Nolan v Sydney Cricket and Sports Ground Trust

DETERMINATION OF APPEAL PANEL
CITATION:	Nolan v Sydney Cricket and Sports Ground Trust [2021] NSWPICMP 178
APPELLANT:	Carl Nolan
RESPONDENT:	Sydney Cricket and Sports Ground Trust
APPEAL PANEL:	Member Deborah Moore Dr Julian Parmegiani Dr Douglas Andrews
DATE OF DECISION:	23 September 2021
CATCHWORDS:	WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) incorrectly recorded details from the appellant during the assessment and incorrectly interpreted the evidence; no particular categories of the Psychiatric Impairment Rating Scale (PIRS) were identified as being incorrect; fresh or additional evidence admitted in the interests of justice given the elapsed time between the initial assessment (no maximum medical improvement) and the current assessment; nothing in all the evidence disclosed any error by the MA; Ferguson v State of New South Wales applied; Held - Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 July 2021 Carl Nolan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wasim Shaikh, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 June 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

·        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, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA5).

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 worker to undergo a further medical examination because although one was requested, we consider that we have sufficient information before us to enable us to determine this appeal for reasons that will become apparent in the body of these reasons.

Fresh evidence

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.
The appellant seeks to admit the following evidence:
(a)    Statement of the appellant worker dated 7 July 2021;
(b)    Statement of Ms Sharon Karpis dated 28 June 2021, and
(c)    correspondence from the appellant’s current employer, Jason Manley of City Building Services dated 28 June 2021.
The appellant submits that the evidence is relevant to the MA’s assessment which it is submitted does not reflect an accurate history.
The appellant submits that the evidence was not available and could not reasonably have been obtained because:
“The appellant has prepared a further statement which is submitted to provide the correct details which were incorrectly recorded by the assessor. Certain errors identified are corroborated by the Statements provided from his partner Ms Sharon Karpis, and his employer Mr Jason Manley.
It is submitted that the attached documents should be admitted in the interests of justice. The comments in these documents would influence the findings of any Medical Appeal Panel and have probative value…”
The respondent submits as follows:
“Whilst the Respondent acknowledges that elements of the statement from the Appellant dated 7 July 2021 relate to the history taken by Dr Shaikh on assessment on 11 June 2021, that statement also attempts to provide further discussion on the Appellant’s level of function and impairments in consideration of the PIRS categories. To the extent that the Appellant’s statement relates to discussion of his level of impairment and function, the Respondent submits that these ought not be allowed into evidence…
Therefore, in the absence of any sufficient explanation by the Appellant as to why his statement evidence, as it relates to the PIRS categories, and the entirety of the material from Ms Karpis and Mr Manley could not have been procured prior to the Appellant’s further assessment with Dr Shaikh on 11 June 2021, the Respondent submits that the Appellant’s application to rely on the further documents should be rejected.”
The Appeal Panel determines that the following evidence should be received on the appeal:
(a)    Statement of the appellant worker dated 7 July 2021;
(b)    Statement of Ms Sharon Karpis dated 28 June 2021, and
(c)    correspondence from the appellant’s current employer, Jason Manley of City Building Services dated 28 June 2021.
Although the Panel accepts that the evidence is not strictly in compliance with the provisions of s328(3) of the 1998 Act, the Panel determines that the evidence should be received on the appeal in the interests of justice for the following reasons.
We note that the appellant was initially assessed by the MA on 9 June 2020. The MAC of Dr Shaikh dated 23 June 2020 assessed the appellant as having not reached maximum medical improvement (MMI). The appellant was thereafter re-assessed by Dr Shaikh on 11 June 2021, with a further MAC being issued on 15 June 2021. This further MAC is now the subject of the current appeal.
Given the amount of time that has elapsed since the initial assessment and given the submissions by the appellant as to the subject matter of this additional material we are of the view that it should be admitted.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA has incorrectly recorded details from the appellant during the assessment and incorrectly interpreted the evidence and accordingly has made findings that are not consistent with the evidence.
No particular categories of the Psychiatric Impairment Rating Scale (PIRS) have been identified as being incorrect, but we will address this aspect of the appeal in our discussion below.
In reply, the respondent submits that no errors have been made.

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 was referred to the MA for assessment of whole person impairment (WPI)
in respect of a primary psychological injury resulting from a deemed date of injury of 13 December 2018.
In his recent MAC of 15 June 2021 the MA updated the history he obtained earlier and said:
“Mr Nolan experienced emotional symptoms, in relation to his employment as a maintenance officer at the Sydney Cricket Ground. He was there for 31 years, until December 2018. He was advised that his employment would be terminated at short notice. This decision was retracted, but subsequently, his duties were taken off him and he lost overtime.
His emotional symptoms in the first half of 2019 included low mood, anxiety, sleep disturbances, impaired cognition, and reduced socialising. He lost appetite and motivation. He was referred to a psychiatrist, Dr Ahmed, and was commenced on antidepressants. In April 2019, he was referred to Leonie Wolff, psychologist.
He was retrenched in June of 2019. Despite receipt of intervention from his psychiatrist and psychologist, his ill health continued.
He was capable of securing alternative employment, but notes that his functioning has been suboptimal.
I have previously assessed Mr Nolan in June 2020, when I noted his condition had not reached Maximal Medical Improvement.”
Present treatment was noted as:
“Mr Nolan was attending his psychiatrist, Dr Ahmed, every two months. He notes that these sessions are beneficial. He visits a psychologist Leanne Wolf, as often as possible.
He is prescribed Endep 25mg a day as an antidepressant. He would use the anti-anxiety medication diazepam, up to two tablets a day.”
Present symptoms were noted as:
“Mr Nolan is still resident on his own... He remains in a relationship and has been so for the last three years. He does not live with her and would meet her once a week.
He continues to have periods of low mood, and anxiety in relation to his future. He has some ‘better days’ where he will clean the house or sit in the backyard. He still ruminates over past events and has triggers from watching TV. He has avoided going back to his old workplace to pick up items from his locker. His sleep is disturbed, although he notes that he has some nights where he has better sleep. He continues to experience nightmares in relation to work events. He remains easily fatigued.
He looks after himself. ‘the best I can’. He does not shower regularly. He does not shave regularly. He still does not like to cook and relies on takeaway food. He has put on weight. He is capable of living independently, with his partner living away. He can undertake essential maintenance around the house.
Aside from work, he generally does not leave the house. He no longer has friends visiting him ‘I have shut them out’. His partner comes and visit him. He can go by himself to the local shops and tries to walk. He still has interest in watching television. He experiences anxiety when in social environments, and has tried going for dinner with his partner, but has had to come back due to anxiety.
He is capable of travelling extended distances, and had a year back driven to Melbourne, 800 km, to see his son. He can drive to and from work, 30 minutes each way, and as part of work commitments, has travelled further away, including to Newcastle (2 hrs each way) and Canberra (2 hours each way).
His relationship with his partner remains disturbed, and his libido is poor. They have never lived together. He still speaks with her regularly. He still has contact with his brother. He has some contact with friends via messaging but does not see them as often. He has not had fallouts with friends.
His concentration remains poor. He is easily overwhelmed. He forgets tasks or may be distracted. He can be disorganised in the workplace but is involved in complex tasks such as using power tools and installing/replacing air filters.
He is still working as a trade’s assistant in an air conditioning company and has done this for just over a year. He works full-time hours but notes that his employer is supportive, and he can take half-days or full days off when he needs. This would happen every 1-2 weeks. He experiences anxiety when he is invited to the supervisor’s office.
He has had ideations of self-harm, without intent or planning. He has visions of him passing away and then notifying his son himself that ‘your dad has passed away.’”
Findings on examination were reported as follows:
“The interview was conducted via video conference, with Mr Nolan being unaccompanied. He could provide a reasonable history, but there was evidence of some agitation. His thoughts appeared more organised when compared to those in the last assessment. His grooming was sub-optimal. He could focus on questions but had difficulties in recall. His insight and judgment could only be described as fair. There were no psychotic symptoms or obsessive phenomena. He noted ideas but no intent towards self-harm.”
The MA diagnosed a major depressive disorder. He added:
“Mr Nolan’s condition of Major Depressive Disorder has reached maximal medical improvement. His impairment is 6% WPI but I would award an additional 1% for treatment effect (treatment has helped reduce impairment and without treatment his impairment would increase), making his overall impairment 7% WPI.”
In commenting upon other medical opinions, the MA said:
“I note Dr Bertucen’s report, and ratings of impairment, conducted after the assessment of October 2019. Some of these ratings do not apply now, for example with Mr Nolan returning to work. I disagree with the rating on self-care and concentration, as it currently applies.”
As we said earlier, the appellant has not challenged any of the ratings ascribed by the MA to the various PIRS categories, but his submissions address five alleged “demonstrable errors” as follows:
“a.     Ability to drive.
b.      Ability to secure alternative employment.
c.      History of termination.
d.      Returning to the workplace- incorrect history by the Assessor.
e.      Carl putting on weight.”
We do not fully understand the substance of these five alleged errors, but it seems to us that the appellant essentially is challenging the assessments with regard to the PIRS categories of travel and employability.
Dealing firstly with the issue of travel, the MA assessed a Class 1, noting:
“No Impairment - He is capable of travelling extended distances, and had a year back driven to Melbourne, 800 km, to see his son. He can drive to and from work, 30 minutes each way, and as part of work commitments, has travelled further away, including to Newcastle (2 hrs each way) and Canberra (2 hours each way).”
In his recent statement and in that of his partner, Ms Karpis, Mr Nolan confirmed that he did not in fact drive to Melbourne: Ms Karpis did, and he was a passenger.
Ms Karpis said: “The reason for me driving is that I do not feel comfortable at all with Carl driving is that he is on medication that can and does at times affect his concentration and his ability to focus properly.”
He would one hopes not even consider driving if he felt his medication intake would affect his driving. In any case, in our view, the level of medication he currently takes would not impede his driving.
Mr Manley said:
“I know that Karl cannot travel far on his own because when he is working for me he
is always driven by a technician if the travel is more than 30 or 40 minutes away, as I know he gets very anxious and nervous and he [has] anxiety attacks.”
The difficulty we have with this evidence is that “driving” does not equate with “travel” in the PIRS table.
Mr Nolan is clearly capable of driving fairly regularly with his work commitments.
He also is able to “travel” extensively as both Ms Karis and Mr Manley acknowledge.
The descriptor for a Class 1 reads: “No deficit or minor deficit attributable to the normal variation in the general population. Can travel to new environments without supervision.”
In our view, the overall evidence supports a finding that Mr Nolan’s ability to travel should properly be rated as a Class 1, and we cannot see any error by the MA in this category.
As regards the issue of employability, the MA rated a Class 2, stating:
“Mild Impairment – He is still working as a trade’s assistant in an air conditioning company and has done this for just over a year. He works full-time hours but notes that his employer is supportive, and he can take half-days or full days off when he needs. This would happen every 1-2 weeks. He experiences anxiety when he is invited to the supervisor’s office. He is working more than 20 hours and close to full-time hours in alternate position.”
The descriptor for a Class 2 reads:
“Mild impairment. Able to work full-time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).”
In our view, Mr Nolan’s circumstances perfectly fit a Class 2 rating.
The appellant’s submission that the MA “failed to consider the difficulties that the appellant is experiencing in the workplace and the real likelihood that he will be unable to maintain gainful employment” is purely speculative, and simply not borne out by the evidence.
The MA clearly noted that Mr Nolan’s “functioning has been suboptimal” consistent with his Class 2 rating and the relevant descriptor.
The issues raised by the appellant such as “ability to secure alternative employment, history of termination and returning to the workplace” are simply not relevant to any assessment of “employability” particularly having regard to Chapter 1.6 of the Guidelines to which we have referred earlier.
The MA also noted in the history he obtained with respect to “present symptoms” that Mr Nolan had put on weight and relied on take-away food. He ascribed a Class 2 in the PIRS category of “selfcare and personal hygiene.”
The descriptor for a Class 2 reads:
“Mild impairment: able to live independently; looks after self adequately although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
This in our view perfectly fits Mr Nolan’s own statement as to his circumstances relating to this category.
Contrary to the appellant’s submissions, there is simply no evidence that the MA interpreted Mr Nolan’s weight gain “as being a good thing.”
It is appropriate at this point to remind the appellant of the principles established in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[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’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”

In our view, there is nothing in the MAC or the MA’s assessments that we regard as “glaringly improbable” nor is there evidence that the MA was unaware of significant factual matters or that an unsupportable reasoning process could be made out.
We also remind the appellant of the principles established in Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 where the Court held:
“(1) Factual errors made by an approved medical specialist as recorded in the Certificate would not usually satisfy the ‘incorrect criteria’ ground of appeal in s327(3)(c) of the Act. (at [41]-[42]);
(2) The applicant’s submission alleges errors in the factual data that the specialist applied to the appropriate criteria. It does not reveal that the doctor failed to address the WorkCover Guides or failed to apply the criteria stipulated in them. (at [43]).”
Mere disagreement with an MA’s assessment is not a proper basis for appeal.
Nothing in the additional evidence which we admitted demonstrates any error by the MA in his assessment of Mr Nolan for the reasons stated above and the authorities to which we have referred.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 June 2021 should be confirmed.

[2021] NSWPICMP 178

23 September 2021