeal Panel accepted that the descriptors in the PIRS Tables were examples only and not intended to be exclusive, there is an obvious distinction between a support person and a support animal.
The Appeal Panel accept that the PIRS examples merely provide guidance to the Medical Assessor and are to be used as a general indicator. However, the Medical Assessor did not find that Mr Berrier could not travel away from his own residence without a support person. Further, the Medical Assessor took a limited history in relation to travel and the Appeal Panel did not consider that he provided adequate reasons for rating Mr Berrier as a Class 3 for travel on the evidence available. This was a matter where both Independent Medical Examiners (IMEs) had rated Mr Berrier as Class 1 for travel. The Appeal Panel considered that the Medical Assessor’s reasoning process for rating Mr Berrier as Class 3 for travel was unable to be made out. The failure to provide adequate reasons for rating Mr Berrier as Class 3 for travel was an error.
The Appeal Panel reviewed the evidence in this matter.
The Appeal Panel noted that Mr Berrier had attended the two assessments with IMEs in Sydney alone. He flew down to Sydney unaccompanied even if he had some assistance in getting to the airport and the appointments. From the report and history taken by Dr Bisht, Mr Berrier appeared to have had issues with driving but could travel to familiar places by himself and to the examination with Dr Bisht. Although Associate Professor Robertson noted that Mr Berrier intended to travel to the Philippines to visit his son, it appears that this trip was never undertaken. The Appeal Panel noted that neither Associate Professor Robertson nor Dr Bisht referred to the need to a support dog in their reports.
Mr Berrier stated that he tried to leave his home from time to time but those incidents were not frequent. He stated that he went on walks and occasionally to a pub or bar.
The fact that Mr Berrier described symptoms of anxiety when leaving his home and required a support dog did not detract from the fact that he was capable of travelling locally by himself.
The Appeal Panel accepted that Mr Berrier needed a support dog to help him leave his home and that he was reluctant to travel outside his home because of anxiety. On balance, the Appeal Panel determined that Mr Berrier had a mild deficit in the scale for travel because he did require a support dog to facilitate leaving home. The Appeal Panel was not persuaded that Mr Berrier had no deficit or a minor deficit attributable to the normal variation in the general population in terms of the travel scale.
Therefore, the Appeal Panel assessed the median class score as 3, the aggregate score as a total of 18 which is converted to 22% WPI for the primary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 July 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2559/23 |
Applicant: | Rhys Peter Berrier |
Respondent: | Mintjay Pty Limited (known as Hotel Coronation) |
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 Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | 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) |
| 1.Psychological Injury | 14 July 2020 | 22% | 0 | 22% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
7
0