Poole v State of New South Wales (NSW Police Force)
[2023] NSWPICMP 300
•29 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Poole v State of New South Wales (NSW Police Force) [2023] NSWPICMP 300 |
| APPELLANT: | Justin Poole |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr Michael Hong |
| MEDICAL ASSESSOR: | Dr Graham Blom |
| DATE OF DECISION: | 29 June 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) erred with respect to his rating of the appellant’s impairment in psychiatric impairment rating scale (PIRS) category of social functioning; Held – it was open to the MA to make the rating he did based on evidence before him and for the reasons he explained; Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 April 2023 Justin Poole, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 March 2023.
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):
· 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 (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 s328 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
The appellant was employed as a police officer with the New South Wales Police Force (the respondent). He commenced at the Police Academy Goulburn in May 2001 and was attested as a probationary constable on 5 May 2002. He last worked with the respondent on 13 February 2019. During the period of his employment he was exposed to numerous traumatic incidents and as a consequence suffered a psychological injury.
The appellant’s solicitors arranged for the appellant to be examined on 24 April 2020 by consultant psychiatrist Dr Selwyn Smith who provided the appellant’s solicitors a report on 29 April 2020 wherein Dr Smith advised that he assessed the appellant had 22% whole person impairment (WPI) from his injury. Relying on that report, the appellant’s solicitors wrote to the respondent’s insurer on 5 May 2020 advising it that the appellant claimed compensation of $41,250 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 24% WPI and compensation of $35,000 under s 67 of the 1987 Act for pain and suffering.
The respondent’s solicitors thereupon organised for consultant psychiatrist Dr Ashwinder Anand to examine the appellant on 15 June 2020, who provided a report on that day to the respondent’s solicitors in which he advised he assessed the appellant had 19% WPI from his injury.
On 5 August 2020 the respondent’s solicitors wrote to the appellant, care of his solicitors, advising him that their client offered to pay him compensation of $28,600 under s 66 of the 1987 Act for 19% WPI and $10,000 as compensation under s 67 of the 1987 Act. It attached to its correspondence Dr Anand’s report of 15 June 2020.
It is apparent that the appellant did not accept the respondent’s offer because, on 4 September 2020, he initiated proceedings in the Workers Compensation Commission, being the predecessor to the Personal Injury Commission (Commission), seeking determination by the Commission of his claims for compensation.
On 6 October 2020 a delegate of the Registrar of the Workers Compensation Commission referred the matter to the Medical Assessor, then known as an Approved Medical Assessor, to assess the degree of permanent impairment of the appellant from his injury.[1] On 20 October 2020 the Medical Assessor issued a Medical Assessment Certificate in which he certified that the appellant had not achieved maximum medical improvement. Consequently the appellant’s permanent impairment was not fully ascertainable. The Medical Assessor declined to assess the appellant’s WPI, consistent with s 323(4) of the 1998 Act.
[1] The Appeal Panel notes that with the establishment of the Personal Injury Commission on 1 March 2021 Approved Medical Specialists became known as Medical Assessors.
On 15 March 2023 the Medical Assessor again examined the appellant by Microsoft Teams. As indicated above the Medical Assessor issued a MAC on 16 March 2023. In that he certified the appellant had achieved maximum medical improvement. He certified that he assessed the appellant had 9% WPI from his injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. This is for two reasons. Firstly, the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment. Secondly, absent the Appeal Panel finding error in the MAC, the Appeal Panel’s power to examine the appellant is not enlivened.[2]
[2] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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 appellant’s appeal relates to the Medical Assessor’s rating of his impairment in the Psychiatric Impairment Rating Scale (PIRS) category of Social Functioning. Relevant to that matter, the history the Medical Assessor obtained included that the appellant has been with his wife since 1995 and married to her for 21 years. The Medical Assessor recorded that the appellant and his wife a son who is 13 years of age and currently at high school. The Medical Assessor also noted that the appellant had a social circle both within the police force and with friends. His social circle included a long term friend from the area in which the appellant grew up. The Medical Assessor noted that the appellant had ongoing contact with his parents and with his three surviving younger brothers. The Medical Assessor recorded that he saw few people apart from his wife and his son. The Medical Assessor recorded that the appellant described a reasonable relationship with his family and that he enjoyed spending time with his son and had a good relationship with him. The Medical Assessor recorded that he and his wife and son recently drove to Wodonga to visit a friend of the appellant from his school days but the appellant had a row with his friend and had to drive back at night.
The Medical Assessor observed, when comparing his assessment of the appellant’s permanent impairment with the assessments that Dr Smith and Dr Anand had each made, that those doctors assessments conflicted with respect to their ratings of the appellant’s impairment with social functioning. The Medical Assessor noted that since those doctors examined the appellant, the appellant’s condition had stabilised somewhat. The Medical Assessor noted that the appellant still experienced strain within his family, as Dr Smith and Dr Anand had noted in their respective reports three years earlier, but the Medical Assessor also observed that the appellant reported a good relationship with his son and ongoing contact and support with his family but a loss of friendships.
The Medical Assessor rated the appellant’s impairment in Social Functioning as Class 2 that is a mild impairment. The reason he provided in the PIRS rating form attached to the MAC was that “there continues to be strain within the family although he reports a good relationship with his son, ongoing contact and support with his own family, although a loss of most of his friendships”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that he had endured a dissolution of the majority of his relationships. The appellant submitted that is more than “losing just a few friendships”. The appellant submitted that there was ongoing strain between him and his wife and that “he tends to keep himself to himself”. The appellant submitted that the Medical Assessor erred by not rating his impairment in Social Functioning as Class 3, that is a moderate impairment. The appellant further submitted that the Medical Assessor incorrectly applied the Guidelines.
In reply, the respondent submitted that the Medical Assessor obtained detailed evidence from the appellant when conducting the assessment. The respondent submitted that there was no evidence of domestic violence or separation from any family member or evidence of his relationships with his family being severely strained. The respondent submitted that the Medical Assessor appropriately and correctly assessed the appellant’s permanent impairment in the category of Social Functioning as being mild.
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.
An assessment of a worker’s impairment resulting from a psychiatric injury is, in accordance with clauses 11.11 and 11.12 of the Guidelines, done by reference to the effect the worker’s injury has in six categories of activity and function. Together these comprise the PIRS. For each category a Medical Assessor must classify a worker’s impairment as either no impairment, minor impairment, mild impairment, moderate impairment, severe impairment or total impairment. A Medical Assessor is required to allocate a score for each category with 1 being no impairment through to 5 which is total impairment.
Within the Guidelines there is a table for each PIRS category that provide examples of how a worker’s function may be affected by the worker’s injury that are intended to assist a Medical Assessor rating a worker’s impairment in the particular PIRS category that is the subject of the table. The examples provided in Table 11.4, which relates to the PIRS category of Social Functioning, for a mild impairment are:
“Existing relationships if strained. Tensions and arguments with partner or close family members, loss of friendships.”
The examples provided for a Class 3 impairment, that is a moderate impairment, are:
“Previously established relationships severely strained, evident by periods of separation or domestic violence. Spouse, relatives or community services looking after children”.
Clause 11.12 of the Guidelines stress that “the examples of activities are examples only” and hence the examples are intended only to provide guidance to a Medical Assessor as to how to rate a worker’s impairment in the relevant category. They are not prescriptive. What is important is whether there is no deficit, mild impairment, moderate impairment etc. In Jenkins v Ambulance Service of NSW[3] Garling J held:
“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.”
[3] [2015] NSWSC 633 (Jenkins) at [65].
To establish error, the Appeal Panel must be satisfied that the Medical Assessor has incorrectly rated the worker’s impairment in the particular category and that it was not open to the Medical Assessor to make the rating he or she did.[4] In other words the Appeal Panel must consider that the Medical Assessor’s evaluation of the material before the Medical Assessor, which includes a history the Medical Assessor obtained, cannot support the Medical Assessor’s rating.
[4] Jenkins at [52]-[57]; Ferguson v State of NSW [2017] NSWSC 887 at [[23]-24]; Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [68]-[71].
In this matter the Medical Assessor obtained a history at the time of assessing the appellant’s impairment that included, with respect to the appellant’s ability in social functioning, that he maintained ongoing contact and support with his family and maintained a good relationship with his son. The Medical Assessor noted that there was strain in the appellant’s family and that the appellant had lost most of his friendships. The Medical Assessor was entitled to rely on that history when assessing the appellant’s impairment in the category of Social Functioning.
In the Appeal Panel’s view, the Medical Assessor’s rating of the appellant’s impairment in the category of Social Functioning better accord with the examples provided for a Class 2 impairment, rather than a Class 3 impairment. As said, those examples are only intended to guide a Medical Assessor and do not prescribe what the Medical Assessor was required to do, but they nevertheless support the Medical Assessor’s assessment. Given what the Appeal Panel considers is a close correlation between the examples for a Class 2 rating and the appellant’s circumstances, the Appeal Panel cannot say that it was not open to the Medical Assessor, based on the history the Medical Assessor obtained, to rate the appellant’s impairment as he did. The Appeal Panel can discern no error in in the exercise by the Medical Assessor of his clinical judgment in rating the appellant’s impairment in the category of Social Functioning. His assessment is supported by the history he obtained and adequately explained.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 March 2023 should be confirmed.
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