Progress Rail Australia v Powell
[2024] NSWPICMP 22
•17 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Progress Rail Australia v Powell [2024] NSWPICMP 22 |
| APPELLANT: | Progress Rail Australia |
| RESPONDENT: | Gregory Scott Powell |
| APPEAL PANEL | |
| MEMBER: | Richard J Perrignon |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 17 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether assessor erred in assessing the psychiatric impairment rating scale for social and recreational activities; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The employer appeals from the Medical Assessment Certificate of Medical Assessor Morris dated 28 April 2023. He examined Mr Powell on 19 April 2023 by video, and assessed a 24% whole person impairment (psychological) as a result of injury on 18 May 2023 (deemed date).
He assessed a class 4 impairment in respect of the psychiatric impairment rating scale (PIRS) Social and recreational activities.
The appellant employer submits that the assessment of class 4 was in error, because the examples given in the Table 11.1 of the Guidelines for a class 4 impairment include one that the worker never leaves the house, whereas the history taken by the Medical Assessor demonstrates that he does leave his house to visit his nearby parents and brother in the company of his wife, to drive to his psychiatrist, and to do some gardening with his wife.
The appellant does not advocate for any particular outcome save that the Medical Assessment Certificate be set aside. It points to the assessments of the independent medical examiners qualified by the employer and the worker– Dr Potter and Dr Chow – who assessed a class 2 and 3 impairment respectively.
The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:
(a) The Medical Assessor took a history that:
(i)the worker’s wife takes him to visit his nearby parents and his nearby brother about every three weeks;
(ii)he can drive a short distance to his psychiatrist, and
(iii)he can do some gardening with his wife’s encouragement.
(b) Dr Potter assessed a class 2 impairment in respect of Social and recreational activities, and Dr Chow a class 3.
(c) 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 v State of NSW [2017] NSWSC 887 at [23].
(d) “A significant matter in terms of a class 4 rating would be that he never leaves his place of residence”.
The respondent submits in brief summary as follows:
(a) the example ‘never leaves place of residence’ refers to participation in social events with other people in a public space, or with the public at large. It does not refer to visiting a medical practitioner for treatment or visiting family with a support person, and
(b) seeing a friend or family members falls squarely within the Social functioning scale: Ballas v Dept Education (State of NSW) [2020] NSWCA 86 at [96]. Those activities should not be included in assessing Social and recreational activities.
Social and recreational activities
The criteria in Table 11.1 of the Guidelines for rating class 2, 3 and 4 impairment in respect of Social and recreational activities are as follows:
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
In the PIRS Table attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 4 impairment in respect of Social and recreational activities:
“Severe impairment. Mr Powell has lost interest in woodwork, reading and bushwalking. He does not have any social or recreational activities and remains at home. His only visits outside the house now are when his wife takes him to visit his parents about every 3 weeks and to visit his brother every 3-4 weeks. He does not tolerate people visiting his home because he feels extremely anxious. If his wife does have a friend visit their home, he will leave the main part of the house and go to the garage or granny flat to avoid having to socialise with them.”
It was the task of the Medical Assessor to determine in which class of impairment the behavioural consequences of psychological injury best fit, by applying the descriptors and examples in each class: Guidelines at [11.12]. His task was to assess the worker as he presented at examination. For that reason, he was not bound by previous assessments of
Dr Potter or Dr Chow.The respondent submits that the consequences of behavioural injury are inconsistent with the descriptors for a class 4 impairment, because the worker leaves his house with his wife to visit his parents and brother, and does some gardening with his wife.
At [10b], the Medical Assessor gave the following reasons for not including visits to parents and brother in his assessment of Social and recreational activities:
“Mr Powell said that his wife takes him about every 2-3 weeks to visit his elderly parents who live nearby and about every three weeks to visit his brother. I believe that these visits are best captured under the category of Social functioning where I rated Mr Powell as a Class 2.”
Whether a particular behavioural consequence of injury falls within one scale or another is not a matter of clinical judgment or discretion. The Court of Appeal observed in Ballas - emphasis added:
“92 … The scales are fixed and are treated by the Guidelines as distinct from each other. The structure of the Guidelines, and the mandated use of a standardised form on which an AMS must specify the ‘class’ he or she assigns to each “scale” and give his or her reasons for doing so, are designed to add transparency and rigour to the exercise of WPI assessment.
93 Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94 Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
The worker’s visits to parents and brother form part of, and demonstrate, his ongoing relationship with his family members. It was well open to the Medical Assessor to find, as he did, that such activities are assessable under the scale, Social functioning. His decision to take them into account only in respect of that scale accords with the principle in Ballas. We can discern neither error in his approach, nor the application of incorrect criteria.
The same can be said of the worker’s ability to drive a short distance to his psychiatrist for treatment. That behaviour is assessable under the scale, Travel. It is not a social or recreational interaction, but a professional and medical one. It was well open to the Medical Assessor to find, as he did by necessary implication, that it was assessable under Travel, and to take it into account only in respect of that scale. We can discern neither error in his approach, nor the application of incorrect criteria.
With respect to gardening, the Medical Assessor recorded under the heading, Social activities/ADL:
“He said that at times he walks around his garden. He said occasionally his wife encourages him to do a little bit of gardening with her.”
The appellant does not explain why this history is inconsistent with a class 4 impairment. For reasons already given in respect of visits to family members, the worker’s activities with his wife are assessable under Social functioning. They are relevant to the assessment of Social and recreational activities. In any event, one of the examples given in Table 11.1 for a class 4 impairment is ‘never leaves place of residence’. His ‘residence’ is the place where he resides. In this case, the worker resides in a property which includes a house and garden. He does not leave that residence by entering the garden, or working in it. We can discern no inconsistency between the example given in Table 11.1 and entering his garden, or working there with his wife’s encouragement.
Conclusion
For the reasons given, the Medical Assessment Certificate of Medical Assessor Morris is confirmed.
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