Pengilly v TAFE NSW
[2022] NSWPICMP 21
•16 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pengilly v TAFE NSW [2022] NSWPICMP 21 |
| APPELLANT: | Melissa Pengilly |
| RESPONDENT: | TAFE NSW |
| APPEAL PANEL: | John Wynyard Professor Nicholas Glozier Dr Douglas Andrews |
| DATE OF DECISION: | 16 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeals by the worker against a 1/10th deduction by the Medical Assessor (MA), and by the employer against his evaluation of the Travel category in the Psychiatric Impairment Rating Scale; whether MA had given adequate reasons for his section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) finding in the face of the unanimous view of the qualified specialists for each party: whether the MA had given adequate reasons for finding a class 2 value for the “Travel” category in the face of the unanimous view of the qualified specialists for each party that a class 1 value was appropriate; Held- the reasons given by the MA regarding the section 323 of the 1998 Act deduction included matters of past history that neither specialist was aware of, and his reasoning was adequate; the opinions of other practitioners were not binding on him in any event; Wingfoot Australia Partners Pty Ltd v Kocak; Jones v The Registrar WCC applied; similarly, the unanimous opinions regarding the appropriate class value for the category was not binding where an MA reached a different conclusion; the MA had the advantage of the face-to face video hearing; MA reasons confirmed, but Medical Assessment Certificate revoked to correct mathematical rounding error by the MA. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
There are cross-appeals in this case. Ms Pengilly’s appeal we will refer to as “M1” and the employer’s appeal as “M2.”
On 8 October 2021 the appellant, Melissa Pengilly lodged an Application to Appeal Against the Decision of a Medical Assessor (MA) in M1. The appellant employer lodged its Application to Appeal on 13 October 2021 in M2. The medical dispute was assessed by Dr John J Baker, MA, who issued a Medical Assessment Certificate (MAC) on 14 September 2021.
In both appeals the parties rely on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out in each appeal. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the 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 3 August 2021 an amended referral was made to the MA for an assessment of WPI caused by a psychiatric/psychological disorder which occurred on 1 June 2019.
Ms Pengilly was employed as a Customer Service Officer at the Blacktown TAFE at Western Sydney, where she commenced in 2017.
Ms Pengilly was targeted and bullied in the workplace because of arrangement which she sought to make regarding her middle daughter who was having behavioural problems. She was referred to a psychologist and underwent a variety of psychological treatments.
Ms Pengilly had suffered from pre-existing depression.
The MA found a 15% WPI from which he deducted 1/10th giving a combined table value of 13%. Relevantly, he assessed a class 2 value to the “travel” category of the Psychiatric Impairment Rating Scale (PIRS). We note in passing that the correct calculation should have been 14% (15 - 1.5, rounded), but nothing turns on this mathematical error.
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.
In M1, Ms Pengilly did not seek to be re-examined by an MA who was a member of the Appeal Panel. As the issue was concerned with the question of a pre-existing condition, a re-examination would not have been of assistance.
In M2, the appellant employer also did not seek to have Ms Pengilly re-examined. Similarly, the relevant evidence was before us and no useful purpose would have been served by a re-examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeals are set out, where relevant, in the body of this decision.
SUBMISSIONS
In M1, both parties made written submissions, which have been considered by the Appeal Panel. In M2, the only submissions received were from the appellant employer, which have also been considered.
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 (Vegan) 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.
As indicated above, the appeal in M1 concerned the adequacy of the reasons given by the MA regarding the deduction he made pursuant to s 323 of the 1998 Act. The appeal in M2 alleged that the MA had erred when assessing the “travel” category of the PIRS.
The MAC
M1
Under the heading “Details of any previous or subsequent accidents, injuries or condition”, the MA noted:[1]
“Ms Pengilly reported she had suffered from depression in about 2005 due to a relationship breakdown. She was treated with medication, and she reported no benefit from this and stopped them after about one month.
…
Ms Pengilly had suffered from depression prior to this work-related injury in 2015. She had been treated with Lexapro (Escitalopram) 20mg daily after the birth of one of her children. She stopped this medication after about three weeks and made a full recovery without further medication.”
[1] Appeal papers p 36.
In his summary the MA said:[2]
“In my medical opinion Ms Pengilly did have a pre-existing assessable psychiatric condition prior to her employment with this employer. She had been treated for a Major Depressive Disorder with Lexapro about 7-10 years ago.”
[2] Appeal papers p 38.
In answer to the templated questions at 8e and 8f, the MA found that a proportion of the WPI was due to a previous psychiatric/psychological disorder.
At paragraph 10a[3], the MA noted:
“Ms Pengilly had suffered from a pre-existing psychological condition”.
10b An explanation of my calculations (if applicable)
Ms Pengilly had a pre-existing psychiatric condition. An adjustment was made for a pre-existing condition due to this reason. Ms Pengilly’s pre-existing depressive disorder
increased her vulnerability to future psychiatric conditions. She was asymptomatic prior to the onset of this work-related injury.”
[3] Appeal papers p 39.
The MA reproduced in considerable detail the evidence before him, when he was asked to make brief comments regarding other medical opinions and findings submitted by the parties.
Amongst that evidence he noted the report of Dr Richa Rastogi, psychiatrist, dated 25 November 2020. Dr Rastogi was Ms Pengilly’s medico-legal expert.
The MA noted Dr Rastogi’s opinion that there was no history of a pre-existing condition.
The MA also set out the relevant clinical notes from Ms Pengilly’s local medical centre, Our Medical Home Penrith. Ms Pengilly’s general practitioner (GP), Dr Jonathon Choi, stated:[4]
“10-year history
major depression disorder, cyclical mood
prev trialed citalopram, cannot remember the SSRls, x4 sessions with psychologist
currently teary, decreased libido, depressed, feelings of worthlessness, hopelessness…”
[4] Appeal papers pp 43 and 130.
The MA also referred to an entry by Ms Mmolatau of 14 June 2019:[5]
“patient represented for psychology app.
Was accompanied by her younger son
reports long-standing hx -depression and anxiety, currently nil meds…”
[5] Appeal papers p 44.
The MA also referred to the report of Dr Michael Hong, consultant psychiatrist, who was the respondent’s medico-legal specialist. The MA noted Dr Hong’s opinion that whilst there had been a small bout of post natal depression nine years ago, there was no adjustment for a pre-existing psychiatric disorder.
In considering the question of the appropriate deduction under s 323 the MA said at paragraph 11b:[6]
“(i) Ms Pengilly’s depressive disorder was in full remission prior to the onset of this workrelated injury. Her pre-existing depressive disorder increased her risk of psychiatric conditions in the future.”
[6] Appeal papers p 46.
M2
The MA assessed a class 2 value for the “travel” category of the PIRS. He said, repeating the history he had taken when discussing Ms Pengilly’s activities of daily living:[7]
“Ms Pengilly had stopped driving to unfamiliar locations alone as she would become too anxious whilst driving.
She was able to travel in her local and familiar areas alone. She preferred to have the support of her husband when in public places that were likely to have crowds.”
[7] Appeal papers p 48
SUBMISSIONS
M1
Ms Pengilly
Ms Pengilly submitted that the MA had made inconsistent findings in his MAC. We were referred to that part of the MA’s reasons that reproduced the opinions of other medical practitioners. They were that Dr Rastogi certified a 16% WPI, whilst Dr Hong certified a 7% WPI. As indicated, Dr Rastogi and Dr Hong both certified that there was no pre-existing impairment, or disorder. We were referred to those assessments, and the assessments made by the MA in his Table 2 Certificate at page 14 of the MAC.
Ms Pengilly appears to have mistaken the references to the other medical opinions as illustrating confusion by the MA as to whether he made a deduction or not. Ms Pengilly submitted that “at page 12 the [MA] notes that the adjustment for pre-existing psychological disorder is 0%.” It followed, as we understood the submission, that the MA had in reality stipulated that there was to be no deduction under s 323. The deduction made in the Table 2 Certificate was accordingly said to be inconsistent and, we assume, erroneous.
This may be dealt with shortly.
Ms Pengilly has misread the evidence, and her submission is accordingly misconceived. The MA was clear and explicit as to the amount of and the reasons for the deduction he assessed. The submission is rejected.
Ms Pengilly then referred to the finding by the MA that her pre-existing condition was in “full remission.” It was accordingly “not applicable” for the MA to make a deduction pursuant to s 323, she said.
The references in the evidence to a bout of postnatal depression approximately seven years prior to the injury by the medico-legal experts for both sides of the record mirrored the history taken by the MA, as we understood the submission, and we assume Ms Pengilly meant to contrast the unanimous view of both experts that there should be no deduction pursuant to s 323 with the 1/10th deduction made by the MA.
In the alternative, Ms Pengilly submitted that the MA had not given adequate reasons to justify his assessment pursuant to s 323.
The employer
The respondent replied by referring to well-known authorities as to the principles to be applied in the application of s 323: D’Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, Unreported); Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365; Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen) and Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 25 (Vitaz).
Accordingly, an MA had firstly to decide the extent of the impairment caused by the subject injury, then to decide whether there was a pre-existing condition which contributed to the impairment and, thirdly, to assess what proportion of the impairment was due to the pre-existing condition.
If the evidence demonstrated that there was a pre-existing condition which contributed to the impairment caused by the subject injury, but was asymptomatic at the time employment commenced, the respondent submitted that the cases of Cullen and Vitaz were authority for the proposition that a deduction could still be made.
Such evidence was before the MA, the respondent employer submitted, but had been overlooked by Ms Pengilly, who only referred to the 2015 post-natal depressive episode noted by the two medico-legal experts. The respondent referred to the clinical notes relied on by the MA and submitted that Ms Pengilly had overlooked the totality of the evidence as to her past history.
The respondent submitted that Ms Pengilly had not identified how the MA’s reasons were inadequate.
M2 appeal
We note that Ms Pengilly did not respond to the appellant employer’s submissions in its appeal.
The appellant employer submitted that the MA fell into error by assessing a class 2 value to the category of “travel” contained in the PIRS. The proper valuation ought to have been class 1, it was contended.
The totality of the evidence did not justify the higher value, the appellant employer alleged, because the qualified specialists, Dr Rastogi and Dr Hong both agreed that the appropriate valuation was class 1. Moreover, the history obtained regarding travel by the MA was inconsistent with the findings of the two specialists, and it was significant that the MA did not refer to those reports.
It was further asserted that Ms Pengilly did not say in her statement of 2 June 2021 that she had “stopped driving to unfamiliar locations alone meaning.” We put that submission to one side, as it does not make sense.
The appellant employer conceded that the basis of the MA’s finding was the history he had taken at the face-to-face consultation with Ms Pengilly. It was submitted that therefore:
· there was no evidence as to when Ms Pengilly stopped driving to unfamiliar locations;
· there was no evidence as to whether she had resumed driving to unfamiliar locations, and
· there was no evidence as to whether she had other occasions where she had stopped driving to unfamiliar locations between her assessment by Dr Rastogi and the date of the MAC.
The account given to the MA, it was submitted, was too unreliable to justify the class 2 assessment, given the limited history he obtained, and given the unanimous view of the opposing specialists.
We were referred to Parker v Select Civil Pty Ltd [2018] NSWSC 140 in that regard. The error demonstrated more than a difference of opinion, it was alleged. The MA was required to give more details regarding this change in history and, as we understood the submission, fell into error by not adequately explaining his decision.
DISCUSSION
The M1 appeal
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
It is common ground that Ms Pengilly was asymptomatic when she commenced employment. Accordingly, the MA was correct to apply the provisions of s 323, and not Chapter 11.10 of the Guides.[8]
[8] See Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616.
We have been referred to the relevant authority regarding the application of s 323. The principles are well-established and there is no purpose in rehearsing the dicta in each case. It is settled that a deduction can be made even if the pre-existing condition was asymptomatic at the time, provided it was a contributing factor to the impairment assessed as a result of the subject injury. Reasons are required in circumstances where an alternative conclusion is available on the evidence.
Such an alternative conclusion was plainly available, but the MA chose to disagree, and gave reasons for doing so.
An MA is required to make his assessment on the basis of his training, his experience, his qualifications and his expertise. He has no obligation to follow any expert opinion that is before him, and indeed is required to ignore such an opinion if the application of his judgement differs.[9]
[9] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].
However, where, as in the present case, the MA makes a decision that is contrary to the opinions of the qualified experts on both sides of the record, it is usually preferable, although not mandatory, for him to give adequate reasons for his determination.[10]
[10] Wingfoot at [56].
Although the High Court decision of Wingfoot was concerned with the standard of reasoning applicable to a Medical Appeal Panel, in an earlier case which discussed similar findings in Vegan, which we referred to in these reasons, James J found that there was very little, if any difference in the extent of the obligation to give reasons of an Appeal Panel and of a Medical Assessor, as AMSes are now known.[11]
[11] Jones v The Registrar WCC [2010] NSWSC 481 at [34]; Szalkay v State of New South Wales [2021] NSWPICMP 85 at [55].
In this case, it could not be said that the MA was not aware of the opinions of both Dr Rastogi and Dr Hong that no deduction should be made. His reasons identified the past history he relied on, namely the depression in about 2005, and then the 2015 postnatal episode.
The reasons acknowledged that Ms Pengilly was asymptomatic when she commenced her employment. It is correct that the MA only identified the postnatal episode in his summary, but his reference to the 2005 episode, and his reproduction of the relevant parts of the material before him, demonstrate that he assessed the amount of the deduction incorporating all the evidence that he referred to. Accordingly, we are satisfied that the MA gave adequate reasons for the assessment of the applicable deduction pursuant to s 323.
In the M1 appeal, the MAC is accordingly confirmed.
The M2 appeal
With regard to the appellant employer’s appeal in M2, we note the following evidence:
In his PIRS table, Dr Hong assessed a class I value for the “travel” category. He said:[12]
“Ms Pengilly is independent in travel to unfamiliar areas and does not need a support person. She goes out regularly.”
[12] Appeal papers p 238.
When asked to comment on Ms Pengilly’s ability to travel on a day-to-day basis, Dr Hong replied that he listed her daily activities earlier in his report. However so far as Ms Pengilly’s ability to travel was concerned, he noted:[13]
“I asked Ms Pengilly whether she has contact with her friends and she said she has no contact with her friends at all. I asked her when was the last time she had contact with her friend and she said a week ago she saw a friend – she explained that she went to the catch-up because she had just joined parents and community Association, and they would meet up every four weeks.
She attends to the kids’ activities but not to the level in the past.”
[13] Appeal papers p 234.
Dr Rastogi assessed a class I value for the “travel” category in her PIRS table.[14] She said:
“Nil driving restriction.”
[14] Appeal papers p 96.
Dr Rastogi did not make any comment about the behavioural consequences of Ms Pengilly’s condition on her ability to travel in the body of her report.
In her statement of 2 June 2021, Ms Pengilly said:[15]
“40. Prior to my injury I was a very independent traveller. I lived a busy lifestyle and was constantly travelling to and from places independently.
41. Now I am constantly nervous about the prospect of using public transport. If I know that I will be using public transport, I check the schedule 6 or 7 times the night before because I am so anxious about it and doubt my ability to have accurately planned my trip. Even on the day of travel, I constantly double-check the schedule and trip times because I am convinced that I have made an error. As travelling is such an anxious activity for me now, I rarely travel spontaneously. I only ever travel as a necessity and I always thoroughly plan any travel in advance.”
[15] Appeal papers p 71.
A vocational assessment report was prepared for the insurer by Ms Rebecca Hall dated 9 June 2020.[16] Ms Hall recorded at p 225:
“Ms Pengilly does not wish to drive further than 30 minutes for employment, she has no restrictions related to driving, however advised she would decline roles which required additional driving due to her childcare responsibility.”
[16] Appeal papers p 203.
It can be seen that there were a number of opinions that were inconsistent regarding the functional impairment Ms Pengilly was experiencing because of the consequences of her psychiatric condition. The assessment of this category is defined by Table 11.3 of the Guides, which provides:[17]
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
[17] Guides p 56.
The appellant employer conceded that the MA was relying on the face-to-face video consultation in part at least to evaluate the appropriate class for this category. In Ferguson v State of New South Wales[18] Campbell J approved of an earlier Medical Appeal Decision that in this field of medical science, “… the pre-eminence of the clinical observations cannot be underrated.”
[18] [2017] NSWSC 887.
It can be seen that there was some support in any event for the opinion of the MA in Ms Pengilly’s own statement and in her comment to Dr Hong that she had no contact with her friends at all. The appellant employer, in relying on the unanimous opinion of the opposing medicolegal experts, has made the same error as Ms Pengilly did in the M1 appeal – namely, that the MA had some obligation to explain his reasoning. As we explained by reference to Wingfoot and other cases, such an explanation is not mandatory. Contrary to the submission by the appellant employer, its submission does not raise any more than a mere difference of opinion on a subject about which reasonable minds may differ.
Accordingly, the M2 appeal is also dismissed.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 September 2021 should be confirmed. However, as noted in paragraph 11 the MA made a mathematical error, which in the circumstances is of no consequence. However, we issue a fresh certificate to correct the error.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Baker and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric/ psychological disorder | 1 June 2019 | Chapter 11, pages 60-68 | Chapter 14 | 15% | 1/10th | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
John Wynyard
Member
Professor Nicholas Glozier
Medical Assessor
Dr Douglas Andrews
Medical Assessor
16 February 2022
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