Murray v Sydney Trains
[2024] NSWPICMP 353
•3 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Murray v Sydney Trains [2024] NSWPICMP 353 |
| APPELLANT: | Damien Murray |
| RESPONDENT: | Sydney Trains |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 3 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of the appellant’s impairment in self-care and personal hygiene and in concentration, persistence and pace were correct based on the evidence; Held –MA’s ratings incorrect based on the history she obtained; Medical Assessment Certificate (MAC) consequently contained a demonstrable error; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 February 2024 Damien Murray, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 January 2024.
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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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
The appellant was employed by Sydney Trains, the respondent, between 21 January 1991 and 8 June 2023. From 1996 until the end of his employment, he worked as a train driver. Due to several incidents that occurred in his employment with the respondent, the appellant suffered a psychological injury. He claimed compensation for permanent impairment he said resulted from his injury, relying on a report of psychiatrist Dr Abhishek Nagesh dated 20 September 2022 who had assessed the appellant had 20% whole person impairment (WPI) from his injury.
After the respondent received the appellant’s claim for compensation, its solicitors organised for the appellant to be examined by psychiatrist Dr Judith Clarke on 21 April 2023. In a report dated 5 May 2023 Dr Clarke advised the respondent’s solicitors that the appellant had suffered a work injury in the form of an aggravation of a pre-existing post-traumatic stress disorder. She also advised that her opinion was that the appellant’s work-related aggravation of that illness had resolved. She advised that she also considered the appellant had an alcohol use disorder.
On 21 June 2023 the respondent’s insurer notified the appellant under s 78 of the 1998 Act that it disputed liability for his claim. It relied on the report of Dr Clarke.
The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim. The matter was referred to a Member of the Commission, namely Ms Jacqueline Snell, who with the consent of the parties directed on 21 September 2023 that the matter be remitted to the President of the Commission so that it could be referred to a Medical Assessor in accordance with s 321 of the 1998 Act to assess various medical disputes between the parties relating to the appellant’s permanent impairment from his injury.
On 26 September 2023 a delegate of the President duly issued that referral to the Medical Assessor.
The Medical Assessor examined the appellant on 21 November 2023 to assess the medical disputes that had been referred to her.
The Medical Assessor diagnosed an “exacerbation of Post-Traumatic Stress Disorder” and an ‘alcohol Use Disorder’. She assessed the degree of the appellant’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS) as set out in paragraphs 11.11 and 11.12 of the Guidelines. The Medical Assessor rated the appellant’s impairment in self-care and personal hygiene as Class 2, in social and recreational activities as Class 3, in travel as Class 2, in social functioning as Class 2, and in concentration, persistence and pace (CPP) as Class 2 and in employability as Class 5. She noted that the median of her Class scores is 2 and the aggregate of her scores is 16, which converts to 9% WPI.
The appellant in his appeal against the MAC has taken issue with the Medical Assessor’s rating of his impairment in the PIRS for self-care and personal hygiene and CPP.
The Medical Assessor provided the following reasons in the PIRS rating form within the MAC for her rating of the appellant’s impairment in self-care and personal hygiene:
“Mr Murray reported that his self-care is impaired. He used to be fastidious when he used to work. He said that he showers about two days a week and his wife has to take care of the laundry and at times, she has to help him with the chores. He at times helps his wife with the cooking, although she does most of the household chores.
Objectively, Mr Murray was well groomed and was not overly dishevelled.”
The Medical Assessor also recorded in the MAC the reasons that Dr Nagesh had provided in his report of 30 September 2022 for his rating of the appellant’s impairment as Class 3 in self-care and personal hygiene, which were:
“Your client cannot live independently. He relies on his wife to do the cooking, cleaning and shopping. He showers only once or twice a week. He does not change his clothes. He misses meals frequently.”
The Medical Assessor remarked that Dr Nagesh had “noted the same history as given by Mr Murray during the assessment”. The Medical Assessor also remarked that she observed the appellant to be well groomed and not overly dishevelled during her interview of him and she indicated, because of that, she rated the appellant’s impairment as mild rather than moderate as Dr Nagesh had done.
The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in CPP as Class 2:
“Mr Murray reported that his attention and concentration are poor. He said that he has not read a book in a long time and has stopped playing computer games as he cannot concentrate. He often procrastinates and does not finish things which adds to
his frustration. Mr Murray added that he is unable to follow complex instructions and hence does not cook food anymore. He can probably focus on reading for short periods of time for up to 15-20 minutes and then loses focus.”
The Medical Assessor also recorded in body of the MAC that the appellant was able to maintain attention and concentration throughout her examination of him and that his thoughts were logical and goal directed.
The Medical Assessor again detailed the reasons Dr Nagesh had provided for rating the appellant’s impairment in CPP as Class 3, which were:
“My rationale for this is because of his ongoing PTSD symptoms. His attention and concentration remain poor. He cannot read a book, watch television for long, has no capacity to undertake a retaining course.”
The Medical Assessor remarked with respect to that that the appellant is able to do some of the maintenance around his house but is unable to finish it and that the appellant can focus on intellectual and demanding tasks for up to 20 minutes and then feels fatigued. She said that her view is that this warranted a Class 2 rating rather than a rating of Class 3 as Dr Nagesh had made.
The Medical Assessor also found that the appellant had a pre-existing condition, which she identified as post-traumatic stress disorder and unipolar depression. The appellant takes no issue with that in his appeal.
The Medical Assessor considered that a proportion of the appellant’s permanent impairment from his injury was due to that pre-existing condition, and she assumed, in accordance with s 323(2), that the deduction to be made under s 323(1) on account of that was 1/10th. The appellant also takes no issue with that in his appeal against the MAC.
Consequently, upon the Medical Assessor making that deduction under s 323(1) of the 1998 Act, she assessed the degree of the appellant’s impairment to be 8% WPI, and certified that.
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 appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.
During its preliminary review, the Appeal Panel considered whether it should receive into evidence a statement the appellant signed on 8 February 2024.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Notwithstanding that evidence that a party may seek to introduce in an appeal before an Appeal Panel is evidence that was not available to the party or could not reasonably be obtained by the party before the medical assessment, the Appeal Panel still has a discretion as to whether it will allow the introduction of that evidence. If the evidence is irrelevant or if it is unreliable an Appeal Panel is not required to consider it when determining an appeal.[1]
[1] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 at [102].
The appellant in his statement of 8 February 2024 provides evidence of his function in concentration and in self-care and personal hygiene. That is not fresh evidence as he had knowledge of that before the assessment and hence his recount of these matters was available to him and could reasonably have been put into a statement before the medical assessment. Consequently, his statement, insofar as it relates to that, is not admissible under s 328(3).
The appellant in his statement also describes some of the history he provided to the Medical Assessor during her examination of him. The appellant made his statement around three months after the Medical Assessor examined him. The Appeal Panel is unable to ascertain from the Medical Assessor the correctness of what the appellant has said he told her during her examination of him. The Appeal Panel infers that the history the Medical Assessor detailed in the MAC was based on notes she would have made at the time she examined the appellant. It is likely therefore that the history she detailed in the MAC is accurate and sufficient for what she considered was relevant and necessary for her to rate the appellant’s impairment in the several PIRS categories. Furthermore, given the appellant’s recollection of what he considers was said during examination is made around three months subsequent to the examination, and he told the Medical Assessor he had poor attention, focus and concentration, it is unlikely in the Appeal Panel’s view to be a reliable account of what was said. In those circumstances, the Appeal Panel, as a matter of discretion, does not receive those parts of the appellant’s statement into evidence.
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.
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 the Medical Assessor relied on her observations of him during examination rather than the relevant clinical history relating to his self-care and personal hygiene. The appellant submitted that the Medical Assessor had accepted his history and description of his condition and symptoms, which were corroborated by the history Dr Nagesh obtained. The appellant submitted that based on that history, the Medical Assessor was wrong to rate his impairment as Class 2 in self-care and personal hygiene and ought to have rated it as Class 3.
With respect to CPP, the appellant submitted that the Medical Assessor detailed a similar history to that which Dr Nagesh had obtained. The appellant submitted that the Medical Assessor “opted to ignore the history”. The appellant submitted that the Medical Assessor erred by not rating his impairment in CPP as Class 3 based on what he contended was the relevant history, as corroborated by the history that Dr Nagesh obtained.
In reply, the respondent submitted that the evidence, including the history the Medical Assessor detailed in the MAC, indicated that the appellant occasionally assists with household chores. The respondent submitted that the Medical Assessor observed that the appellant was well groomed and not overly dishevelled during examination. The respondent highlighted that Dr Clarke similarly found the appellant appeared well groomed when she examined the appellant.
The respondent submitted that the Medical Assessor based her assessment of the appellant’s impairment in self-care and personal hygiene on an adequate and proper consideration of the documentary evidence and on her examination of the appellant. The respondent submitted that the fact Dr Nagesh rated the appellant’s impairment in self-care and personal hygiene differently to the Medical Assessor amounts to a difference of opinion about which reasonable minds might differ.
The respondent submitted that there was a reasonable basis for the Medical Assessor to find that as at the date of assessment, the appellant had a mild rather than a moderate impairment in self-care and personal hygiene.
The respondent submitted that the Medical Assessor, and also Dr Clarke when she examined the appellant, observed that the appellant was able to maintain attention and concentration throughout the interview. The respondent also referred to a desktop investigation dated 9 June 2023 that indicated the appellant had been active on social media and engaged in political discussions. The respondent submitted that this demonstrated the appellant had a level of functionality that aligned with the criteria for a Class 2 rating in CPP. The respondent again submitted that the fact that the Medical Assessor assessed the appellant’s rating in CPP differently from Dr Nagesh amounts only to a difference of opinion upon a matter about which reasonable minds might differ.
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.
The descriptors provided in Table 11.1 of the Guidelines for a Class 2 impairment for self-care and personal hygiene are “able to live independently; looks after self adequately, although may look unkept occasionally; sometimes misses a meal or relies on takeaway food”. The descriptors provided for a Class 3 rating are:
“Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2 – 3 times per week to ensure minimum level of hygiene and nutrition.”
The Appeal Panel considers that the Medical Assessor’s rating of the appellant’s impairment as Class 2 in self-care and personal hygiene is not justified by the reasons she provided in the PIRS rating form or by the history she detailed in the MAC relating to the appellant’s function in self-care and personal hygiene. Simply put, the Appeal Panel considers it was not open to the Medical Assessor to rate the appellant’s impairment as Class 2 and the correct rating is a Class 3 impairment, that is a moderate impairment.
The history the Medical Assessor detailed in the MAC reveals that the appellant is not able to live independently in that he relies on the support of his wife to cook his meals, although the appellant does assist at times. The appellant also relies on his wife to undertake household chores and to do his laundry. He also only showers twice weekly. That indicates a seriousness of impairment that aligns with what is described by the descriptors for a Class 3 impairment, and not what is described by the descriptors for a Class 2 impairment.
It seems, in the Appeal Panel’s view, that the Medical Assessor placed too much weight on the appellant’s appearance on the day at examination and not on the totality of matters relating to the appellant’s performance in self-care and personal hygiene. The Appeal Panel considers that it is not unusual for a worker affected by a psychological injury to make a special effort to ensure their appearance at an examination by a Medical Assessor was as good as could be. That is a factor that must be weighed, in the Appeal Panel’s view, with the other matters relating to the appellant’s performance in self-care and personal hygiene. Those other matters, as just said, revealed the appellant is unable to live independently and needs the support of his wife to ensure his self-care and personal hygiene.
The descriptors provided in Table 11.5 of the Guidelines for a Class 2 impairment in CPP are:
“Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
The descriptors provided for a Class 3 impairment are:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
Based on what the Medical Assessor explained in the PIRS rating form for rating the appellant’s impairment as Class 2 in CPP, the Medical Assessor’s rating was incorrect. The Medical Assessor noted that the appellant could only read for 15 to 20 minutes prior to losing focus. The Medical Assessor noted that the appellant was unable to follow complex instructions. The Medical Assessor noted that the appellant has stopped playing computer games because he cannot concentrate. This describes a severity of impairment in CPP that aligns with the descriptors provided for a Class 3 impairment, that is a moderate impairment. It does not fall within the level of impairment that is described by the descriptors for a Class 2 impairment.
The Appeal Panel notes that the Medical Assessor recorded in the MAC that the appellant maintained attention and concentration throughout her examination of him and was orientated to time and place. She did not, however, rely upon those observations when rating the appellant’s impairment in CPP.
Further, within the body of the MAC the Medical Assessor explained that the appellant was unable to complete maintenance work he initiated around his house. She described that in the context of comparing her assessment of the appellant’s impairment in CPP with Dr Nagesh’s assessment. It can be inferred from that the appellant is unable to complete maintenance work because of difficulties with persistence. The Medical Assessor, also when comparing her assessment of the appellant’s impairment in CPP with the assessment Dr Nagesh made, noted that the appellant’s limit of focus on intellectually demanding tasks was up to 20 minutes before he felt fatigued. Again, in the Appeal Panel’s view, these matters indicate that the appellant’s impairment in CPP is moderate. They accord with the descriptors for a Class 3 impairment and not with a Class 2 impairment.
Consequently, the Appeal Panel considers the Medical Assessor’s rating of the appellant’s impairment in CPP did not accord with the evidence and was consequently wrong.
The Appeal Panel’s correction of the errors the Medical Assessor made is to assess the appellant’s impairment as Class 3 in self-care and personal hygiene and Class 3 in CPP. When that is done the median of the appellant’s scores of all the ratings in the PIRS categories increases to 3 and the aggregate of the scores increases to 18. In accordance with Table 11.7 of the Guidelines that converts to 22% WPI.
As said, no issue was raised with the deduction the Medical Assessor made under s 323(1) of the 1998 Act and when that deduction is made to the corrected assessment of the appellant’s overall permanent impairment from his injury, 20% WPI is obtained. That is what the Appeal Panel assesses is the degree of the appellant’s permanent impairment from his injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 January 2024 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
Matter number: | W6090/23 |
Applicant: | Damien Murray |
Respondent: | Sydney Trains |
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 Surabhi Verma 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 and psychiatric disorder | 16/08/2021 | Chapter 11 | - | 22% | 1/10 | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0
2
0