Moody v State of New South Wales – Fire & Rescue NSW
[2024] NSWPICMP 49
•6 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Moody v State of New South Wales – Fire & Rescue NSW [2024] NSWPICMP 49 |
| APPELLANT: | Stephen Moody |
| RESPONDENT: | State of New South Wales – Fire & Rescue NSW |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 6 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the Psychiatric Impairment Rating Scale; appeal with respect to social and recreational activities; use of desktop investigation report of activities on social media; need for assessment on the day; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 November 2023 Stephen Moody lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 October 2023.
Mr Moody 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 was satisfied that, on the face of the application, at least one ground of appeal was made out – that the MAC contains a demonstrable error. 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 Moody suffered a psychological injury as a result of his work with Fire & Rescue NSW (Fire & Rescue). The Medical Assessor assessed 9% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS), assessing him in class 2 for self care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace. The Medical Assessor assessed Mr Moody in class 3 for social functioning, and class 5 for employability.
The appeal turns solely on the assessment for social and recreational activities.
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 Mr Moody to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
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 MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Moody noted that there was substantive agreement between the PIRS assessment made by Dr Barrett, qualified on his behalf, and that made initially by Dr Kumar, who saw him for Fire & Rescue. Dr Kumar amended his assessment when he reviewed a desktop investigation report. The only substantive difference between the original assessments and that made by the Medical Assessor is for social and recreational activities, where the Medical Assessor assessed Mr Moody in class 2.
Mr Moody said that there was “little evidence” to enable the Medical Assessor to “depart from the comments of Dr Barrett.” He said that the Medical Assessor placed inappropriate weight on the investigation report and that the Medical Assessor did not take a history about his online activities. Mr Moody said that the Medical Assessor took an inadequate history of the regularity of visits from his children and for the reason for visits to his mother, which were not recreational. He said that the Medical Assessor conflated statements made during the examination to reach an inaccurate assessment in class 2. Mr Moody said that the Medical Assessor applied incorrect criteria and made a demonstrable error. He requested that he be re-examined.
Fire & Rescue said that the Medical Assessor had not made a demonstrable error or applied incorrect criteria. It said that the Medical Assessor was entitled to consider all of the material in the file, including the investigation report and Dr Kumar’s second report, before making his assessment. Fire & Rescue submitted that the report was not the sole basis relied on to assess Mr Moody in class 2 for social and recreational activities. It said that the Medical Assessor justified his departure from Dr Barrett’s assessment by noting that Mr Moody’s history changed over the course of the assessment and that Dr Barrett had not seen the investigation report. Fire & Rescue noted that some of the social media posts highlighted by the Medical Assessor were made after the injury and sought to justify the Medical Assessor’s assessment on that basis – for example a post about a State of Origin match in 2022.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales,[1] Davies J considered that the form of words used in s 328(2) of the 1998 Act – ‘the grounds of appeal on which the appeal is made’ – was intended to convey that the appeal is confined to the errors identified by a party in their submissions. We have only considered those grounds specifically raised by the appeal.
[1] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor conducted an assessment by video conference. He set out the history he obtained of the onset of symptoms and Mr Moody’s treatment. The Medical Assessor set out his symptoms, including that he “reported an inability to enjoy things he would normally enjoy”. The Medical Assessor recorded that Mr Moody lives alone and has three adult children.
The matters in issue require us to set out extracts from the MAC at some length. The Medical Assessor recorded a detailed history of Mr Moody’s social activities and activities of daily living. He said:
“He said he does nothing at home, except watch TV, and cannot think of any other activities he engages in. He reported that he does not like driving and feels scared when he drives. He prefers to have somebody else on the phone for reassurance when he drives.”
He said:
“He wakes up and leaves the TV on all day, but does not always watch it. He goes to appointments and sees his psychologist. He reported that once a fortnight he will go to Sutherlands [sic] to visit his mother, which is an hour and a half drive from the Central Coast. He would stop once during the drive and usually stays for two nights with her, and he might see the doctor when he is in Sydney as well. He said that his son will drive him sometimes.
He has a son and two daughters, and he said they cook for him and they help him. I asked him how often he sees them and he said only every three months, because they are in their late 20s and busy with their lives. I discussed with him that if his son drives him, then it is likely more than once every three months and he stated that generally, one of his son comes more often than every three months, perhaps every month.
I asked about his friendships and he said he has not had contact with any friends for a couple of years now. He does not go online or use Facebook. If people message him, he does not respond.
Mr Moody goes shopping maybe once or twice a week. He said that he has a rescue dog who is 8 years old, and he has the greyhound for two years now. He said he never walks the dog now because he has a big yard and there is no need to walk the dog. …
In terms of his usual hobbies, he said that he normally like fishing, kayaking and going to the beach, but he has not done these activities for about two years now - he said he cannot be bothered. He said he normally likes to do crosswords and quizzes, but does not do this anymore either.
He reported that he was going to the gym and had a personal trainer, and had done this for about six months. About a month ago, EML stopped paying for it so he stopped.”
With respect to the investigation the Medical Assessor said:
“I discussed with Mr Moody, the report from Dr Kumar, who reviewed the Lee Kelly Investigation report, and I also noted that he had provided a statement in relation to the investigation report. As I discussed this with him, he became angry for having performed an investigation performed on him [sic]. I apologized and explained I had to discuss the report with him, and further explained that given this was one of the reasons Dr Kumar changed his assessment. In terms of being at the café with his greyhound and other people, he said that greyhounds are rare and when he was walking his dog that day, he came across two other greyhounds, which is very unusual, so he stopped to talk to them. He said he was walking his dog from the ex-wife's house at the time of the photo with him, his dog and several people near a café. He said at that time he might be walking his dog twice or three times a week, only for 20 minutes. However, since then he said he has not walked his dog anymore because he cannot be bothered and also because he moved and his dog has a yard now. He said he did not plan to meet up with other dog owners.
I asked Mr Moody about the photo with three other people, and he said that the people in the photo with him were his son, and the other two were his two daughters' boyfriends. He stated he does not see his children anymore. I reminded him, that he told him earlier in the assessment, that he was seeing them every three months, or more regularly because a son would drive to Sydney at times, and he confirmed he continues to have visits with his children.
I asked Mr Moody about the messages he exchanged with people online and named a few people in the messages, and he said that these are old friends, but he does not talk to them or return their messages anymore.
In terms of the photo of a café with many motorcycles, Mr Moody said that was Pie in the Sky, a famous café where ‘all the bikies come’. I accepted this does not mean he socializes with those people, or that he is comfortable being near crowded places and people who may be bikies. I also noted, this was a stop-over on his way to Sydney and not his destination.
I also asked him about watching sports and rugby on TV. He said he has the games on but he does not really watch them and he never goes in person to watch the games.”
Setting out his findings on examination the Medical Assessor said:
“Mr Moody wore glasses, he had a shaved head and a bushy beard. He was not unkempt. There were no signs of chronic neglect. There was no psychomotor slowing or abnormal movements.
He was angry and intermittently swore and did not remain angry. He was moderately restricted in his affect range and reactivity. He spoke spontaneously.
Mr Moody gave a clear history and provided clarification. He had some difficulties with precise dates. He was consistently focused throughout the assessment. He maintained a steady pace.”
The Medical Assessor did not clearly state his diagnosis, saying that he described “the onset of depression and anxiety, re-experiencing symptoms and alcohol overuse during his career due to the traumatic incidents that he attended.” He said:
“Mr Moody presented for an assessment today and he expressed anger about the Lee Kelly investigation report. I explained to him that I had to discuss it with him, in order to form an opinion about his capacity to function. There was some difficulty obtaining a clear history at times, for example how often he has contact with his children. On the one hand, he said that he needed his children to help him with cooking, and on the other hand, he said that he only saw them every three months, and later said that a son comes more regularly and will drive him to Sydney to visit his mother, perhaps every month. We also discussed his behaviour pattern before and after the Lee Kelly investigation report. I noted that he has not suffered further psychiatric injuries and he continues to have PTSD.”
And
“Mr Moody changed his history somewhat during the assessment. I noted he ceased several activities since he read Dr Kumar’s report about the Lee Kelly investigation report.”
The Medical Assessor considered the medical reports in the file in some detail. He contrasted his assessment with that of Dr Barrett who did not see the investigation report:
“I noted Dr Melissa Barrett’s WPI assessment. The only difference with my assessment, is in social and recreational activities. She rated 3 and explained Mr Moody rarely socialises, spending most of his day drinking with the television on. He has given up all previous hobbies and no longer goes out with friends. He sees his mother in the course of travelling to see his GP and psychologist. He did attend a Christmas lunch with family but left early. I noted she did not review the Lee Kelly report. In my assessment, I had difficulties obtaining a history of his daily activities and he changed his history somewhat. I have explained this further in the PIRS.”
Providing his reasons for assessing Mr Moody in class 2 for social and recreational activities, the Medical Assessor said:
“He confirmed online activities with his friends and family. He uploaded photos to share his experience and this continued after the subject injury. After the Lee Kelly investigation report, he does not post or return messages anymore.
His children, especially a son visit, which he enjoys, and this occurs regularly. He also enjoys visiting his mother in Sydney, usually every 2 weeks, and he would go by himself or with his son.
He enjoys talking to his family and eating at home with them when in Sydney. He does not need a support person in these activities and does not need prompting, and is not quiet and withdrawn. He is actively engaged. He enjoys watching sports on TV and stated ‘TV is my life now’ but also said he leaves the TV on and does not always watch it. It is difficult to obtain a description of his other daily activities, especially his recreational activities.
He has given up on most of his former recreational activities, e.g. fishing and barbeque at his friends.”
Medical history
Mr Moody saw Dr Kenny, psychologist, in February 2019, referred by his general practitioner, Dr Doust. He ceased working for Fire & Rescue on 13 October 2020. He was certified unfit on 15 October 2020 and has not worked since. He was referred back to Dr Kenny in November 2020. She noted symptoms of post-traumatic stress disorder, major depressive disorder and alcohol use disorder. In respect of the latter, she said that he had missed two appointments in late 2020 due to alcohol consumption. Dr Kenny continues to treat Mr Moody. She prepared a very detailed report dated December 2021 in which she described that treatment and Mr Moody’s activities and progress. She noted that Mr Moody (who lives on the Central Coast) stays with his mother in the Sutherland Shire to see his treatment providers.
Mr Moody was an inpatient at St John of God Hospital for two periods of about three weeks in early 2021 and in April 2021. Dr Malik, psychiatrist, arranged the second admission when Mr Moody told him that he had stopped all medications and was consuming three to four bottles of wine a day.
Mr Anning, psychologist, prepared a report at the request of Fire & Rescue on 11 August 2021. He spoke to Dr Kenny and Dr Malik. He agreed that Mr Moody was unfit for work and that he required the treatment that Dr Kenny proposed.
Dr Barrett assessed Mr Moody at the request of his solicitors and prepared a report dated 16 June 2022 and took a detailed history of Mr Moody’s activities. She diagnosed
post- traumatic stress disorder, major depressive disorder and alcohol use disorder. She assessed 19% WPI, assessing Mr Moody in class 3 for social and recreational activities, saying:“He rarely socialises, spending most of his day drinking with the television on. He has given up all previous hobbies and no longer goes out with friends. He sees his mother in the course of travelling to see his GP and psychologist. He did attend a Christmas lunch with family but left early.”
Dr Kumar assessed Mr Moody at the request of Fire & Rescue on 11 October 2022. The report is substantially less detailed than Dr Barrett’s. Dr Kumar also assessed Mr Moody in class 3 for social and recreational activities and 19% WPI.
The investigation report is dated 10 August 2022, before Dr Kumar’s first report. Despite that, it was not provided to Dr Kumar at the time of his examination. In a supplementary report dated 16 November 2022, Dr Kumar reduced his assessment to class 1 in each of self-care and personal hygiene, social and recreational activities, travel and social functioning. He maintained the assessments of class 2 for concentration, persistence and pace (based on his own assessment) and class 3 for employability.
Dr Kumar accepted the content of the report and the conclusions drawn by its author without question or critical analysis, which raises questions about his independence and understanding of his role as an expert witness. For example, though he took a history that Mr Moody showered once in four or five days, Dr Kumar amended his assessment for self care and personal hygiene because the investigation report said:
“Data collected during our investigation generally showed the claimant to be suitably attired and presented. Data also suggested the claimant cared for animals and went grocery shopping.”
The investigation report
Because the Medical Assessor placed considerable emphasis on the investigation report, it is necessary for us to review it carefully. Our review shows that the report contains considerable conjecture and some of the content is irrelevant – for example, the social media pages of other family members. The tenor of the report is that anything Mr Moody was observed to do online must be inconsistent with a significant psychiatric impairment. The captions in the report seek to make the photographs relevant to the PIRS tables – for example, suggesting that Mr Moody caring for his dog is relevant to self are and personal hygiene.
The report included a search of Mr Moody’s name as a property owner and concluded that Mr Moody or someone with the same name owned property in central western New South Wales. Despite the report indicating that the owner of that property was unlikely to be Mr Moody because of his age at the date of purchase, Dr Kumar repeated the statement that Mr Moody may own that property without question.
Mr Moody was tagged in a photograph captioned “getting ready for the State of Origin” on 27 May 2015, well before the date of injury. It has no relevance to the claim, nor does a photograph with his former wife in 2014. He posted a photograph taken from a canoe on 9 March 2021, without any comment and he did not respond to the comments made by others on that post. The implication in the report is that it was recently taken by Mr Moody but, in the absence of further information, that conclusion is not justified. Neither can any inference be made that there was any social component to this.
Mr Moody posted a photograph on 17 November 2021. He posted a photograph of four men on 27 December 2021. He told the Medical Assessor it was himself, his son and the partners of his daughters. It is consistent with Dr Barrett’s history that he went to Christmas lunch at his daughters’ house and left early.
On 31 December 2021 Mr Moody posted a New Year message and on 10 January 2022 indicated that he went to the gym and described his shopping at Coles. He interacted with some of the comments.
Mr Moody introduced his new greyhound on 22 January 2022, collected from Wyee which explains a trip there made on the same day. The report did not draw the connection about that reason for a trip to Wyee. Mr Moody posted a photograph with his dog at a beach on 14 April 2022. A number of people commented on the post and Mr Moody replied to some of the comments. Mr Moody next posted a photograph with other greyhound owners on 7 May 2022, some weeks later, which he told the Medical Assessor was a random meeting. He posted a video of his dog on 7 June 2022.
The report also noted that Mr Moody drove to Woronora Memorial Park in February 2022. We note that this is in fact Woronora Cemetery and other material suggests it is near his mother’s house.
He posted photographs of a café in April 2022, tagging two friends. The report suggested that this showed that Mr Moody had a functional relationship with friends. The Medical Assessor accepted that this café was on Mr Moody’s way to Sydney. On 4 June 2022 Mr Moody updated his cover photo to show a memorial to emergency workers. On 9 June 2022 he noted that Queensland had won the State of Origin and interacted with two people in comments.
Mr Moody provided a statement dated 22 April 2023 attaching a letter from his solicitor explaining the interactions in the investigation report and pointing out the ways in which the report drew unjustified conclusions from the information it gleaned from social media. It is not surprising that Mr Moody would be angry about the report. His statement, together with the content of the report itself, should have alerted the Medical Assessor to read it critically.
Social and recreational activities
In Ferguson v State of New South Wales[3] Campbell J said:
“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.”
[3] [2017] NSWSC 887 at [25].
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].
In Ballas, Bell P and Payne JA said that the assessment of social and recreational activities “looks to the injured worker’s degree of participation in such activities”. We note that a solitary activity is not a social activity, though it may be a recreational activity.
The matters set out beside each class of the PIRS are examples of the kind of factors which the Medical Assessor might take into account.[6] The examples in Table 11.2 for assessment in class 2 are:
“Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favorite team).”
[6] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65].
The examples for assessment in class 3 are:
“Moderate impairment: rarely goes out to such events, and mostly when prompted my family or close friend. Will not go out without a support person. Not actively involved remains, quiet and withdrawn.”
Despite the Medical Assessor’s reliance on Mr Moody’s engagement with social media, the activity set out in the investigation report is limited to a few posts about watching football, shopping and his dog. Mr Moody said that he ceased his online activity after the report so that it was no longer so relevant to the assessment on the date of the examination.
The Medical Assessor was required to assess Mr Moody as he presented on the day of the examination.[7] By the time of the examination, the investigation report was more than a year old and most recent activity relied on had taken place some months before its preparation. Some of the Medical Assessor’s statements about his ability to obtain a clear history are contradicted because the report shows that he was able to do so and, in assessing social functioning, the Medical Assessor accepted that Mr Moody was socially avoidant and had ceased contact with his friends, not returning messages. The messages about which Mr Moody provided a history were those on social media.
[7] Guidelines paragraph 1.6.
The Medical Assessor relied on Mr Moody’s engagement with his family as social and recreational activities, including visiting his mother with his son. The evidence in the file shows that Mr Moody’s treatment providers are located near his mother’s house. It makes little sense to note that he does not need a support person when he is spending time with those likely to be support people.
While some family activities can be social, Mr Moody’s general interactions with his family should be assessed under the table for social functioning because the activities with his mother and children are generally eating at home. The Medical Assessor has done so, assessing Mr Moody in class 3 because of the breakdown of his marriage and subsequent relationship and loss of friendships, while noting that his relationship with his children and mother is good. The available evidence and the Medical Assessor’s assessment shows that his “social and recreational activities” since June 2022 appear almost totally confined to talking to and eating with his children and his mother.
The material set out in the MAC shows that Mr Moody has practically no social or recreational activities and justified assessment in class 3 for social and recreational activities and assessment in class 2 was glaringly improbable. Once the contact with family is assessed under the correct table, the Medical Assessor’s own history shows that Mr Moody is socially isolated and his recreation is limited to television. He has even stopped walking his dog since moving to a house with a big back yard.
Conclusion
When social and recreational activities are assessed in class 3, the PIRS scores are 2, 2, 2, 3, 3, 5. The median class is 2.5, rounded to 3 and the total is 17. Under Table 11.7, the WPI is 19%.
For these reasons, we have determined that the MAC issued on 9 October 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
Applicant: | Stephen Moody |
Respondent: | State of New South Wales – Fire & Rescue NSW |
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 Michael Hong 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) |
| Psychological | 14.10.20 | Chapter 11 | 19 | 0 | 19 | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
5
4