Pogson v Westglass Holdings Pty Ltd ATF Westglass Unit Trust
[2024] NSWPICMP 61
•9 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pogson v WESTGLASS HOLDINGS PTY LTD ATF Westglass Unit Trust [2024] NSWPICMP 61 |
| APPELLANT: | Suzanne Gail Pogson |
| RESPONDENT: | Westglass Holdings Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 9 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the Psychiatric Impairment Rating Scale; appeal in three categories, based on the difference between the Medical Assessment Certificate (MAC) and a doctor qualified for the worker; State of New South Wales v Kaur and Ferguson v State of New South Wales referenced; assessment on the day of the examination; Held – mac confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 November 2023 Suzanne Pogson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 October 2023.
Ms Pogson relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, the ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Pogson was employed by Westglass Holdings Pty Ltd (Westglass) as an office manager. She suffered a psychological injury in the course of her employment which is deemed to have occurred on 19 April 2021.
The Medical Assessor assessed 7% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS), placing her in class 2 for self care and personal hygiene, travel, social functioning, and concentration, persistence and pace. He placed her in class 3 for social and recreational activities and employability. The Medical Assessor did not make any deduction under s 323 of the 1998 Act. He added 1% for the effect of treatment.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Pogson to undergo a further medical examination because the assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement and the MAC does not disclose error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Pogson submitted that the Medical Assessor erred in his assessment of self care and personal hygiene, quoting the assessment made by Dr Nagesh, who saw her at the request of her solicitors and reported on 19 April 2022. She said that her evidence is that she does not prepare her own meals and misses meals and that, without the support of a family member, it is arguable that she would not have a minimum level of hygiene and nutrition.
With respect to concentration, persistence and pace, Ms Pogson again, quoted Dr Nagesh’s report in which he assessed moderate impairment. She said that she would not be able to work at a faster pace, is unable to concentrate for more than 15 minutes and has to take regular breaks. She said that the Medical Assessor did not take into account that if she had to work faster or for a less flexible employer “her impairment in concentration would be more consequential”.
Ms Pogson submitted that the Medical Assessor erred with respect to employability, saying that while she can manage her present workload, her attendance would be erratic if she attempted to return to an office.
In reply, Westglass said that the Medical Assessor “accurately and validly assessed his findings” and provided thorough clinical reasoning to address the variance in his findings compared to those of Dr Nagesh. Westglass said that the history Ms Pogson provided “has evidently differed between the assessments” of Dr Nagesh, Dr Potter and the Medical Assessor.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton,[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
The Medical Assessor was required to assess Ms Pogson as she presented on the day of the examination.[3] The medical evidence described below shows improvement in her condition over time so that it might be expected that there would be a reduction in her impairment between the time of Dr Nagesh’s examination in April 2022 and the examination by the Medical Assessor in October 2023.
[3] Guidelines paragraph 1.6.
Ms Pogson’s submissions focus on how the assessment in the MAC differs from that of Dr Nagesh. The task of the Medical Assessor was to make his own assessment and the assessments relied on by the parties do not have primacy. In State of New South Wales (NSW Department of Education) v Kaur[4] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[4] [2016] NSWSC 346.
In Ferguson v State of New South Wales[5] (Ferguson) Campbell J said:
“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.”
The MAC
[5] [2017] NSWSC 887 at [25].
The Medical Assessor described Ms Pogson’s demographic details and said:
“Ms Pogson highlighted that she works “part-time with a fencing company and also helping my husband. I work 23.5 hours per week”. Ms Pogson told me that she works from home. She highlighted that her work hours are very flexible. She told me she receives much support from her husband and her other employer in helping her manage her work commitment.
…
Ms Pogson told me she stopped working in April 2021 due to mental health issues. She was unable to return to work till around August 2021. Ms Pogson told me that with ongoing treatment and rehabilitation, she was able to return to work in August 2021. She has since gradually increased her work hours.”
Under the heading Psychiatric History, the Medical Assessor described the injury and said:
“On further clarification, it is evident Ms Pogson started experiencing a mix of anxiety and depressive symptoms since she became aware of the workplace incident in April 2021. Her description indicated she was experiencing panic attacks as she thought about the incident, especially derogatory names used for her. She would often feel distressed. Ms Pogson started experiencing sleep disturbance. She also experienced significant social anxiety, and “ I stopped leaving my place”. Ms Pogson told me that she would experience panic attacks if she saw her previous work colleague or the car associated with the business.”
The Medical Assessor diagnosed the onset of adjustment disorder with mixed anxiety and depressed mood from April 2021 and recorded:
“Ms Pogson told me that she continued to comply with psychological therapy sessions. She told me that the therapy sessions helped to improve her insight and learn psychological techniques to manage her stressors. She said, ‘The psychologist advised me to attend the Change Room Program. It helped me return to work’. In addition to psychological therapy, Ms Pogson continued to use essential oils, which helped her to manage anxiety symptoms.
Ms Pogson told me that she received help from the rehabilitation team. She was able to return to work, ‘I could take on work where I could be flexible and work from home’. Ms Pogson gradually increased her work hours over the course of 2021-2022.
Ms Pogson highlighted experiencing gradual improvement in her mental health and general functioning over the above period.”
The Medical Assessor considered Ms Pogson’s presentation over the last six months and said:
“Ms Pogson denied receiving input from a psychiatrist. She has avoided trial of any psychotropic treatment. Ms Pogson denied relying on Valium.
On further clarification, it is evident that Ms Pogson has experienced gradual improvement in her mental health, although she continues to struggle with significant social anxiety and low self-confidence. She tends to avoid crowds or any unfamiliar situations/places.”
The Medical Assessor described Ms Pogson’s history and his mental state examination. He said that he was “not able to elicit any significant cognitive deficits as per the rudimentary cognitive assessment.” He considered the reports of Dr Nagesh, Ms Pogson’s psychologist and Dr Potter, qualified for Westglass.
In summarising his opinion, the Medical Assessor noted that Ms Pogson “responded well to the mental health and rehabilitation input”. She was able to return to work part time in
August 2021. The Medical Assessor diagnosed adjustment disorder with mixed anxiety and depressed mood and social anxiety disorder. He assessed 8% WPI, as set out above.
Self care and personal hygiene
The Medical Assessor said:
“Ms Pogson is taking a shower every night. She told me that her husband has to remind her as she sometimes tries to avoid taking a shower. She does struggle with her motivation and energy to attend to her activities of daily living and household chores. She told me that her husband is cooking for her. She does attend to some household chores ‘I keep putting it off till it gets necessary’.”
In Jenkins v Ambulance Service of NSW[6] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[6] [2015] NSWSC 633 at [65].
With respect to self-care and personal hygiene, the first example in each class highlights the extent to which a worker is able to live independently.
Assessment in class 2 connotes a mild impairment. The examples are:
“Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
Class 3 is the appropriate assessment for a moderate impairment and the examples are:
“Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
Ms Pogson submitted that the assessment should be in class 3, as Dr Nagesh had assessed. Dr Nagesh’s examination was in April 2022 and by the time Dr Potter assessed Ms Pogson for Westglass in February 2023 she admitted to some improvement in her condition. The Medical Assessor also noted that Ms Pogson had experienced some improvement.
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[7]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[7] [2018] NSWSC 140 at [70]-[71].
Ms Pogson submitted that the Medical Assessor erred in not taking into account the fact that she is not preparing her own meals and misses meals. The Medical Assessor took a history that Ms Pogson’s husband is cooking for her and took that into account in assessing her in class 2. The Medical Assessor applied the Guidelines appropriately. Though the assessment is one about which reasonable minds may differ, assessment in class 2 was open to the Medical Assessor in the exercise of his clinical judgement. It does not disclose error.
Concentration, persistence and pace
The Medical Assessor said:
“Ms Pogson told me that she struggles with her concentration. She told me ‘I have to take notes for everything’. She is able to manage her work, taking breaks at regular intervals. She is able to manage her work commitments as her employer is flexible. She told me that she is working at a much slower pace compared to before April 2021.”
It is important to remember that the examination provided the Medical Assessor with an opportunity to form his own view about Ms Pogson’s ability to concentrate, persist with cognitively demanding tasks, and the pace of her cognitive processes. He said that he did not “elicit any significant cognitive deficits.”
While Ms Pogson’s ability to concentrate is most frequently tested in her work, the assessment of concentration, persistence and pace is separate to her ability to work because conduct must be assigned to the appropriate scale.[8] Ms Pogson’s arguments in support of a higher assessment turn only on what might be the case if she was working for a less flexible employer. What might be the case in other circumstances is not relevant to assessment by a Medical Assessor on the day of the examination.
[8] Ballas v Department of Education [2020] NSWCA 86.
The history taken by the Medical Assessor is consistent with assessment in class 2 for which the examples in the PIRS are:
“Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
The assessment by the Medical Assessor was open to him.
Employability
The Medical Assessor assessed Ms Pogson in class 3 because:
“Ms Pogson told me that she is working 23.5 hr/week. She does not feel she can increase her work commitments due to ongoing mental health stressors. She does not feel she can take on managerial responsibilities similar to her previous role. She is able to manage her flexible work commitments working from home.”
The examples for assessment in class 3 are:
“Moderate impairment: Cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”
Those examples align neatly with Ms Pogson’s current situation. She returned to employment only four months after the injury, albeit with a sympathetic employer and in an administrative rather than managerial role.
Ms Pogson submitted that her future employment is hindered by her injury and that if she returned to work in an office her attendance would be erratic. That submission fails to take into account the obligation on the Medical Assessor to assess Ms Pogson as she presented on the day of the examination. Paragraph 1.35 of the Guidelines reinforces the need to make a contemporaneous rather than prospective assessment:
“Similarly if a medical assessor forms the opinion that the claimant’s condition is stable for the next year, but that it may deteriorate in the long term, the assessor should make no allowance for this deterioration.”
For these reasons, we have determined that the MAC issued on 11 October 2023 should be confirmed.
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