Mouawad v State of New South Wales (NSW Police Force)
[2021] NSWPICMP 225
•1 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mouawad v State of New South Wales (NSW Police Force) [2021] NSWPICMP 225 |
| APPELLANT: | John Mouawad |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL: | Member Marshal Douglas Professor Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 1 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant suffered psychiatric injury due to his exposure to numerous distressing and traumatic events in the course of his employment; appellant’s mother had recently died as a result of a homicide for which the appellant’s brother was convicted for manslaughter; Medical Assessor (MA) assessed appellant’s impairment was 9% whole person impairment (WPI); MA considered at last 1/10th of that was to be attributed to the death of appellant’s mother and MA certified appellant’s permanent impairment resulting from injury was 8% WPI; appellant contended MA erred with respect to his assessment of his impairment in self-care and personal hygiene and also erred by reducing assessment due to the effect of the circumstances relating to the death of his mother; Held - Appeal Panel found no error with respect to MA’s assessment of appellant’s impairment in self-care and personal hygiene but did make an error by reducing assessment on account of the effect of the circumstances relating to the death of the appellant’s mother; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 October 2021 John Mouaward (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 13 September 2021.
The appellant 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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a police officer in October 1998 with the New South Wales Government (the respondent). He worked his last shift on 10 April 2020. In between, he was exposed on numerous occasions to very distressing and traumatic incidents. As a result of his exposure to those incidents he suffered an injury in the form of Post-Traumatic Stress Syndrome (PTSD). It is also uncontroversial that his employment with the respondent was a substantial contributing factor to his developing that illness.
Relevant to the appeal the appellant’s appeal against the MAC is that on 18 February 2019 his mother died as a result of a homicide, in regards to which his brother was convicted for manslaughter.
The appellant has been treated for his PTSD by Psychiatrist Dr Selwyn Smith. Dr Smith was asked by the appellant’s solicitors to assess the appellant’s permanent impairment resulting from the injury he suffered in his employment with the respondent in the form of PTSD. On 11 January 2021, Dr Smith wrote to the appellant’s solicitors advising he assessed the appellant had a permanent impairment of the order of 19% whole person impairment (WPI) from his injury.
Following their receipt of that advice from Dr Smith, the appellant’s solicitors wrote to the respondent’s insurer notifying it that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act1987 (the 1987 Act) for 19% WPI and was also claiming compensation under s 67, as saved, for pain and suffering.
The respondent’s solicitors then organised for the appellant to be examined by consultant psychiatrist Dr Alice Neill so as to assess the degree of the appellant’s permanent impairment from his injury. Dr Neill examined the appellant on 20 April 2021 and on 21 April 2021 wrote to the respondent’s solicitors advising that she had assessed the appellant had 11% WPI from his injury.
On 28 May 2021 the respondent’s insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it denied liability to pay him the compensation he had claimed. It notified him that it did not agree that the degree of his permanent impairment from his injury was in excess of 15% WPI, and that his permanent impairment from his injury was therefore less than the threshold of 15% WPI imposed by s 65A(3) of the Act for him to be entitled to compensation. It attached a copy of Dr Neill’s report of 21 April 2021, upon which it relied to deny his claim against it for compensation.
The appellant thereupon lodged with the Commission an Application to Resolve a Dispute seeking determination of his claim for compensation from the respondent under s 66 and
s 67. That matter was referred to the MA on 4 August 2021 so as to assess the degree of the appellant’s permanent impairment as a result of his injury.The MA conducted an examination of the appellant on 10 September 2021. As mentioned above he issued the MAC on 13 September 2021. In that he certified he had assessed the appellant’s total WPI was 9%. He further certified that in his clinical judgment at last 1/10th of that was to be attributed to the death of his mother. He certified that the appellant had 8% WPI resulting from the appellant’s work injury.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to determine the appeal.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal against the MAC relates to two matters, firstly, the MA’s assessment of his impairment in the Psychiatric Impairment Rating Scale (PIRS) category of self-care and personal hygiene and, secondly, the apportionment the MA made of his impairment from PTSD between his work injury and the incident involving the manslaughter of his mother.
The history the MA obtained relevant to the appellant’s self-care and personal hygiene included the following:
(a) the appellant exercises regularly, including walking and jogging. In a typical day the appellant will take his dog for a walk in the morning and evening for a distance of 4 kilometres. A typical day may also involve the appellant going for a jog of 6 kilometres;
(b) the appellant misses meals, favours take away food and tends to binge eat. The appellant sometimes cooks food in a barbecue;
(c) the appellant has gained weight. The appellant had gained 12 or 13 kilograms of weight since stopping work and that his BMI placed him in the obese range;
(d) the appellant does little housework, shopping or cooking;
(e) the appellant showers every second day after physical exercise but only after his wife has prompted him. The appellant neglects to brush his teeth; and
(f) the appellant has become more dependent on his wife. The appellant said his wife “does everything”.
The MA observed from his physical examination of the appellant, which was done by way of video, that the appellant was casually attired and appeared well groomed.
The MA assessed the appellant’s impairment in self-care and personal hygiene as class 2, which is a mild impairment. In the PIRS rating form that was appended to the MAC the MA provided these reasons for that classification:
“Mr Mouawad eats a reasonable diet, although he tends to binge and has gained some weight. He has a regular exercise regimen. He showers and brushes his teeth less frequently, often after prompting from his wife.”
With respect to the MA apportioning the appellant’s WPI between the several workplace incidents to which the appellant was exposed and the manslaughter of the appellant’s mother the MA said the following under a heading “Details of any previous or subsequent accidents, injuries or conditions”:
“Mr Mouawad had no history of mental health problems before joining the NSWPF.
He started developing anxiety and mood symptoms some years before he left the
police force.He was off duty when his mother was killed and he went to her house. The nature of her death was distressing and likely to cause an intense emotional reaction in almost anyone.
Accepting that he had PTSD before this event, I consider that this event significantly
aggravated the PTSD.He returned to work and continued to work for about 14 months, with some absences. His continued exposure to trauma would have acted to perpetuate and aggravate his PTSD and mood problems.
In summary, I consider that he has mental health problems arising out of his work
experiences and that these have been aggravated by a subsequent event, the murder of his mother.”
The MA considered that the appellant had suffered “a subsequent injury” due to the manslaughter of his mother and that this had exacerbated the appellant’s PTSD and was contributing to the appellant’s current presentation and impairment. The MA said that it was not possible to determine an exact portion of the appellant’s impairment that was due to the death of his mother. The MA said that he used his clinical judgment to determine that at least 1/10th of the appellant’s current impairment was due to the death of the appellant’s mother.
The MA noted that neither Drs Smith nor Neill when they assessed the appellant’s impairment apportioned any part of the appellant’s impairment as being due to the “subsequent injury occasioned by the death of his mother”. The MA said the following with respect to that:
“I consider that they have omitted to adequately consider the subsequent injury occasioned by the death of his mother. The murder or manslaughter of a parent by a sibling would cause a high level of distress in almost anyone. It would often lead to diagnosable conditions such as PTSD. Whatever symptoms he may have had, Mr Smith was functioning well up until the time of the death of his mother. He has been very unwell since. I accept Mr Smith's assertion that he had experienced some symptoms of PTSD before the death of his mother.
Therefore, his mother's death has exacerbated a pre-existing, work-related PTSD.
Continued exposure to trauma in the workplace after February 2019 would have perpetuated and perhaps exacerbated his PTSD further. For these reasons, I consider that the exacerbation of his PTSD and depression resulting from the death of his mother must be considered when determining the work-related impairment.I again bring to the reader's attention that the death of his mother was not related to his work and that Mr Mouawad was not on duty when he attended her home on the day of her death.
The MA also said:
“It is conjectural whether Mr Mouawad would have developed PTSD solely due to the death of his mother had he not been a police officer. It is, however, a trauma sufficient to cause PTSD in many people.
It is also possible that had the manslaughter not occurred, he would have continued work without interruption, even with some trauma-related symptoms. Accepting that work is a significant contributor to this PTSD and that symptoms existed before the manslaughter, it is necessary to consider the impact of the PTSD on exacerbating his symptom and contributing to his impairment.”
The standard form for the MAC requires a Medical Assessor to specify the facts upon which the Medical Assessor has based the Medical Assessor’s assessment of a worker’s WPI. The MA, in this case at Part 9, stated that the facts upon which he based his assessment of the appellant’s WPI to be “my assessment of the worker today, and my reading of the documents provided by the PIC”. He repeated that within Part 10a of the MAC.
As mentioned above, the MA assessed the appellant to have a total of 9% WPI but attributed only 8% of that to the appellant’s work injury after deducting 1/10th of the appellant’s overall impairment from his total impairment as a consequence of that being due to the death of the appellant’s mother.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that with respect to the MA’s assessment of his impairment in self-care and personal hygiene, the MA erred by not having regard to a relevant criteria in that he did not have regard to the support that the appellant’s wife provided, and further had regard to an irrelevant criteria by having regard to recreational activities in which he engaged.
The appellant submitted the MA failed to consider whether he was able to live independently without support. The appellant submitted that he needs prompting from his wife to attend to his hygiene. The appellant submitted that the MA ought to have concluded that he is unable to live independently because he obtains regular support from his wife. The appellant submitted that his recreational activities were relevant for the assessment of his function in the category of social and recreational functioning and ought not have been considered with respect to self-care and personal hygiene.
The appellant submitted that the MA ought to have assessed his impairment in self-care and personal hygiene as being Class 3.
The appellant further submitted that his present symptoms are the combined result of both the workplace stressors to which he was subject and to the death of his mother. The appellant submitted that it cannot be discerned from the evidence that distinct elements of his symptoms are attributable to his mother’s death. The appellant submitted that in that circumstance the MA ought to have attributed the whole of his WPI to his work injury.
In reply, the respondent submitted that the examples of activities specified within the Guidelines for rating impairment in self-care and personal hygiene are examples only and do not amount to criteria mandating how the MA was to assess impairment. The respondent submitted that the MA clearly considered the evidence with respect to the appellant’s self-care and personal hygiene, including the statement of the appellant’s wife that was in evidence. The respondent submitted that assessment of permanent impairment involves clinical assessment on the day of the assessment. The respondent submitted that the appellant has not made out the grounds on which he has appealed with respect to the MA’s assessment of his impairment in the category of self-care and personal hygiene.
The respondent agreed that the appellant’s symptoms are the “combined result” of the appellant’s “work related psychological injury and the aggravation of his psychological injury as a result of this mother’s death”. The respondent submitted that paragraph 8g of the MAC required the MA to deduct “the additional impairment caused by the appellant’s mother’s death” from the impairment that was due to the work injury.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
It is necessary that a Medical Assessor correctly characterises the conduct and activities of a worker within the several PIRS categories that are to be assessed to determine a worker’s permanent impairment.[1] In this case, the Appeal Panel considers that the MA’s consideration of the appellant’s exercise regime to assess the appellant’s impairment in the category of self-care and personal hygiene was correct. Contrary to what the appellant submitted, his participation in those activities was not something that was to be assessed under the category of social and recreational activities because it did not involve his interaction with other persons. In other words, there is no social element involved with it.[2] In the Appeal Panel’s view, a worker engaging in exercise is something that is appropriately characterised as relating to self-care and personal hygiene where the exercise is done alone. In such a situation, the exercise a worker does involves looking after him or herself as the purpose will be to maintain or improve health. The MA was therefore correct, in the view of the Appeal Panel, to have regard to the appellant’s engagement in running and walking when considering what the appellant’s impairment was in the category of self-care and personal hygiene.
[1] Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [94] (Ballas)
[2] Ballas at [100]
The Guidelines at [1.6] instruct that an assessment of “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”.
As Garling J. noted in Jenkins v Ambulance Service of New South Wales[3] (Jenkins), the assessment of a worker’s permanent impairment from a psychiatric injury requires a Medical Assessor to have regard to all the materials at the Medical Assessor’s disposal and, based on that material, to determine the impairment of the worker, ranging from no impairment to total impairment, for each of the several PIRS categories. The Guidelines provide descriptors for each class of impairment for each of the several PIRS categories, but those descriptors are examples only of how a worker’s function or activity may be affected by a psychiatric condition. The examples are provided to assist the Medical Assessor to consider the ways in which a psychiatric condition may impact upon the worker’s activities and capacity to function in the relevant area to be assessed. They place no restriction on how the Medical Assessor is to rate the worker’s impairment in a particular category. They are not prescriptive.[4]
[3] [2015] NSWSC 663 at [56]
[4] Jenkins at [57]-[60]
In terms of how a Medical Assessor is to carry out an assessment, the Appeal Panel observes that Campbell J in Ferguson v State of New South Wales[5] cited at [23], with approval, the following passage from the decision of the Appeal Panel in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36:
“…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. …”
[5] [2017] NSWSC 887 (Ferguson)
The Appeal Panel considers that it is apparent from the MAC that the MA had regard to all the materials at his disposal when assessing the appellant’s impairment. He has said so in the MAC. That material included the brief of documents the Commission forwarded to him, which included the appellant’s wife’s statement. The material also included the history the MA obtained at examination and his findings from his examination of the appellant.
The Appeal Panel considers the MA took into account all relevant matters within that material when evaluating the appellant’s impairment in the category of self-care and personal hygiene.
It seems to the Appeal Panel that the MA, whilst considering all the material before him, gave pre-eminence to his clinical observations of the appellant and the history he obtained. He exercised his clinical judgment in doing so, which, consistent with what was held in Ferguson, the MA was entitled to do.
The MA was aware that the appellant required the support of his wife with respect to some of the activities that form part of the assessment of impairment in self-care and personal hygiene, specifically in terms of showering and brushing his teeth. The MA was aware that other than occasionally cooking on a barbecue the appellant did not cook.
The Appeal Panel considers for the reasons the MA provided in the PIRS rating form that it was open to the MA to classify the appellant’s impairment in the area of self-care and personal hygiene as mild. Whilst some of the appellant’s functioning correlates with the descriptors provided for a Class 3 impairment others accord with those provided for a Class 2 impairment. Overall however, and when regard is had to the regular exercise in which the appellant engaged which related to his self-care, it was, as the Appeal Panel has just noted, open to the MA to make the assessment he did.
With respect to the MA reducing his assessment of the appellant’s impairment on account the impact on the appellant from the death of the appellant’s mother by manslaughter, the Appeal Panel considers that MA made an error such that the MAC contains a demonstrable error. Common law principles of causation in tort are to be applied to determine the degree of permanent impairment a worker has from a work injury.[6] An impairment of a worker can have multiple causes.[7] In this case it is uncontroversial that the appellant’s present impaired functioning is the consequence of both the distressing and traumatic incidents to which he was exposed over a long period of time in his employment with the respondent and also to the dreadful circumstances surrounding the death of his mother. No distinct part of his impairment is attributable solely to the work stressors or solely to the death of his mother. Indeed, as the MA indicated, the death of his mother worsened his illness of PTSD that had already been set in train by the workplace incidents. The appellant’s impaired functioning consequent upon his symptoms cannot be disentangled into a part that relates solely to his work incidents and solely to the death of his mother. In other words, the constellation of his symptoms from which he has impaired functioning is due both to the workplace incidents and the death of his mother.
[6] NSW Dept of Education v Johnson [2019] NSWCA 321 at [55] and [124]
[7] Calman v Commission of Police [1999] HCA 60 at [38]-[40]; ACQ Pty Ltd v Cooke [2001] HCA 28 at [25]
Given that, and based on common law principles, his impaired functioning is to be attributed to his work injury, consistent with the authorities of Calman and Johnston. The injury he suffered in his workplace materially and substantially contributed to his present impaired functioning.
The MA was wrong therefore to discount the appellant’s impairment on account of the worsening of the effect of his PTSD that resulted from the circumstances surrounding his mother’s death.
The Appeal Panel notes that in terms of considering whether there is a demonstrable error in the MAC and whether the Appeal Panel must revoke the MAC, the Appeal Panel is limited to considering errors raised in the appellant’s submissions, but if a demonstrable error is found by the Appeal Panel, then all elements of the matter that was referred to the MA for assessment must be considered by the Appeal Panel when reassessing the referred medical dispute.[8] In doing that, the Appeal Panel can adopt any findings of the MA, and the assessments the MA made based on those findings, provided the Appeal Panel is satisfied that those findings and the consequent assessments are correct. The Appeal Panel cannot however adopt any findings of the MA or assessments based on those findings if the Appeal Panel considers they are incorrect.[9]
[8] See Roads & Maritime Services v Rodger Wilson [2016] NSWSC * look at decision in Skocic
[9] See Queanbeyan Racing Club Ltd v Burton NSWSC 315 at [82]
The Appeal Panel considers that the MA’s findings with respect to the appellant’s impairment in several PIRS categories are correct. The Appeal Panel notes that neither party suggested otherwise. The Appeal Panel specifically observe that with respect to the category of social and recreational activities the MA expressly excluded the appellant’s walking and running when rating the appellant’s impairment in this category, as a consequence of those activities lacking social component. As indicated above, the MA was right to do so.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 September 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
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 Douglas Andrews 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) |
| Psychiatric | 18/11/19 | Chapt 11 | - | 9% | - | 9% |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
Marshal Douglas
Member
Professor Nicholas Glozier
Medical Assessor
Dr Patrick Morris
Medical Assessor
1 December 2021
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