Poulis v Deicorp Pty Ltd
[2024] NSWPICMP 830
•5 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Poulis v Deicorp Pty Ltd [2024] NSWPICMP 830 |
| APPELLANT: | Janice Poulis |
| RESPONDENT: | Deicorp Pty Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 5 December 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by a claimant from assessment of 6% for psychiatric injury; whether the fresh evidence from the claimant should be admitted; whether error established in four categories of the psychiatric impairment rating scale; Held – the claimant did perhaps not appreciate that a fresh statement subsequent to the Medical Assessment Certificate (MAC) was not automatically admissible and no submissions were made in that regard; respondent objected and the fresh statement was rejected; section 328(3) considered, Lukacevic v Coates Hire Operations Pty Limited considered and applied; fresh statement argumentative and proposed degree of incompetence by the MA that was not plausible; Jones v The Registrar WCC and Bojko v ICM Property Service Pty Ltd & Ors considered and presumption of regularity applied; fresh statement also conceded that the claimant did perform some of the functions, but argument as to motives dismissed as being irrelevant; claimant's reliance on her qualified expert rejected; Western Sydney Health District v Chan and Wingfoot Australia Pty Ltd v Kocak considered and applied; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 August 2024 Janice Poulis (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 July 2024.
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):
· 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, 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 17 May 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by psychological/psychiatric disorder which occurred on a deemed date of 15 July 2020.
Ms Poulis was employed as a sales representative and had worked for Deicorp Pty Limited (the respondent) between 8 November 2019 and 15 July 2020. She was employed as a real estate agent and developed her psychological condition when she was dismissed on performance grounds.
The Medical Assessor certified a WPI of 6%.
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. Such an opportunity was requested by the appellant but as we found no error in the MAC, no re-examination was necessary.
Fresh evidence
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The appellant seeks to admit a further statement made by her dated 13 August 2024.
Ms Poulis alleged that after reviewing the MAC she thought the Medical Assessor had made some errors in the history he took. She helpfully extracted what the Medical Assessor had said, and explained the nature of the errors she alleged. There were seven such errors claimed, the first being at page 4 of the MAC:[1]
“In Brisbane, she has two close friends. They enjoy going to cafés and out to lunch or a pub for meals. She occasionally goes to the beach, walks in a dog park, attends movies, or goes on day trips. For example, she has recently been to Tamborine Mountain.”
[1] Appeal papers page 34.
Ms Poulis claimed that she recalled telling the Medical Assessor that she had two close friends, but she said that she “raincheck on them all the time.” She claimed that she said the friends “go out, but I don’t.” She explained that her friends tried to include her “but I don’t go and they understand my predicament and situation.”
Ms Poulis denied saying anything about day trips. She remembered being asked how she would keep herself busy during the weeks. She said:
“I said I may go to the beach in off peak areas, but not regularly though, I don't like leaving the house. I like being near the water as it helps me decompress. I also might go to take my dog for a walk, hit two birds with one stone, or I may from time to time take my dogs to the dog park when I know no one is there if I have not left the home all week and I said my friends lives in Tamborine, not that we or I go up there.”
The second allegedly inaccurate statement by the Medical Assessor related to Ms Poulis’ driving activities. The Medical Assessor said:[2]
“She is comfortable in the car and has no problems travelling independently locally. She regularly drives her daughter to her various activities. She also travels further afield and has described trips to Southbank, the Gold Coast, and Noosa. Although she hasn’t visited Adelaide to see her parents since 2020, she plans a trip later this year.”
[2] Appeal papers page 34.
Ms Poulis claimed that she did in fact drive where she had no choice. She explained that the car was “a safe place”, but that she did not like driving or staying away too far from home, as it made her angry, agitated and frustrated.
As to the planned trip to Adelaide, Ms Poulis said that she hated Adelaide, which she “said very clearly like I do to anyone who asked.” She said that she had been “just saying” that she may need to go soon, as in the Christmas holidays or next year, as she had furniture in a storage shed and was paying a monthly fee, which she hated doing. Having said that, she then said that there was no plan, and she did not say that there was a plan.
The third passage extracted from the MAC was:[3]
“Ms Poulis spends 1-2 hours on social media and watches television daily. She can engage with documentaries, crime shows, and House Hunters. She enjoys listening to music. She reads less and only on the Internet. Her hobby is crocheting and knitting. She has just finished making a blanket for her daughter and is starting one for her son.”
[3] Appeal papers page 34.
Ms Poulis admitted that she had made that statement but sought to qualify it by saying that she had estimated “maybe” two hours. She explained that she did not watch television during the day, and that she did not remember using the words “music videos.” She said that she told the Medical Assessor that she was “struggling to explain,” and that it was background music.
She admitted that she crocheted. She described it as an outlet to calm her nerves, her anxiety and her agitation. She also said that crochet kept her distracted from “social media junk” and kept her off the phone. Her crocheting was, she said, “a calming tool” or “a stress ball”.
The remaining allegations related to the entries made by the Medical Assessor in the Psychiatric Impairment Rating Scale (PIRS) Rating Form. Ms Poulis referred to the reasons given for the class 2 assessment for Social and Recreational Activities:[4]
“She is less socially active than before her injury. However, she has regular outings with friends to restaurants, cafés and occasionally to the movies. She goes to the beach, walks in the park, and has occasional day trips. She sometimes refuses invitations because of anxiety.”
[4] Appeal papers page 40.
Ms Poulis’ allegations largely repeated those she made earlier in her statement. Ms Poulis told the Medical Assessor that “she always rain checked” and very rarely would go anywhere, and “certainly not restaurants no way.”
She said that she had told the Medical Assessor that she went to the movies once in four years and that “we” went really late in the cinema was empty. She said that she told the Medical Assessor that she avoided people and crowds. She said:
“I go nowhere. If I do go anywhere it’s off peak times when I know no one will be around.”
The fifth complaint made by Ms Poulis related to the Medical Assessors reasons regarding the Travel category in the PIRS. She referred to his reasons:[5]
“She is comfortable driving and travelling away from home. Although most of her trips are local, as is the case with most people, she can undertake longer journeys to unfamiliar places such as those to the Gold Coast, Tamborine Mountain and Noosa. She is planning a trip with her son to Adelaide. There is no suggestion that she requires a support person for these trips.”
[5] Appeal papers page 40.
Ms Poulis repeated that she would drive where she had to or “I avoid it like the plague”. Travelling too far or too long from home would produce arguments as Ms Poulis said that she would get “tired, fatigued, anxious and agitated” so that anger would set in.
Ms Poulis then referred to the reasons given by the Medical Assessor for his class 2 rating in the Concentration Persistence and Pace category:[6]
“She has subjective challenges with concentration and memory. However, she can persist in watching television shows or videos for a couple of hours with engagement. She reads tracts on the Internet, favouring self-help information. She engages in her hobby of knitting and crocheting and has recently completed a blanket. In my extended interview, she gave a coherent and detailed history.”
[6] Appeal papers page 40.
Ms Poulis largely repeated her earlier submissions regarding the Medical Assessor’s discussions in the body of his report. She alleged that she had told the Medical Assessor that she watched TV in bed to fall asleep at night “so it’s not two hours straight” and she repeated that she did not watch TV during the day. She said that she felt good doing crochet because it was something for her kids.
Finally, Ms Poulis addressed the findings by the Medical Assessor as to the class 4 rating he gave for employability. She again repeated the findings:[7]
“Having considered Ms Poulis’s entire history, I believe she could perform some duties in a less demanding environment, working up to 20 hours a fortnight. The environment would need to be less stressful and demanding than her previous workplace, and her attendance might sometimes be erratic.”
[7] Appeal papers page 40.
Ms Poulis alleged that she had told the Medical Assessor that she struggled to remember things when they happened. She said that she “also” struggled to respond quickly and was afraid of being attacked which caused her to process things slower. She said that it took at least an hour to respond to text messages, and that she took her time to read things, so as to ensure that they were interpreted correctly. She was slow in multitasking and struggled to keep focused. She said that she told the Medical Assessor, using an example he gave, that she would not be able to work at the back of the warehouse “with no one” as her “attendance would not be erratic it would be non-existent.”
SUBMISSIONS AS TO FRESH EVIDENCE
Ms Poulis
Ms Poulis did not make any submissions as to the admissibility of her statement. She did not refer to the relevant legislation regarding the admission of additional evidence nor did she refer to any authority. She appears to have assumed that the additional statement was automatically admissible.
As we explain below, this has led to a number of difficulties when considering Ms Poulis’s substantive submissions, as her assumption was incorrect.
The respondent
The respondent objected to the reception of Ms Poulis’ statement. We were referred to the provisions of s 328 (3) of the 1998 Act, which we have re-produced above. The respondent submitted that Ms Poulis “had the opportunity to provide such oral history to the [Medical Assessor] at the time of the examination.”
The respondent noted that Ms Poulis had raised numerous criticisms regarding the manner in which the Medical Assessor conducted the interview and in which he recorded the history. We were referred to Crawford v Weston Aluminium (Manufacturing) Pty Ltd[8] and the consideration therein made by the Medical Panel of both the Supreme Court and Court of Appeal judgements in Lukacevic v Coates Hire Operations Pty Limited.[9]
[8] [2022] NSWPICMP 58.
[9] [2010] NSWSC 551 and [2011] NSWCA 112 respectively.
Accordingly, it was submitted, the fresh statement dated 13 August 2024 should not be admitted.
DISCUSSION AS TO FRESH EVIDENCE
In the Court of Appeal in Lukacevic Hodgson JA (Handley AJA agreeing, Giles JA dissenting) stated at [78]:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
In the present case there are a number of difficulties which stand in the way of our accepting that Ms Poulis’s statement has any substantial prima facie probative value. In the first place it must be remembered that Ms Poulis was not called on to remember the detail of her assessment until she reviewed the MAC some six weeks later. She did not make any contemporaneous note of what was said, and has been disappointed by the assessment, which meant she is not entitled to any lump sum compensation for injury. In these circumstances there is always a danger that a disappointed litigant might, quite innocently, reconstruct his/her memory as to what was said. There were a number of assertions by Ms Poulis that illustrate this problem.
Ms Poulis agreed that she told the Medical Assessor that she had two close friends, but she said on two occasions in her statement that she had explained to the Medical Assessor that she "raincheck[ed]" their invitations to go out. In fact she alleged that she did not go with them to cafés, out to lunch or a to pub for meals, as had been recorded by the Medical Assessor. Ms Poulis also denied that she had said anything about going out on day trips. Ms Poulis alleged that she had told the Medical Assessor that her friends lived on Tambourine Mountain, but not that she had said that she herself travelled there.
Ms Poulis also denied that she had said she was planning a trip to Adelaide to collect the stored furniture when she said the same paragraph that indeed that was her intention. She again denied that she would go to restaurants with her friends.
Thus, Ms Poulis would have us accept that an experienced Medical Assessor would either mishear, mis-record or deliberately ignore what is now said to have been the conversation. Moreover, it was suggested that the Medical Assessor added matters of history that were simply not offered, such as when she stated that she did not say anything about day trips. The question immediately arises as to how the Medical Assessor came to mention day trips at all, if she had not mentioned them.
The effect of Ms Poulis’s evidence is that the Medical Assessor had been so careless about recording what she said that he totally misunderstood her – to the extent that when she told him that it was her friend that lived in Mount Tambourine, he erroneously thought she had said that she travelled there herself.
Ms Poulis maintained that she told the Medical Assessor that she went to the movies “once in four years”, because it was “dark and we went really late and the cinema was empty”. She said that she told the Medical Assessor that she avoided people and crowds. Again, this statement alleges that the Medical Assessor had completely misunderstood what she said when, contrary of what she now says, he noted that she had regular outings with friends, to restaurants, cafes and occasionally to the movies.
It is implausible that a Medical Assessor appointed to the Personal Injury Commission would make such egregious errors. Although it is always possible that such errors might occur, there is a presumption of regularity which applies to decisions of administrative decision makers, of whom a Medical Assessor is one.[10] It may accordingly be presumed that a Medical Assessor will have accurately recorded what he had been told during the assessment. Presumptions of course may be rebutted, but the above allegations fall far short of doing so.
[10] Jones v The Registrar WCC [2010] NSWSC 481 citing Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175: Western Sydney Health District v Chan – see footnote 23 below.
Secondly, Ms Poulis has otherwise done no more than concede in her statement that she is able to perform the functions described by the Medical Assessor, but was anxious to describe how she felt whilst she was performing them.
Ms Poulis conceded that she could drive, she conceded that she went to the beach and walked her dog unaccompanied, she conceded that she watched television on a daily basis and that she spent up to two hours on social media. She admitted that she listened to music, albeit she said it was "background music," and she admitted that she crocheted. Moreover, she contradicted herself when she said firstly that she did not go anywhere and secondly that she did so at off peak times. Although she made some comments about her employability, she did not address the finding that she could work 20 hours per fortnight.
The motivation for a person to perform certain actions is not relevant in the system under which psychiatric/psychological impairment is assessed. This will be discussed further below.
For these reasons the statement by Ms Poulis dated 13 August 2024 is rejected.
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 but 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.
The substantive appeal claimed that the Medical Assessor had fallen into error in his assessment of “at least” four of the categories in the Psychiatric Impairment Rating Scale. Submissions were made in fact in relation to four categories and we accordingly ignore the description “at least.”
THE MAC
The history noted that Ms Poulis commenced with the respondent on 8 November 2019 and her employment was terminated on 15 July 2020. The Medical Assessor noted that Ms Poulis, although denying any pre-existing mental health problems, had been shown in contemporaneous medical records to have needed psychological treatment. When brought to her attention she explained the circumstances under which she had sought treatment.
The Medical Assessor noted Mr Poulis has been living in Brisbane for the last four years with her 22-year-old son and 20-year-old daughter. Her daughter is on a disability support pension for autism spectrum disorder and panic disorder. Ms Poulis received a carer’s pension in that regard. With regard to her daily activities, the Medical Assessor recorded a number of matters, some of which have already been extracted in considering the application to admit Ms Poulis’s late statement of 13 August 2024. We repeat the relevant findings in this context:[11]
Before becoming unwell, Ms Poulis had an active social life in Sydney with close friends. She enjoyed visiting restaurants and cafés.
In Brisbane, she has two close friends. They enjoy going to cafés and out to lunch or a pub for meals. She occasionally goes to the beach, walks in a dog park, attends movies, or goes on day trips. For example, she has recently been to Tamborine Mountain.
She is comfortable in the car and has no problems travelling independently locally. She regularly drives her daughter to her various activities. She also travels further afield and has described trips to Southbank, the Gold Coast, and Noosa. Although she hasn’t visited Adelaide to see her parents since 2020, she plans a trip later this year.
She described a close and caring relationship with her children, although she said they have moments when “they are treading on eggshells with me.” There is some tension and arguments. She has regular contact with her mother, whom she described as “like my best friend.” Her relationships with her father and brother are fine.
She has two close girlfriends.
…..
Ms Poulis spends 1-2 hours on social media and watches television daily. She can engage with documentaries, crime shows, and House Hunters. She enjoys listening to music. She reads less and only on the Internet. Her hobby is crocheting and knitting. She has just finished making a blanket for her daughter and is starting one for her son.
[11] Appeal papers page 40-41.
The Medical Assessor related his findings on mental state examination at [5] of the MAC. He noted a “comprehensive assessment that lasted 105 minutes” and he noted that Ms Poulis gave a detailed history without evidence of memory challenges or cognitive difficulties.
With regard to Ms Poulis’ consistency of presentation, the Medical Assessor found her narrative to be broadly consistent with others she had given, but found that she had downplayed the pre-existing mental health challenges noted by her general practitioner (GP) just before she commenced with the respondent. The Medical Assessor thought, at [8e] of his MAC, that she likely had a depressive disorder with anxious distress, although he said that it was not possible to be precise, as Ms Poulis attributed all her symptoms to her work injury.
The Medical Assessor noted the opinions of the other medical practitioners at [10c] of the MAC. With regard to the report of Dr David Kumagaya of 21 November 2023, who had determined 19% WPI, he said:
“My assessment of impairment differs from that of Dr Kumagaya in several respects. He found a moderate impairment in social and recreational activities, whereas I considered the impairment mild. Dr Kumagaya argued:
‘Ms Poulis is no longer engaged in any social and recreational activities, such as outings with her friends and family, due to her anxiety, restlessness, and concentration difficulties.’
Ms Poulis described regular social outings with friends, including going to cafés and restaurants, going to the beach, walking in parks, and taking day trips such as Tamborine Mountain. She is often anxious away from home and will sometimes refuse invitations, therefore warranting a mild impairment rather than being found unimpaired.
Dr Kumagaya found a mild impairment in travel, whereas I found Ms Poulis unimpaired. He noted:
‘Ms Poulis avoids leaving her residence if at all possible. Whilst she is able to attend familiar areas without a support person she has been unable to attend unfamiliar areas since her work-related injury due to her anxiety.’
This is at odds with the history given to me today by Ms Poulis. Instead, she said she is comfortable travelling and described being in a car as ‘my zone’, meaning a place of comfort. She described day trips to several places away from her home and plans for a trip to Adelaide. Any deficit is consistent with normal variation in the general population.
Dr Kumagaya found a moderate impairment in concentration, persistence and pace, whereas I considered the impairment mild. He wrote:
‘Ms Poulis struggles to maintain her concentration for longer than several minutes at a time due to her anxious symptoms. Ms Poulis has not been able to engage in any cognitively demanding tasks in recency [sic].’
Today Ms Poulis described watching television documentaries and other shows with interest, viewing self-help videos and reading material on the Internet, and engaging in her hobby of crocheting knitting including recently completing making a blanket for her daughter. She describes subjective problems with concentration and memory but gave a detailed and comprehensive history during an interview that lasted 105 minutes.
Dr Kumagaya found Ms Poulis unfit for work, whereas I considered that she had a severe impairment.
Ms Poulis is distressed about losing her real estate agent vocation. She found work rewarding but now struggles to trust others. In discussing possible alternatives, she expressed concern that she could not do other full-time high-level jobs such as real estate appraisal or management. However, considering all aspects of her history, including her ability to support her daughter and receive a carer’s pension for this, I considered that Ms Poulis could work in some capacity in a less stressful role for less than 20 hours a fortnight. Her attendance might be erratic. This is in line with a severe, rather than total, impairment.”
SUBMISSIONS
As we indicated when rejecting Ms Poulis's fresh evidence, there were no submissions made as to its admissibility, and her submissions were predicated on the assumption that her fresh statement would automatically be admitted.
This has led to the need for some repetition in dealing with the substantive submissions. We now address Ms Poulis’ submissions for each impugned category.
Social and recreational activities
Ms Poulis acknowledged the class 2 rating given in this category by the Medical Assessor, and referred to his reasons for doing so. She alleged that those reasons were incorrect, relying on what she had to say in her fresh evidence. We have rejected that evidence for the reasons given above.
Ms Poulis referred to the opinion of Dr David Kumagaya, the psychiatrist retained as her qualified expert in his report of 21 November 2023.[12] She noted that Dr Kumagaya had given a class 3 rating in this category, and we were referred to his reasons for doing so.
[12] Appeal papers page 99.
Ms Poulis also referred to her earlier statement dated 12 March 2024,[13] submitting that the Medical Assessor had contradicted what she had therein stated.
[13] Appeal papers page 54.
Travel
Ms Poulis submitted that the class 1 rating allocated by the Medical Assessor was incorrect. She argued that what she had to say in her fresh statement, combined with the opinion of Dr Kumagaya, should have resulted in a class 2 assessment. She also referred to her statement of 12 March 2024.
Concentration, persistence and pace
Ms Poulis referred to the class 2 rating given by the Medical Assessor, and stated that the contents of her fresh evidence demonstrated that this rating was incorrect. She again referred to the opinion of Dr Kumagaya and a paragraph in her statement of 12 March 2024.
Employability
Ms Poulis it submitted that it was inappropriate for the Medical Assessor compare her caring duties for her daughter with her capacity to “secure and maintain gainful employment.” We were again referred to the rejected fresh evidence and Ms Poulis for loss quoted two of the paragraphs in her statement of 12 March 2024.
Ms Poulis again relied on the opinion of Dr Kumagaya. She also referred to the opinion of her treating psychiatrist, Dr Lindy Schur, and her treating GP, Dr Mehdi Samari – both opinions being that she had no capacity to work.
Ms Poulis submitted that, as she had been certified totally unfit by her treating doctor the Medical Assessor had erred in failing to address that opinion.
THE RESPONDENT
We note the detail of the respondent’s thorough and comprehensive submissions. They are contained in the material before us, and in view of the conclusion we have reached, it is not necessary to further refer to them, as many of them are incorporated in our reasons.
DISCUSSION
The PIRS
The PIRS is established as the rating system 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.
As we noted earlier, the assessment is based on whether a claimant is able to perform the described functions.
Chapter 11.12[14] 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.”
[14] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[15] None of the descriptors are concerned with a claimant’s motivation or degree of difficulty he/she encounters when the functions are performed.
[15] 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[16] 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 Appeal 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[17]. 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].”
[16] [2017] NSWSC 887.
[17] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[18] 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])…..”
[18] [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[19] 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).
[19] [2022] NSWSC 929
The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
As we have rejected Ms Poulis’ fresh statement of 13 August 2024, we will not include Ms Poulis’ references to it in these reasons.
Social and recreational activities.
The first ground relied on by Ms Poulis was related to the category of social and recreational activities.
Chapter 11.2 of the Guides provides the following relevant classification:
“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.”
The Medical Assessor found a class 2 rating, saying, to repeat:[20]
“She is less socially active than before her injury. However, she has regular outings with friends to restaurants, cafés and occasionally to the movies. She goes to the beach, walks in the park, and has occasional day trips. She sometimes refuses invitations because of anxiety.”
[20] Appeal papers page 40.
Ms Poulis firstly relied on the opinion of Dr Kumagaya, who had assessed a class 3 rating. Dr Kumagaya’s report was dated 21 November 2023, and his reasons accepted Ms Poulis’s account that:[21]
“Ms Poulis is no longer engaged in any social and recreational activities, such as outings with her friends and family, due to her anxiety, restlessness, and concentration difficulties.”
[21] Appeal papers page 115.
In her statement of 12 March 2024, Ms Poulis painted a very different picture of her condition compared to that found by the Medical Assessor.[22] Ms Poulis asserted that she was “a recluse“ and that the only place where she felt safe was her home. She said she had lost touch with her many friends since her injury, and had not made any effort to maintain those friendships as she did not have the energy to maintain them. She did admit that she went to the beach and that she went to shopping centres or the shops. She had not, she said, “been to a restaurant for a very long time now.”
[22] Statement at appeal papers page 54.
We have reproduced above the comments by the Medical Assessor regarding Dr Kumagaya’s reasons. The Medical Assessor then explained why he differed, stating the history that Ms Poulis had given him during the assessment, which included “regular social outings with friends, going to cafés and restaurants, going to the beach, walking in parks and taking day trips such as Tambourine Mountain.” It is thus apparent that her condition had improved markedly from that she described in her statement of 12 March 2024, or that, perhaps, the Medical Assessor had used his expertise and experience in the face-to-face consultation to assess the significance or otherwise of the matters therein raised.
In Sydney Local Health District v Chan[23] Adams J referred to the High Court decision of Wingfoot Australia Pty Ltd v Kocak,[24] finding that the Court’s comments were equally applicable to the function of a Medical Assessor. From [13] Adams J cited Wingfoot at [47]:
“….The function of a Medical Panel is neither arbitral nor 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 form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[23] [2015] NSWSC 1968.
[24] [2013] HCA 43.
Accordingly, the opinion of Dr Kumagaya is of little weight – especially as the Medical Assessor has so clearly explained why he differed.
Travel
As to the category of Travel, Chapter 11.3 of the Guides provides relevantly:
“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.”
As noted in rejecting the application to admit fresh evidence, the Medical Assessor found a class 1 rating, saying:
“She is comfortable driving and travelling away from home. Although most of her trips are local, as is the case with most people, she can undertake longer journeys to unfamiliar places such as those to the Gold Coast, Tamborine Mountain and Noosa. She is planning a trip with her son to Adelaide. There is no suggestion that she requires a support person for these trips.”
Ms Poulis took a similar approach in her submissions regarding this category. Dr Kumagaya’s assessment of a class 2 rating was relied on. Although Ms Poulis did not repeat Dr Kumagaya’s reasons, we note he said:
“Ms Poulis avoids leaving her residence if at all possible. Whilst she is able to attend familiar areas without a support person she has been unable to attend unfamiliar areas since her work-related injury due to her anxiety.”
Ms Poulis also referred to her statement of 12 March 2024, in which she related that she would become “very anxious and restless” if she went out, and that her home was “the only place where I feel safe...” We note that she made no reference to whether she drove or not, and after the consultation with the Medical Assessor he was satisfied that Ms Poulis did not suffer any deficit, or only a minor deficit in this category. Again, he gave clear reasons for his assessment, and explained that the findings by Dr Kumagaya word at odds with the history he had taken.
Concentration, Persistence and Pace
Similar observations can be made regarding the challenge to the class 2 rating the Medical Assessor gave for the category of Concentration, Persistence and Pace. The relevant categories under Chapter 11.5 of the Guides are:
“Class 2 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.
Class 3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The reasons given by the Medical Assessor were:
“She has subjective challenges with concentration and memory. However, she can persist in watching television shows or videos for a couple of hours with engagement. She reads tracts on the Internet, favouring self-help information. She engages in her hobby of knitting and crocheting and has
recently completed a blanket. In my extended interview, she
gave a coherent and detailed history.”
An added difficulty for Ms Poulis in arguing this error was that Dr Kumagaya had also found there to be a class 2 rating for this category, although she failed to mention that in her submissions. Her statement of 12 March 2024 also did not assist her case, as it asserted that her “poor concentration” was what she believed prevented her from “getting back to work.” She said she also had to check whether she locked her windows and doors.
Again, the Medical Assessor has given clear reasons and explained his decision.
Employability
Finally, Ms Poulis’ submissions regarding the employability category must also be dismissed. Although Dr Kumagaya assessed a class 5 rating, he made no attempt to analyse the classes set out by Chapter 11.6 of the Guides. These provide relevantly:
“Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: Cannot work at all.”
The reasons given by the Medical Assessor were:
“Having considered Ms Poulis’s entire history, I believe she could perform some duties in a less demanding environment, working up to 20 hours a fortnight. The environment would need to be less stressful and demanding
than her previous workplace, and her attendance might sometimes be erratic.”
Ms Poulis’ reliance on the assessment by her GP and treating psychiatrist as to her capacity for employment appeared to conflate two different concepts. The classification of an injured worker in the Employment category of the PIRS is assessed by reference to the descriptors, whereas the question of whether an injured worker has any capacity to earn weekly compensation by way of income support is governed by Division 2 of the Workers Compensation Act 1987 and has quite different criteria.
The Medical Assessor again explained clearly his reasons not only in the Table 11.8 PIRS Rating Form, but in dealing with Dr Kumagaya’s opinion:
“Ms Poulis is distressed about losing her real estate agent vocation. She found work rewarding but now struggles to trust others. In discussing possible alternatives, she expressed concern that she could not do other full-time high-level jobs such as real estate appraisal or management. However, considering all aspects of her history, including her ability to support her daughter and receive a carer’s pension for this, I considered that Ms
Poulis could work in some capacity in a less stressful role for less than 20 hours a fortnight. Her attendance might be erratic. This is in line with a severe, rather than total, impairment.”
For these reasons, the Appeal Panel has determined that the MAC issued on 26 July 2024 should be confirmed.
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