Parkinson v Avondale University College Ltd
[2024] NSWPICMP 394
•20 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Parkinson v Avondale University College Ltd [2024] NSWPICMP 394 |
| APPELLANT: | Carolyn Parkinson |
| RESPONDENT: | Avondale University College Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 20 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal by claimant from 8% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) failed to apply Ballas v Department of Education (State of NSW) (Ballas); whether social and recreational activities assessment vitiated by reference to travel; whether category excludes participation with close intimates; Held – Ballas passages relied on were obiter, the ratio decidendi concerning the decision of the delegate; Ballas and Lancaster v Foxtel Management (Lancaster) considered; Lancaster interpretation adopted; no logical reason for excluding participation with close intimates from participating in activities; relevant fact being such participation itself; there is no error in an incidental reference to another category such as travel when describing the activities performed pursuant to this category; claimant an art lover who went to galleries and art classes; travel inevitable concomitant. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 November 2023 the appellant, Carolyn Parkinson, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 October 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 6 October 2023 an amended referral was made for an assessment of WPI caused by a psychiatric/psychological injury which occurred on a deemed date of 5 February 2021.
Ms Parkinson was employed as an administrative assistant at Avondale University College when she suffered her injury, which was caused by bullying and harassment by a superior.
She ceased work on 28 August 2020.
She continues to take anti-anxiety and anti-depressant medication and is treated by her psychologist whom she sees every three weeks or so.
The Medical Assessor assessed 8% 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.
The appellant did not seek to be re-examined and as the issue concerned the interpretation of legal authority, a re-examination would not have been of assistance.
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.
Ms Parkinson challenged the assessment of a class 2 rating for the category of social and recreational activities within the Psychiatric Impairment Rating Scale (PIRS).
THE MAC
The Medical Assessor noted Ms Parkinson’s previous involvement with the church. He said:[1]
“Ms Parkinson was previously very involved with her church community and had a strong religious faith. She previously would pray for up to 2 hours per day, though this is now very intermittent. Her faith has been shaken during this period of ill-health which upsets her.
During the day Ms Parkinson will do some housework and may do some cooking. She has recently acquired a cat and she enjoys looking after this. She usually goes to the shops once per week which she will do on her own, though if she is going to a larger shopping centre she will go with her husband. She goes with her husband for a coffee in a café once every week or two and will go out for a meal when visiting her sons in Kempsey every two months or so. Ms Parkinson has a strong interest in art which she has found very helpful for her during this period of ill-health. She has a home art studio that she can spend several hours in, and she attends in art class on one day per week. Ms Parkinson and her husband recently drove to Melbourne to visits elderly relatives. While there they visited the art gallery in Melbourne as well as in Ballarat.
Ms Parkinson has recently started a work trial. This involves working at an art studio for two hours at a time on two days per week. She has been doing this for the last two weeks and currently intends to continue with this. She gets some pleasure from spending time with other people in this environment.”
[1] Appeal papers pages 36-37.
The Medical Assessor’s reasons within his Table 11.8 PIRS rating form will be discussed below.
SUBMISSIONS
The appellant
Ms Parkinson’s submissions were prepared by Ms Eraine Grotte of counsel. Ms Grotte referred to Ballas v Department of Education (State of NSW)[2] in submitting that the Medical Assessor had fallen into error in assessing the social and recreational activities category in the PIRS.
[2] [2020] NSWCA 86.
Ms Grotte submitted that the references by the Medical Assessor to Ms Parkinson’s going to the local shops, walking while waiting for a prescription, as well as meeting with her exercise physiologist and travelling to Melbourne, were irrelevant considerations of the type identified in Ballas. Those matters were relevant to the travel category rather than the social and recreational activities category. They were consistent with the Medical Assessor’s class 2 rating for the travel category, as Ms Parkinson was able to drive herself in the local area and had travelled longer distance with her husband.
Ms Grotte referred to the Medical Assessor’s inclusion within the social and recreational category of Ms Parkinson going out for coffee with her husband and to dinner with her sons. Ms Grotte submitted that these matters were also irrelevant and were more properly covered in the social functioning category of the PIRS, which she argued was concerned with relationships.
Ms Grotte argued that the social and recreational activities category was concerned with the behavioural consequences of the injury on the appellant worker’s ability to “participate in social activities”, that is, socialising with other people at public events such as clubs or associations. Ms Grotte submitted that such “other people” excluded her partner and her sons, as they were more like support persons, being her close intimates.
Ms Grotte referred to the evidence that Ms Parkinson’s social and recreational activities prior to her injuries centred on her Church and that since the injury she had lost this involvement.
Ms Grotte relied on the report of Dr Khan of 16 January 2023 who recorded such a history and noted that Ms Parkinson struggled to engage in social and recreational activities “without prompting and her husband has pushed her to attend activities with her family members.”
Ms Grotte argued that attending art classes one day per week could not be viewed as socialising. She submitted that such activity was a form of therapy. Ms Grotte noted that Ms Parkinson had an interest in art and had a home studio where she spent several hours on her own.
Ms Grotte also noted that Ms Parkinson was trialling work in an art studio. This, it was submitted, was not relevant to the category of social and recreational activities. The category was defined, we understood Ms Grotte to contend, by whether a claimant was “able to participate socially in public with other people, not her family members.”
Avondale University College Limited (the respondent)
With regard to the decision in Ballas, the respondent submitted that comments made by Bell P and Payne JA were with reference to the decision of the Delegate and her erroneous statement that the categorisation of the appropriate category within the PIRS was within the clinical discretion of the Medical Assessor.
The respondent submitted that the relevant circumstances in Ballas were where the Medical Assessor had applied a class 2 rating for social and recreational activities on the basis that the worker reported being able to travel to the local RSL Club on her own.
Ms Parkinson’s activities, in contrast, showed that she could attend a recreational event such as an art class without needing a support person. The appellant had failed to comprehend that an assessment within this category as set out in Table 11.2 of the Guides required a consideration of what activities the appellant engaged in for the purpose of amusement and enjoyment, and was not limited to socialisation. This the Medical Assessor had done, it was submitted. He was also obliged to consider a claimant’s social engagement, which the Medical Assessor had also complied with by virtue of her going out for coffee and meals with her husband and sons.
The respondent submitted that the appellant had mischaracterised the Medical Assessor’s justification for applying a class 2 rating by her reference to “irrelevant information”, particularly that the activities described in this category were more appropriate to the travel category.
The respondent submitted that the mere fact that the social and recreational activities described by the Medical Assessor also involved travel, in the context of Ms Parkinson’s activities, did not constitute demonstrable error.
The respondent submitted there was no basis for the appellant’s submission that the assessment of social and recreational activities excluded those with family members, and that the appellant had incorrectly characterised the contents of Table 11.2. The descriptors in each class thereof provided that a Medical Assessor was to consider how the worker socialises and engages in activities with family and friends, as well as others.
A class 2 rating was open to the Medical Assessor as there was “clear information and material” to support that rating, the respondent argued. It particularly referred to Ms Parkinson’s attendance at art class once per week without a support person in that regard.
We note the extensive reference to settled authority by the respondent.
DISCUSSION
The PIRS
The appellant employer relied upon the authority of Ballas to establish error on behalf of the Medical Assessor in the assessment of Parkinson’s impairment under the category of Social and Recreational activities within the PIRS.
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[3] 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.”
[3] Guides page 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[4]
[4] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[5] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (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[6]. 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].”
[5] Cited by the appellant employer above.
[6] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[7] 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])…..”
[7] [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.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[8] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[8] [2022] NSWSC 929.
Social and Recreational Activities
The classes in this category have the following descriptors:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4 Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5 Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”
In assessing a class 3 rating, the Medical Assessor said:[9]
“Ms Parkinson describes a general reduction in social and recreational activities. She goes out for a coffee with her husband every week or two and every few months will go out for dinner with her sons when she visits them in Kempsey. She attends an art class each week which she enjoys though no longer attends church or participates in the church community. Ms Parkinson is able to go to local shops on her own and occasionally will go for a short walk while doing things such as waiting for a prescription. She has recently started meeting with an exercise physiologist once
per week. She recently visited Melbourne and Ballarat with her husband and went to the art galleries in both cities.”
[9] Appeal papers page 44.
Ms Grotte submitted that the Medical Assessor had erred by including irrelevant considerations in his assessment of the social and recreational category of the PIRS, citing the following passage from Ballas:
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94. Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
Paragraph 94 was considered by Basten AJ, sitting in the Common Law Division of the Supreme Court, in Lancaster.[10] His Honour noted that the facts in Ballas concerned a decision of the delegate who declined to refer that appeal to a Medical Appeal Panel. At [71] His Honour said:
“….The use of the phrase ‘taking into account an irrelevant consideration’ might suggest an error of a kind which would be described as jurisdictional error for the purposes of judicial review, and hence applicable in the present case. However, the Court in Ballas did not say that the delegate was required as a matter of law to identify a jurisdictional error on the part of the medical specialist. It was sufficient (as the Court held) that the delegate had failed, through a misunderstanding of her proper function, to accept an argument that was capable of amounting to ‘demonstrable error’ on the part of the medical specialist.”
[10] Op cit. (Note: Op cit. is not to be used, full citation/references to be used each time.)
We concur, with respect, with His Honour’s finding. The ratio decidendi of Ballas is that the delegate had erred in failing pursuant to s 327(4) of the 1998 Act to find that at least one of the grounds for appeal had been made out. Basten JA had noted at [70] that the plaintiff contended in her appeal that the Approved Medical Specialist (as Medical Assessors were then called) had wrongly taken into account, in assessing the social and recreational activities category, “a solitary activity which might have been relevant to other areas of impairment, but did not bear upon that identified as social and recreational activities.” His Honour said at [70]:
“….The Court accepted that submission, concluding that the delegate did not properly consider whether that contention was capable of constituting a ‘demonstrable error’…..However, the Court then proceeded, in a passage on which the plaintiff relies, making the following observations:…”
His Honour then extracted [94] from Ballas, which we have reproduced above. From [72] he said:
“72. The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor ‘social and recreational activities’ if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.
73. Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas…..”
We again concur, with respect with this opinion. The interpretation of the dicta advanced by Ms Grotte must accordingly be rejected, and the passages she relied on must be regarded as obiter.
We note further the comments of a Medical Appeal Panel in Hennessy v Northcott Supported Living Ltd:[11]
“The Appeal Panel does [not][12] consider that the examples listed within Table 11.2, which is the relevant table for social and recreational activities, are to be read such that a Medical Assessor when rating a worker’s impairment in social and recreational activity is limited to considering only activity in which a worker engages with others. Recreational activities such as surfing, running, playing a computer game, walking along a bush track, star gazing even, are some of numerous recreational activities in which someone may engage without the interaction of others. Such activity is rightfully considered under table 11.2.”[13]
[11] [2023] NSWPICMP 581.
[12] We assume that there was a typographical error and have inserted the “[not]” to enable the passage to be properly understood.
[13] The Panel cited Lancaster as authority for this statement.
There is no reason (indeed it would be difficult to achieve) for there to be a strict separation of the individual activities from inclusion in one category because they are apt to another category as well. For instance, it is an integral part of the social and recreational activities of being an art lover, which involves visiting art galleries and art school, that there be travel involved. Such travel is an essential concomitant with the exercise of these activities.
We note that Ms Grotte did not cite any authority for her proposition that activities with Ms Parkinson’s partner or sons were not appropriate to the social and recreational activities category because they were “like support persons” and her “close intimates”. There is no logical reason why a person should not attend social and recreational activities in company with close intimates – indeed such an activity may well often be experienced in the company of partners or family.
Ms Grotte contended that the activity of attending art classes was not relevant to the category, as it was a form of therapy. As noted above, the descriptors for class 1 in this category describe a person who regularly participates in social activities that are age, sex and culturally appropriate. A person of Ms Parkinson’s age and with her background of employment in a University College would certainly qualify with her participation in the art world. Certainly Ms Parkinson is involved in those activities in her home studio and in the local art gallery and indeed in travelling to Melbourne and taking the time to go to art galleries there. That her participation might also be therapeutic is neither here nor there. The relevant fact is that it is Ms Parkinson is active in this recreational behaviour. That she spends hours in her home studio on her own, is consistent with her being able to do so without a support person.
There is no evidence that Ms Parkinson is not actively involved in her hobby, nor that she rarely goes to such events, which are features in the descriptors for a class 3 rating. The Medical Assessor noted that Ms Parkinson is no longer involved with her church community and a general reduction in her activities. He appropriately reflected this in assessing a mild, class 2 rating.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 October 2023 should be confirmed.
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