Mitchell v IOOF Service Co Pty Ltd
[2023] NSWPICMP 88
•13 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mitchell v IOOF Service Co Pty Ltd [2023] NSWPICMP 88 |
| APPELLANT: | Gary Stephensen Mitchell |
| RESPONDENT: | IOOF Service Co Pty Ltd |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 13 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; assessment under Psychiatric Injury Rating Scale (PIRS); worker alleged that the Medical Assessor made incorrect assessments of social and recreational activities and social functioning, relying on the same examples under both tables and aspect of self-care and personal hygiene; Ballas v Department of Education, Jenkins v Ambulance Service of NSW and Ferguson v State of New South Wales discussed; assessment of concentration, persistence and pace based on observations during examination and history provided; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 January 2023 Gary Mitchell lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 December 2022.
Mr Mitchell relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment, limited to the grounds 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
Mr Mitchell was employed by IOOF Service Co Pty Ltd (IOOF) as a financial advisor. In 2019 he was asked to look after a number of clients who had previously been represented by the company’s Canberra office. He was required to travel to visit those clients, making long road trips with poor internet connectivity, and to undertake work in the office between those trips to complete compliant reviews. He felt overwhelmed by what was required of him and unsupported as his work fell further behind. Mr Mitchell suffered a psychological injury which is deemed to have occurred on 1 March 2021, when he ceased work.
The Medical Assessor assessed 7% whole person impairment (WPI), assessing Mr Mitchell under the Psychiatric Impairment Rating Scale (PIRS) in class 3 for self-care and personal hygiene, class 2 for social and recreational activities, travel, social functioning and concentration, persistence and pace and class 3 for employability.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because the assessment was open to the Medical Assessor and the MAC does not disclose an error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
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 we have considered them.
In summary and in submissions prepared by his solicitor, Ms Sutton, Mr Mitchell submitted that the Medical Assessor made demonstrable errors or applied incorrect criteria in his assessment of social and recreational activities, social functioning and concentration, persistence and pace. In respect of each of those tables it was said that the Guidelines “stipulate” activities for each of the classes. The submissions refer to paragraphs of Mr Mitchell’s statement and the reports of Dr Chow dated 12 November 2021 and Dr Khan dated 16 March 2022.
In respect of social and recreational activities, Mr Mitchell said that relevant factors were a strained relationship with his wife, his wife admonishing him and prompting him to shower, change and look after himself, his rare attendance at social events with his family except with his wife and that she often goes alone, that he no longer sees his friends or socialises with them and that he no longer engages in mentoring of women activities. The same factors were relied on in respect of social functioning. Mr Mitchell submitted that the assessments should have been higher or that the Medical Assessor provided insufficient reasons and did not take a “whole of evidence approach”.
With respect to concentration, persistence and pace, Mr Mitchell said that the Medical Assessor was incorrect to say that he worked up to 20 hours per week with Charles Sturt University and that he worked an average of 10 hours when employed. He said that his inability to work as a professional wealth adviser should have been taken into account in the Medical Assessor’s assessment under this table. He said that the Medical Assessor has not taken account of his “occasionally discursive” history.
In reply, IOOF submitted, in essence, that the assessment by the Medical Assessor was appropriate, noting that a difference of opinion was not a ground of appeal.
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[1] 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.
[1] [2006] NSWCA 284.
Principles of assessment
The way in which Mr Mitchell’s submissions are framed requires us to set out the method under which workers are assessed under the Guidelines. The Guidelines provide in paragraph 1.6 that assessment of permanent impairment involves clinical assessment of a worker as he presents on the day of assessment, taking into account his relevant medical history and available relevant medical information.
The Medical Assessor was required to reach his own decision and it is not an error to disagree with other assessors. Dr Chow reported on 12 November 2021 and assessed 15% WPI. The only difference between his assessment and that of the Medical Assessor is in the assessment for social and recreational activities where the Medical Assessor assessed class 2 and Dr Chow assessed class 3.
Campbell J described the Medical Assessor’s task in State of New South Wales (NSW Department of Education) v Kaur.[2] His Honour said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their 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… explain 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’.”
[2] [2016] NSWSC 346.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“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 the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
It is not correct to say that the tables in the PIRS “stipulate” a particular assessment. The important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. What follows in each class are examples which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[3] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[3] [2015] NSWSC 633 at [65].
The assessment of the level of impairment is a matter of clinical judgement for the Medical Assessor. It is important to remember that class 1 applies where there is “no deficit, or a minor deficit attributable to the normal variation in the general population”, accepting that there is a range of behaviours which can be considered “normal”.
The Medical Assessor was not required to take a “whole of evidence approach”, as Mr Mitchell submitted. Each of the PIRS tables is assessed separately and particular conduct must be applied to the appropriate scale - Ballas v Department of Education[4] (Ballas). Bell P and Payne JA said:
“Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”[5]
[4] [2020] NSWCA 86.
[5] At [93] - [94].
Campbell J considered the categorisation of impairment under the PIRS in Ferguson v State of New South Wales. His Honour said:[6]
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
Social and recreational activities
[6] [2017] NSWSC 887 at [24] – [25].
The social and recreational activities table “looks to the injured worker’s degree of participation in such activities”. It is directed to “an assessment of the injured worker’s interaction with other people”.[7]
[7] Ballas at [100].
The Medical Assessor assessed Mr Mitchell in class 2. He said:
“He has always been family-oriented and continues to attend family gatherings but less frequently than before. He attends a woodworking club weekly, where he stays for about five hours and interacts with other participants.”
The Medical Assessor took into account the fact that Mr Mitchell’s wife sometimes goes to family gatherings on her own.
Dr Chow assessed Mr Mitchell in class 3 in November 2021. The Medical Assessor said:
“My impairment assessment accords with that of Dr Chow in all domains except social and recreational activities. In this category, Dr Chow had found a moderate impairment, whereas I thought it mild. Dr Chow noted:
Mr Mitchell is not engaging in hobbies or activities. He is not engaging in woodwork or attending the woodwork club.
It is a year since Dr Chow assessed Mr Mitchell. Mr Mitchell now says he attends woodworking once weekly, where he stays for up to 5 hours. He described projects he is working on and agreed that he interacted with other participants in an environment that he described as ‘collegiate’. He also participates in family gatherings, although to a lesser extent.”
The Medical Assessor based his assessment on his own consultation with Mr Mitchell. He explained why his assessment differed from that of Dr Chow one year earlier.
As the Court of Appeal said in Ballas, several other activities on which Mr Mitchell relied to support his argument that the Medical Assessor erred are appropriately considered under other tables of the PIRS. For instance, his sometimes strained relationship with his wife falls to be considered under social functioning and the fact that she prompts him to look after himself is relevant to self-care and personal hygiene, in respect of which no complaint is made.
Social functioning
The Medical Assessor assessed Mr Mitchell in class 2, saying:
“His relationship with his wife is strained, without violence or danger of separation. He remains close to his daughters and grandchildren. He maintains contact with his siblings and one friend. He no longer sees friends in person. He has disengaged from work-based friends and colleagues.”
When setting out the history obtained the Medical Assessor said:
“His relationship with Karen is strained but not at risk of separation. He continues a good relationship with his daughters and grandchildren. He has infrequent contact with his siblings, but they keep in touch through social media and occasional phone calls. He has disengaged from work-based friends, although they have not been very socially active outside of work before.”
The Medical Assessor made the same assessment as made by Dr Chow for essentially the same reasons.
Mr Mitchell submitted that assessment in class 3 or 4 was appropriate, although does not say what evidence supports this or how there was an error in assigning a mild impairment. A review of the examples in Table 11.4 shows that submission is untenable. Table 11.4 assesses a worker’s ability to sustain and form relationships. There is no evidence that Mr Mitchell has undergone of periods of marital separation or estrangement from his children. While he may see his family less often, Mr Mitchell is able to sustain those relationships.
Mr Mitchell relied on the fact that he is no longer mentors women in finance in respect of both social and recreational activities and social functioning. The evidence in the file about this activity is limited. Mr Mitchell said in his statement:
“I have been a mentor for women in finance for some time. I have withdrawn from that since I stopped work at Shadforth’s in 2021. This distresses me as I started mentoring women to help them find their way and succeed in their lives. In my current state I’d feel like a fraud if I continued mentoring.”
The only other reference in the file is Dr Khan’s statement in his report dated 16 March 2022 that Mr Mitchell has withdrawn from mentoring duties since 2021.
Based on those descriptions of Mr Mitchell’s mentoring activities, and the reason he gave for ceasing, they are not relevant to either social and recreational activities or social functioning. Mentoring would usually be considered as an aspect of adaptation/employability. In any event, Mr Mitchell’s withdrawal from that activity at the time he ceased work would not change the assessment under either of these tables.
Concentration, persistence and pace
The Medical Assessor assessed Mr Mitchell in class 2, saying:
“He spends much of his day on his computer reading things of interest, often relating to his university teaching. He watches up to 3 hours of television in the evening and can follow the shows' storylines or narratives. During my 75-minute interview, he gave a comprehensive and coherent history without signs of cognitive or attentional difficulties.”
The assessment was the same as that made by Dr Chow.
Mr Mitchell said that the Medical Assessor incorrectly stated the number of hours he worked each week when teaching. The Medical Assessor said;
“He continues to work at Charles Sturt University, teaching a Master's level course in contemporary ethics and behavioural finance. This work is for one semester a year, officially from July to October, but work starts before and continues after this. During the term, he works about 20 hours a week on course preparation, teaching and marking. Off-term, he also contributes to exam invigilation.”
The presumption of regularity applies to the Medical Assessor as an administrative decision maker[8] and there is no reason to doubt that he accurately recorded the history that Mr Mitchell provided about his current capacity when teaching the course. It is important to note that the Medical Assessor limits the period for which Mr Mitchell works 20 hour per week to the semester when he is teaching.
[8] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [39].
The evidence in the file on the issue is:
(a) In a certificate of capacity dated 28 June 2021 (among others) Dr Coverdale said that Mr Mitchell was fit to work in a “different work environment with the Charles Sturt Uni” and noted he was “currently employed as University subject coordinator, Charles Sturt University, for online course work and examiner”. He said that he had capacity for two hours on five days per week and “University online teaching to continue ONLY, some preparation work to continue till next semester for 2 hours/days 5 days/weeks”.
(b) Dr Coverdale provided certificates with those restrictions throughout the year, not only in the period between July and October.
(c) Dr Chow recorded that Mr Mitchell teaches one semester per year, teaching financial planning and assisting with exam work.
(d) Answering a question as to Mr Mitchell’s capacity for work generally, Dr Chow said that Mr Mitchell was able to do work as a lecturer on a part-time basis for 10 hours a week.
(e) Dr Khan recorded on 22 September 2021 that “he has continued to work up to 15 hours per week as a teacher in applied finance…”.
(f) On 16 March 2022 Dr Khan noted that Mr Mitchell was “to return to that role in Semester 2 this year”.
(g) Mr Mitchell said in his statement dated 7 July 2022:
“In addition to my role as a financial advisor I was also engaged as a subject coordinator / lecturer at Charles Sturt University (CSU) for a subject in the Masters of Applied Finance. In this role I prepare the Subject and Topic notes, write assessments, do Zoom meetings with the students, mark assessments. I continue to be employed in this role which currently requires me to perform the same tasks. I also Invigilate exams. I earn approximately $7-9000 pa from CSU.”
The submissions prepared for Mr Mitchell say that the history recorded by the Medical Assessor is wrong but there is nothing in the file to show that is so. Dr Coverdale provided an opinion as to Mr Mitchell’s capacity to work generally, not in a concentrated period.
The Medical Assessor described his mental state examination and said that Mr Mitchell:
“gave a detailed, although occasionally discursive, history without apparent cognitive or attentional difficulties.”
We do not agree with the submission made for Mr Mitchell that giving a discursive history was, of itself, indicative of a moderate impairment under Table 11.5. Many people with no impairment are discursive historians. The important aspect of the Medical Assessor’s assessment is that he did not observe cognitive or attentional difficulties.
The process of the examination allowed the Medical Assessor to make his own assessment of Mr Mitchell’s ability to concentrate over 75 minutes. That assessment is consistent with Mr Mitchell’s history about the length of time he spends on his computer, the ability to follow the plot of a movie and to read novels. It is also consistent with his ability to teach a university course at Masters level. The Medical Assessor accepted that Mr Mitchell is less efficient than before.
The examples in the PIRS for assessment in class 2 are:
“Mild impairment: can undertake a basic re-training course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods above to 30 minutes, then feels fatigued or develops headache.”
The examples for assessment in class 3 are:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions… make significant repairs to motor vehicle, type long documents, follow a pattern…”
The history the Medical Assessor obtained was consistent with assessment in class 2 for concentration, persistence and pace and was open to the Medical Assessor on the assessment he obtained.
For these reasons, we have determined that the MAC issued on 16 December 2022 should be confirmed.
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