Nicola v Sturdy Components Pty Ltd
[2023] NSWPICMP 574
•15 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nicola v Sturdy Components Pty Ltd [2023] NSWPICMP 574 |
| APPELLANT: | Loucas Nicola |
| RESPONDENT: | Sturdy Components Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 15 November 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against a psychological injury assessment of 7%; whether Medical Assessor (MA) had erred in his assessment of the psychiatric impairment rating scale (PIRS) category of social functioning; whether statement that divorce contemplated justified a moderate class 3 assessment; whether the MA had failed to properly apply the provisions of Chapter 11.10 of the Guides; Held – MA assessment a practical demonstration of the pre-eminence of a clinician; ambiguity of evidence clarified in the history taken; Ferguson v State of New South Wales applied, no error in the mild class 2 assessment made: chapter 11.10 now ultra vires; Camden Council v Harle applied; 1/10th deduction pursuant to section 323 appropriate; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 July 2023, Loucas Nicola, the appellant 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 19 June 2023.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 April 2023 the President’s delegate referred this matter to a Medical Assessor for an assessment of WPI caused by a psychiatric and psychological disorders deemed to have occurred on 14 June 2022.
The history was accurately recounted by the Medical Assessor.
Mr Nicola refused to cooperate in some allegedly fraudulent conduct by the director of the company. He also had a negative experience regarding a sexual harassment claim brought against a director and Mr Nicola alleged that the company was behaving fraudulently regarding the Queensland branch.
Mr Nicola also became involved in some errors he made regarding wrong pay which was used as a pretext to terminate his employment.
The Medical Assessor assessed 7% WPI.
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. Such re-examination was not sought by Mr Nicola although as a matter of interest Mr Nicola ticked the “yes” circle next to the question “Do you request the opportunity to present oral submissions to the Appeal Panel?”[1]
[1] Appeal papers page 3.
No submissions were made and no procedural steps had been taken to further this request and we note the appellant has relied on the written submissions. We assume the request was made inadvertently therefore.
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 which have been considered by the Appeal Panel.
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. 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 alleged error in the rating assessment in the Psychiatric Impairment Rating Scale (PIRS) category of “social functioning”.
The appellant also submitted that the Medical Assessor had not applied the proper criteria regarding the question of a prior injury, pre-existing condition or abnormality.
The MAC
In considering Mr Nicola’s social activities and activities of daily living the Medical Assessor said:[2]
“Mr Nicola is 66 and living with his wife, who is a lawyer. They have two adult children. Their daughter recently moved overseas and his son and his fiancé are living with them for the last six months. He said that he feels ashamed for the way that the family has suffered because of him and he avoids talking to people, and has withdrawn from everybody. He still goes to social functions because his wife wants him to go, but when he goes he remains quiet, and occupies himself with an activity to avoid engaging in conversation. For example, about a month ago his son had an engagement party, he was serving food so that he did not have to talk to people. Mr Nicola said he has lost most of his friends now. There is only one friend he talks to weekly and he stated a lot of people avoid him too. He stated his children no longer confide in him.
…
Mr Nicola has been married for 43 years, but said that his wife can be critical and can put him down, and more recently she would put him down every day, and would make fun of him as she resents him for her having to delay her retirement. They have been sleeping in separate rooms for the last two years. She mentioned divorce once, and there has been no further talk or plan to separate or divorce.
…
Mr Nicola used to have five close friends and would go to dinner with them every Friday. This does not happen anymore.”
[2] Appeal papers page 31.
At [10c] of the templated question states:
“c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs”
In answer, the Medical Assessor considered the evidence before him including Mr Nicola’s statements. He noted the medico-legal reports of Dr Glen Smith dated 31 May 2022 for
Mr Nicola, and of Dr Mukesh Kumar dated 15 November 2022 for the respondent. In commenting on those opinions, the Medical Assessor noted there was a difference in the rating given to social and recreational activities in that Dr Smith had rated that category as 3 whereas Dr Kumar had rated 2.The Medical Assessor discussed the difference and agreed with Dr Smith that the appropriate rating was 3.
The Medical Assessor also considered the opinions of the two experts with regard to social functioning. He said:[3]
“In terms of social functioning, Dr Smith rated a 3 and noted Mr Nicola has a strained relationship and is being criticised by his wife but cannot stand up to her, and reportedly she had requested a divorce. Dr Kumar rated a 2 and noted his marital strain. In my assessment, I noted a similar history, that there has been marital straining and they sleep in different rooms. She has mentioned divorce and this had not progressed further. He had an overall reasonable relationship with his family but lost many friends, and overall I consider this consistent with a rating of 2.
[3] Appeal papers page 34.
In the formal table 11.8 PIRS rating form in giving his reasons for finding a rating of 2 for social functioning the Medical Assessor said:[4]
“Mr Nicola's relationship with his wife has deteriorated and they have become emotionally distant. They sleep in different rooms now. He is anxious and socially avoidant, and does not have contact with most of his friends. He does not contact his friends anymore. The relationship with his general family is reasonable but has become distant too.”
[4] Appeal papers page 38.
In considering the question of a deduction for the relevant previous injuries, pre-existing conditions or abnormalities, the Medical Assessor took a history of a prior psychological injury whilst Mr Nicola was working for BBQs Galore. Mr Nicola had accused management there of manipulating the figures, which Mr Nicola refused to do, and he took sick leave. He consulted a psychiatrist at St John of God Hospital. He had been working for BBQs Galore for 21 years and he was placed on Cipramil 20mg, which he had continued to take for the last 16 years.
The Medical Assessor noted that there was a time when he tried to cease medication, but “his wife noticed the change in his behaviour so he resumed it”. The Medical Assessor stated at [11] of the MAC that Mr Nicola had a pre-existing condition, being a major depressive disorder. He said that this condition contributed to the current impairment, as the previous depressive symptoms were “similar to his current psychological injury and recurrent depression is generally more serious and more disabling”.
The Medical Assessor found the extent of the deduction difficult and/or costly to determine so pursuant to s 323(2) of the 1998 Act he deducted 1/10th.
SUBMISSIONS
The appellant
The appellant kindly reproduced the descriptors for the categories of social functioning set out at table 11.4:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years)
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.
Class 4 Severe impairment: Unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5 Totally impaired: Unable to function within society. Living away from populated areas, actively avoiding social contact.”
We were referred to the statement by Mr Nicola dated 25 January 2023 and his comments relevant to his social functioning.
We were also referred to the opinion of Dr Glen Smith in his report of 31 May 2022.
These were contrasted with the findings by the Medical Assessor that we have extracted above.
Mr Nicola submitted that the class 2 rating was inconsistent with the evidence obtained on examination.
We were referred to the distinction between the class 2 and class 3 descriptors, that in class 2 the existing relationship were strained whereas in class 3 previously established relationships were severely strained.
The evidence, it was submitted, was more consistent with Mr Nicola’s relationship with his wife as being severely strained for two years.
It was submitted that after 43 years they had been sleeping in separate rooms for the last two years and the possibility of divorce had been raised by Mrs Nicola.
It was submitted that the evidence indicated that his relationship was one of “deep resentment, frequent arguments and communication limited to running of the household”.
It was submitted further that the evidence demonstrated that there had been a loss of close friendships with people that Mr Nicola had previously socialised with regularly.
It was also submitted that Mr Nicola’s relationship with his children had become severely strained “in that they no longer confide in him and he actively avoids spending time with his family”.
As to the challenge to the deduction made by the Medical Assessor, Mr Nicola relied upon chapter 11.10 of the Guides.
The respondent
The respondent summarised the findings by the Medical Assessor. We were referred to a Medical Appeal Panel decision NSW Police Force v Daniel Wark.[5] As will be seen below, this dicta was cited with approval in the Supreme Court.
[5] [2012] NSWWCCMA 36.
It was also submitted that another Medical Appeal Panel authority determined the descriptors in the PIRS table are not to be regarded as strict criteria. As will be seen below, that too has been the subject of confirmation in the Supreme Court.
The respondent made some submissions regarding the facts.
We note the respondent’s remaining submissions which we refer to in the discussion and there is no point in repeating them twice.
We note the argument advanced regarding the interpretation of Chapter 11.10 of the Guides.
DISCUSSION
The Psychiatric Impairment Rating Scale
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[6] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[6] Guides 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[7]
[7] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[8] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. 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’.
24. 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.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides “the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment”: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are “examples only”: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said “they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected”: Appeal Panel reasons at [37].”
[8] [2017] NSWSC 887.
In Glenn William Parker v Select Civil Pty Ltd,[9] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…”
[9] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
The appellant’s submission regarding the marital strain was said to be of sufficient seriousness to warrant the revocation of the MAC and a finding that the appropriate level social functioning was a moderate class 3 level.
Mr Nicola asserted in his third statement of 25 January 2023 that “I am regularly concerned that [my wife] wants a divorce.”[10] He also relied on the opinion of Dr Smith of 31 May 2022 that:[11]
“Mr Nicola reported strain in the relationship with his wife and he noted frequent arguments, ‘She criticises me, there’s quite a lot of aggression [verbal], I don’t feel capable of standing up to her’. He noted that she has resentment ‘that I’m not working’. She has reportedly requested a divorce.”
[10] Appeal papers page 62.
[11] Appeal papers page 106-7.
One of the distinctions between a class 2 and a class 3 evaluation in this category relates to whether there was a strained relationship, in the case of a mild impairment, or whether in the case of a moderate impairment, the previously existing relationships were “severely strained” and there had been “periods of separation or domestic violence.” The evidence before the Medical Assessor was capable, as was argued by the appellant, of justifying a class 3 assessment. It can be seen that the evidence was of a general nature, the only facts militating against a class 3 assessment being the fact that there had been no question of domestic violence.
The resolution of this issue by the Medical Assessor is a practical demonstration of his pre-eminent position as the clinician with the responsibility of conducting his enquiries face-to-face with the appellant, as described by Campbell J in Ferguson. The Medical Assessor resolved the issue by obtaining from Mr Nicola a more detailed history, as we have indicated above, that there had been mention by Mrs Nicola of divorce once, and there had been no further talk or plan to separate or divorce. We would observe that Mr and Mrs Nicola met at high school,[12] had been together for 43 years, and had raised two children who are now adults. Although Mr and Mrs Nicola sleep in separate bedrooms, they still live together, and Mr Nicola engages with his wife by doing, on her instructions, such things as the household chores, and all the shopping.
[12] Appeal papers page 89.
We do not read the comment made to the Medical Assessor by Mr Nicola that “his wife could be critical and can put him down” as being reflective of a new element in his relationship. The fact that she would make fun of him because he was unable to work and that her retirement was delayed, again does not demonstrate a severe strain in the relationship sufficient to warrant a class 3 assessment. We also note that his wife’s criticism was not of his impairment, but related to her social behaviour.
Moreover, the descriptors, as noted above, are a general guide to the behavioural aspects of a person with a psychological disorder in the various categories within the PIRS.
In the final analysis Mr Nicola has not shown anything more than a mere disagreement about which reasonable minds might differ.
We note that there has been considerable attention paid by the parties to the provisions of Chapter 11.10 of the Guides. It is now settled that Chapter 11.10 is inconsistent with s 323 of the 1998 and accordingly ultra vires.[13]
[13] Camden Council v Harle [2022] NSWPICMP 339 at [115 – 133].
The appropriate test for the reduction is the application of s 323. Mr Nicola’s prior history with BBQs Galore does demonstrate a similar pre-existing condition, namely a major depressive disorder. This is the same diagnosis that applies to the condition caused by the subject injury. We note the similarity of these workplace events and their psychological consequences to the current injury. We concur that his prior condition caused Mr Nicola impairment which has contributed to the impairment he has suffered from the subject injury.
We find no error in the 1/10th deduction applied by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 July 2023 should be confirmed.
0
5
0