Moore v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 610
•28 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Moore v State of New South Wales (NSW Police Force) [2024] NSWPICMP 610 |
| APPELLANT: | Nicholas Jon Moore |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 28 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against psychiatric impairment rating scale (PIRS); social functioning and social and recreational activities; whether adequate reasons provided; Wingfoot Australia Partners Pty Ltd v Kocak considered; no scope to review a recording of medical assessment which was not recorded; Held – no error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 May 2024 Mr Moore, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 April 2024.
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).
RELEVANT FACTUAL BACKGROUND
Mr Moore was employed as a police officer for approximately 15 years. He was stationed in areas around the far North Coast of NSW, and in the course of his duties was exposed to traumatic and confronting incidents. This included murders, motor vehicle accidents, and suicides. He was attacked and exposed to violence on multiple occasions.
There was no specific final straw that led Mr Moore to ceasing employment with the respondent.
He brought proceedings to the Personal Injury Commission (Commission) claiming lump sum compensation arising out of employment. He was assessed by a Medical Assessor appointed by the Commission, who provided an assessment of 11% whole person impairment based on diagnoses of post-traumatic stress disorder and alcohol use disorder. Mr Moore appealed against that assessment.
On appeal, Mr Moore challenges the Medical Assessor’s findings under two of the Psychiatric Impairment Rating Scales (PIRS), being social functioning and social and recreational activities, in each case suggesting that the assessment should be higher.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because it was not satisfied that the assessment was based on incorrect criteria or that the MAC contained a demonstrable error.
The appellant submits that it is a “proper case” for an examination by a member of the Appeal Panel, but has not explained why. Absent identification of a ground of appeal as set out in s 327(3), it is not appropriate for the Appeal Panel to conduct a re-examination of the worker: New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
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 submits, in relation to the PIRS of social and recreational activities, that the Medical Assessor should have assessed class 3 impairment. The appellant refers to the report of Dr Paisley dated 23 August 2023 and Dr Kumar dated 2 February 2024 as “points of comparison”. The appellant refers to the history recorded on page 3 of the MAC, relating to visiting friends, submitting that the Appeal Panel should review the recording of the assessment to properly dissect and analyse the answers provided, or if that is not available, that a re-examination be conducted. The appellant instructs that his children may go into the pool at the house where he is watching horse-racing, but he does not go to the pool.
The appellant also refers to the history of soccer playing recorded by the Medical Assessor. It is submitted that the reasons are cursory as to require a further examination, or alternatively, that the Medical Assessor placed undue weight on the attendance at soccer training and soccer games. On viewing the totality of the evidence, a class 3 impairment would be found. Relying solely on the participation in soccer, which only takes place in winter, is not sufficient ground to indicate that on the totality of the evidence, the appellant is class 2 impairment. The appellant submits that the Medical Assessor has not provided sufficient reasoning for his conclusion.
In relation to the PIRS of social functioning, the appellant submits that Dr Paisley is the only point of comparison for this PIRS. The appellant submits that the Medical Assessor has not provided sufficient reasoning so as to support his conclusion. It is submitted that the appellant’s strained relationship with his wife would support a class 3 impairment rating.
In response, the respondent submits that it is immaterial whether it is the appellant or his children who go into the pool. It was open to the Medical Assessor to place weight on the appellant’s engagement with soccer. The Medical Assessor need not supply detailed reasoning, as long as the reasons are sufficient to justify the assessment undertaken. In the present circumstances, the reasons provided by the Medical Assessor are sufficient and the Medical Assessor has explained his actual path of reasoning in detail, as required. The respondent refers to Ferguson v New South Wales [2017] NSWSC 887, in which it was held that error needs to be more than a difference of opinion.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
The appellant’s submissions are divided to address each of the two PIRS under appeal. The Appeal Panel will deal with the submissions as presented by the appellant.
Social and recreational activities
In this PIRS, the Medical Assessor assessed class 2 impairment. The appellant submits that the assessment should have been class 3. The Medical Assessor provides the following reasons in the PIRS table:
“He said since the subject injury, he has lost some friends and kept some friends who make an effort to keep in contact with him. He said he now sees his friends about once a month, when they will go to visit their house, and watch horse-racing or go to the pool.
He said he no longer enjoys soccer as much as before. He said he is still participating in soccer, playing one night a week, and every other week he tries to attend training.
As he still engages in regular soccer games and practice, albeit with reduced frequency, and still seeing his friends regularly, he has mild impairment.”The appellant’s submissions refer to the history recorded on page 3 of the MAC, which is in the same terms as set out above. There are a number of submissions made in support of the appellant’s ultimate contention that the Medical Assessor should have assessed class 3 in this PIRS.
The appellant refers to the reports of Dr Paisley and Dr Kumar as “points of comparison”. Whilst those reports may have provided a higher assessment of impairment, including a difference in relation to this particular PIRS, that, as the respondent submits, is really immaterial. A Medical Assessor is obliged to reach his or her own conclusion based on the examination performed. Whilst competing medical opinions should be considered, they are not binding on the Medical Assessor. The parties have referred to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Kocak). That decision concerned different legislation but a largely similar function to a first instance assessment of a Medical Assessor. At [47] of that decision, the role of competing medical opinions was discussed:
“The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied 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 a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor 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 form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
Wingfoot was considered in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, where the above paragraph was discussed. It was said:
“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.”
Based on the above, any submission that relies on “points of comparison” cannot really take the matter very far. Further, it is clear that the Medical Assessor has considered these competing opinions. He discusses them on page 6 of the MAC. He explains the difference between his assessment and the independent medical experts in the following paragraph:
“My opinion provides a substantially milder level of impairment compared to Drs Kumar and Paisley, with a key difference with respect to his social and recreational domain, and I suspect this is because he is currently training during soccer season when I have assessed him, whereas he may have been assessed outside soccer season at the other times.”
The appellant goes on to submit that the Appeal Panel should review a recording of the assessment to properly dissect the answers provided. The Appeal Panel do not accept this submission. The assessment was not recorded. It is not a procedure of the Commission to record assessments. The legislation does not require it. Even were that the case, it is the role of the Medical Assessor to consider and interpret the history given on examination. It would not be appropriate for an Appeal Panel to undermine the Medical Assessor’s record of history on appeal. In any event, particular to the submission made concerning the appellant’s conduct, the Appeal Panel accept the respondent’s submission that it is really immaterial as to whether the appellant enters the pool or his children. The relevant consideration is whether the worker attends “such events”, and the extent to which a support person is required. It is clear that the worker attends events involving social and recreational activities, engaging in watching horse-racing. It may be that whilst this is occurring, the appellant’s children attend the pool. He may not have actively engaged in an activity in the pool, but he actively engaged in other recreational activities at the event, including watching horse-racing.
The appellant also makes submissions concerning his attendance at soccer training and at games. The Appeal Panel accepts that the Medical Assessor placed some weight on this factor. As much is explained in his reasons, as set out above, where the Medical Assessor considers the other opinions provided. This submission also ignores cl 1.6 of the Guidelines, which provides that “assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information” [sic]. On the day of assessment, the worker’s attendance at soccer was a relevant factor for consideration.
Further, this is not the sole factor on which the Medical Assessor has based his conclusion. His reasons as set out in the PIRS table have been set out above. The other matter he considered relevant is seeing friends once a month watching horse racing. The Appeal Panel are satisfied that the Medical Assessor has considered the totality of the evidence. He has provided sufficient reasoning for reaching that conclusion. Accordingly, this ground of appeal is not made out. The correct assessment is class 2, as provided by the Medical Assessor.
Social functioning
The appellant submits that the Medical Assessor should have assessed the appellant in class 3 in this PIRS. Again, the appellant refers to the assessment of Dr Paisley as “the only point of comparison”.
The Medical Assessor provides the following reasons in his PIRS table:
“He said his relationship with his wife now has been strained, with her having to support him and managing household more, and they have been less intimate than before. He denied any episodes of physical violence, though he has had periods of leaving the situation for an hour or so after an argument, but they haven’t had any periods of separation.
He said he has been more short-tempered with his children, and he has been able to participate in looking after them but not as often now as before, approximately every alternate days.
Since the subject injury, he only contacts his family on special occasions, such as for his parents’ birthday, and doesn’t communicate with them as often.
He said since the subject injury, he has lost some friends and kept some friends who make an effort to keep in contact with him. He said he now sees his friends about once a month, when they will go to visit their house, and watch horse-racing or go to the pool.
As he has a strained relationship with his wife and children, without any significant periods of separation, no violence, and still assisting looking after his children, albeit with reduced frequency, and still seeing a few friends regularly, he has mild impairment.”The appellant’s initial submission that the Medical Assessor has not provided sufficient reasons is not accepted. The reasons provided above are extensive and deal with a variety of aspects of the appellant’s condition. In making the submission, the appellant decidedly under-quotes the reasoning provided by the Medical Assessor, suggesting that the Medical Assessor has simply said “…he has a strained relationship with his wife and children,…and still assisting in looking after his children, albeit with reduced frequency, and still seeing a few friends”. This greatly underappreciates the length of the Medical Assessor’s reasons and the factors he considered in reaching his conclusion.
The appellant goes on to submit that based on the history recorded of a strained relationship with the appellant’s wife and children, as well as some lost friendships and a lack of communication with his family, the Medical Assessor should have assessed class 3 impairment in this PIRS. The relevant criteria in the Guidelines for the two classes of impairment are:
“Class 2 Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”Whilst the examples of activities are examples only (cl 11.12 of the Guidelines), an assessment must still be made in accordance with the Guidelines. The difference between classes 2 and 3 is clear – class 2 refers to strained relationships, whilst class 3 refers to severely strained relationships. The examples given are periods of separation or domestic violence, and spouse, relatives or community services looking after children. There is no evidence at all recorded in the Medical Assessor’s history corresponding with the examples given in class 3. The appellant’s relationship is strained, but there has been no separation or domestic violence. Whilst the appellant is more short-tempered with his children, he is still able to look after them, although on a reduced basis. The last paragraph of the Medical Assessor’s reasons sets the above out in detail and explains why he did not find class 3 impairment as assessed by Dr Paisley. There are simply no activities that would place the appellant in that class.
The general thrust of the appellant’s submissions is cavilling with the outcome of the assessment rather than identifying appealable error.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 April 2024 should be confirmed.
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