Moelker v State of New South Wales (Ambulance Service of New South Wales)
[2021] NSWPICMP 202
•22 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Moelker v State of New South Wales (Ambulance Service of New South Wales) [2021] NSWPICMP 202 |
| APPELLANT: | John Moelker |
| RESPONDENT: | State of New South Wales - Ambulance Service of NSW |
| APPEAL PANEL: | Member Richard J Perrignon Dr Julian Parmegiani Dr Michael Hong |
| DATE OF DECISION: | 22 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of whole person impairment (psychological); whether Medical Assessor (MA) erred in assessing a class 2 impairment in respect of ‘Self-care and personal hygiene’; whether MA erred in assessing a class 2 impairment in respect of Concentration, persistence and pace’; Held – Medical Assessment Certificate (MAC) revoked; new MAC issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Moelker, suffered psychological injury as a result of an accumulation of stressors in the course of his employment as an ambulance driver.
By a Medical Assessment Certificate dated 31 May 2021, Medical Assessor Dr Andrews assessed a 7% whole person impairment (psychological) as a result of injury on 17 June 2020 (deemed date). In doing so, he assessed a class 2 impairment in respect of the Psychiatric Impairment Rating Scales (PIRS) Self care and personal hygiene and Concentration, persistence and pace.
Mr Moelker appeals from the certificate, on the basis that in respect of each such scale the assessment of a class 2 impairment was in error.
PRELIMINARY REVIEW
On 26 July 2021, the delegate was satisfied that demonstrable error was capable of being made out, and referred the matter to this Appeal Panel for determination.
On 31 August 2021, the Appeal Panel conducted a preliminary review of the original medical assessments in the absence of the parties and in accordance with the Guidelines.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Appellant
In summary, the appellant worker submits as follows.
In respect of Self care and personal hygiene:
(a) the Medical Assessor took into account an irrelevant matter, namely the degree to which the appellant was able to look after his children, and
(b) failed to take into account a relevant consideration, namely his alcohol abuse.
The taking into account of the appellant’s ability to care for his children discloses both error and the application of incorrect criteria. This factor is irrelevant because it does not go to the appellant’s ability to look after himself, with which this rating scale is concerned. When this irrelevant factor is excluded, the appropriate assessment is class 3. The ability to look after his children is relevant to the scale, ‘Social functioning’, but no appeal is made from the assessment of a class 2 impairment in respect of that scale.
With respect to Concentration, persistence and pace, the Medical Assessor:
(a) took into account an irrelevant consideration, namely the appellant’s ability to teach first aid - which is relevant only to the rating scale, Employability, and was considered by the Medical Assessor in assessing that rating scale;
(b) failed to give reasons why the ability to teach first aid was relevant, and
(c) failed to take into account a relevant consideration, namely the evidence in the appellant’s statement that he is easily fatigued.
Notwithstanding the appellant’s ability to watch videos on Netflix and YouTube, a class 3 impairment is appropriate.
Respondent
In summary, the respondent employer submits as follows.
With respect to Self care and personal hygiene:
(a) the ability to care for immediate family, including preparing meals and getting children ready for school, is a relevant consideration, because it shows the extent to which the appellant is able to look after himself and live independently;
(b) it is not relevant to Social functioning, because that scale is concerned with the ability to form and maintain relationships, and
(c) he did take into account excessive drinking, because it formed part of the history he took. If he gave it little weight, he was entitled to do so.
With respect to Concentration, persistence and pace, the Medical Assessor did not err in taking into account the ability to concentrate on giving first aid training for six hours at a time. This is relevant to assessing concentration. It was not taken into account in assessing employability, which is a different behavioural capacity from concentration, persistence and pace.
In respect of both scales, the assessments were reasonably open to the assessor.
REASONING OF THE MEDICAL ASSESSOR
At [4], Dr Andrews took a history of exposure to traumata in the course of the appellant’s duties as an ambulance driver, and noted that he drinks to excess - five cans of beer per night, five night per week.
He noted that the appellant and his wife operate businesses together relating to first aid training, and that the appellant will drive to Taree in order to teach first aid. He teaches two to three days per week for sessions lasting six hours each.
He also recorded at [4]:
“He helps ready his children for school, preparing their breakfast and lunch before driving them to school.”
“He has difficulty reading with retention. He watches videos relating to his interest in fourwheel driving on YouTube. He watches serial shows on Netflix; for example, he has recently watched A Very English Scandal. Although at times he is inattentive, he follows the plot.”
Dr Andrews diagnosed at [7] Post traumatic stress disorder and Alcohol use disorder.
He gave the following reasons for assessing a class 2 impairment in respect of Self care and personal hygiene:
“Mr Moelker showers and cleans his teeth every second day, often requiring prompting from his wife. However, he prepares meals for himself and his family. He assists his children and getting ready for school. He neglects housework and his gardens. He continues to intermittently attend a gym for exercise.”
He gave the following reasons for assessing a class 2 impairment in respect of Concentration, persistence and pace:
“He finds reading challenging and has not attended any courses since leaving work. He watches serial TV shows on Netflix and videos of interest on YouTube, with generally good comprehension. He attended well over a 90-minute interview with me today. He can teach first aid for up to 6 hours at a time. Any deficit on this domain is mild.”
His reasons for assessing a class 3 impairment in respect of Employability included the following:
“He works six hours a day, up to 3 days a week, teaching first aid.”
FINDINGS AND REASONS
1. Self care and personal hygiene
In assessing impairment in respect of a particular rating scale, a Medical Assessor may only take into account matters that are relevant to assessing that scale. In Ballas v Department of Education (State of NSW) [2020] NSWCA 86, the Court of Appeal found that a Medical Assessor had arguably taken into account an irrelevant consideration when assessing Social and recreational activities, by taking into account a worker’s solitary activities at her local club, and the fact that she saw one friend regularly. Bell P and Payne JA explained at [92]-[96] - emphasis added:
“92. … the Delegate was wrong to speak in the language of “discretion”. The scales are fixed and are treated by the Guidelines as distinct from each other. The structure of the Guidelines, and the mandated use of a standardised form on which an AMS must specify the “class” he or she assigns to each “scale” and give his or her reasons for doing so, are designed to add transparency and rigour to the exercise of WPI assessment.
93. 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.
94. 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.
95. In the present case, it was plainly “arguable”, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale “social and recreational activities” when he made reference in his reasons to “[s]ees one friend regularly” (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled “Social functioning (relationships)” to which that conduct is more directly relevant.
96. Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the “Social functioning (relationships)” scale.”
Ballas is authority for the proposition, among others, that where a behaviour or capability relates more directly to one scale than to another, it may only be taken into account in assessing the former. As indicated, the appellant argues that the worker’s ability to look after his children was irrelevant because:
(a) it does not go to his ability to look after himself, and
(b) it is more directly related to the scale, Social functioning.
The respondent argues, in effect, that:
(a) the consideration was relevant because it is a fact from which an ability to care for oneself may be inferred, and
(b) it is not relevant to Social functioning, because that is concerned with the ability to form and maintain personal relationships.
In our view, the rating scale, Self care and personal hygiene, is directed to the worker’s ability to care for himself, rather than to care for others. An ability to prepare meals for children and get them ready for school does demonstrate a degree of organisation, but does not necessarily demonstrate the degree to which a person looks after himself or herself. It is, in our view, an irrelevant consideration. The fact that it was taken into account in assessing Self care and personal hygiene demonstrates error and the application of incorrect criteria, requiring the Medical Assessment Certificate to be set aside.
That is so, whether or not it is relevant, or more directly relevant, to the rating scale, Social functioning. It is unnecessary to decide that issue.
In light of our findings, it is also strictly unnecessary to decide whether the assessor failed to take into account excessive drinking, although we have taken that into account in making our own assessment (below), because in our view excessive drinking is a relevant consideration in assessing a person’s ability to look after themselves.
2. Concentration, persistence and pace
As indicated, the assessor took into account the appellant’s ability to teach first aid in assessing Concentration persistence and pace.
As Dr Andrews implied, the ability to teach in this way requires and demonstrates an ability to concentrate for long periods. However, teaching first aid in a professional capacity, as the appellant does, is more directly relevant to the rating scale, Employability, and was rightly taken into account by Dr Andrews in assessing that scale.
For those reasons, it was not available to be taken into account in assessing Concentration, persistence and pace: Ballas. Reliance on it for the purposes of assessing that scale demonstrates error and the application of incorrect criteria, requiring that the Medical Assessment Certificate be set aside.
It is unnecessary to decide whether sufficient reasons were given, or whether the assessor erred in failing to take into account the statement evidence that the applicant suffered from fatigue.
In respect of the latter, for completeness we observe that in his statement the appellant complained of fatigue due to lack of sleep. In our view, even if lack of sleep and associated fatigue is capable of impairing concentration, the mere fact that a person is fatigued by lack of sleep does not alone prove that either concentration, persistence or pace is impaired. In the circumstances of this case, we do not consider it relevant to an assessment of that rating scale.
Assessment
It is unnecessary to examine the worker, as it is possible to make an assessment based on the history taken by Dr Andrews, his findings on examination, and his diagnoses with which we agree.
In our view, taking into account the relevant factors listed by Dr Andrews in his PIRS table, but excluding the ability to prepare meals for the children and to prepare them for school, and after taking into account also the appellant’s regular drinking to excess, we assess a class 2 impairment in respect of Self care and personal hygiene. In addition to the relevant factors mentioned by Dr Andrews, Mr Moelker exercised regularly, indicating a desire to maintain a reasonable degree of fitness. He was able to purchase groceries and prepare simple meals. He travelled to Queensland with friends, demonstrating a degree of self sufficiency when away from home. As the appellant points out in his submissions at [3.9], Dr Rastogi, on whose opinion he relied, also assessed a class 2 impairment.
With respect to Concentration, persistence and pace, having no regard to the appellant’s ability to teach first aid, we consider a class 2 impairment appropriate. Dr Andrews had an opportunity to evaluate Mr Moelker’s concentration during a 90-minute interview. This included his capacity to process information, understand the assessor’s questions, formulate answers, provide a comprehensive history, and maintain focus on topics being discussed. A face to face interview of this length provides a powerful tool for assessing Concentration, persistence and pace.
Having regard also to the other relevant matters listed by Dr Andrews in his PIRS table, we are comfortably satisfied that a class 2 impairment is appropriate.
For the reasons expressed, the Medical Assessment Certificate of Dr Andrews is set aside and replaced with the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Andrews with respect to the assessment of whole person impairment and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric | 17 June 2020 (deemed) | Chap 11, p 54-60 | n/a | 7% | nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE ISSUED BY DOUGLAS ANDREWS, MEDICAL ASSESSOR, PERSONAL INJURY COMMISSION.
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | John Moelker | Claim reference number | W201/21 |
| DOB | 18 December 1970 | Age at time of injury | 49 years |
| Date of Injury | 17 June 2020 (deemed) | Occupation at time of injury | Paramedic |
| Date of Assessment | 26 May 2021 | Marital Status before injury | Married |
| Psychiatric diagnoses | PTSD | ||
| Alcohol use disorder | |||
| Psychiatric treatment | Psychotherapy | Sleep medication | |
| Is impairment permanent? | Yes | ||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-Care and personal hygiene | 2 | Mr Moelker showers and cleans his teeth every second day, often requiring prompting from his wife. However, he prepares meals for himself. He neglects housework and his gardens. He continues to intermittently attend a gym for exercise. Though he drinks to excess, Mr Moelker exercises regularly, indicating a desire to maintain a reasonable degree of fitness. He was able to purchase groceries and prepare simple meals. He travelled to Queensland with friends, demonstrating a degree of self sufficiency when away from home. | |||||||||
| Social and recreational activities | 3 | Mr Moelker avoids social outings. When he has gone with encouragement from his wife, he has found the experience distressing. For example, he went to a music concert last year but was visibly anxious throughout. He often refuses to attend family celebrations; for example, he wouldn't let his family organise a 50th birthday party for him. If he attends his children's activities, such as netball and swimming, he isolates himself from others and tries to sit alone. He no longer participates in previously enjoyed activities such as boating, four-wheel-driving and sky-diving. | |||||||||
| Travel | 2 | He mostly travels within his local area to attend medical appointments, work and shopping. He went on a family trip to the Great Ocean Road and with friends to Queensland last year. Despite this, he is anxious when driving and is overly cautious, fearing a motor vehicle accident. He refuses to fly for safety reasons. | |||||||||
| Social functioning | 2 | He has maintained good relationships with his wife and children. There has been some strain with the extended family because of his isolation from them, and he has lost friends because of his lack of social engagement. He no longer actively socialises with anyone outside of the family. | |||||||||
| Concentration, persistence and pace | 2 | He finds reading challenging and has not attended any courses since leaving work. He watches serial TV shows on Netflix and videos of interest on YouTube, with generally good comprehension. He attended well over a 90-minute interview with me today. Any deficit on this domain is mild. | |||||||||
| Employability | 3 | He works six hours a day, up to 3 days a week, teaching first aid. He finds that if he works more than three days a week, he finds it too tiring, and he copes less well. Teaching first aid is less demanding than his work as a paramedic. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 3 | = 2 | |||||
| Aggregate Score Impairment 14 | Total | 7 % | |||||||||
R J Perrignon
Member
Dr Julian Parmegiani
Medical Assessor
Dr Michael Hong
Medical Assessor
22 October 2021
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