Puglisi v State of New South Wales (NSW Police Force)
[2023] NSWPICMP 171
•31 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Puglisi v State of New South Wales (NSW Police Force) [2023] NSWPICMP 171 |
| APPELLANT: | Mark Anthony Puglisi |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Brian Parsonage |
DATE OF DECISION: | 31 March 2023 |
DATE OF AMENDMENT: | 3 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; appeal only in respect of psychiatric impairment rating scale (PIRS) table assessing concentration, persistence and pace; Medical Assessor did not take a detailed history of activities of daily living and focused on making a diagnosis rather than taking a history from which to assess impairment; Held – re-examination required; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 November 2022 Mark Anthony Puglisi 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 4 November 2022.
Mr Puglisi 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that in s 327(3)(d). We conducted a review of the original medical assessment but 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
Mr Puglisi suffered a psychological injury in the course of his employment as a police officer. The injury is deemed to have been suffered on 15 January 2020.
The Medical Assessor assessed 9% whole person impairment (WPI). The only ground of appeal is with respect to his assessment under the psychiatric impairment rating scale (PIRS) table with respect to Concentration, persistence and pace. The Medical Assessor assessed Mr Puglisi in Class 2 but Mr Puglisi contends he should have been assessed in Class 3.
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 Mr Puglisi should undergo a further medical examination because the Medical Assessor did not include a detailed description of his activities of daily living. It was therefore not possible to assess the impact of the injury on the practical issues relevant to an assessment of Concentration, persistence and pace.
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.
Dr Parsonage conducted a re-examination on 23 March 2023 and his report is attached to these reasons.
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. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by his solicitor, Mr Bourke, Mr Puglisi set out a series of “findings” based on the Medical Assessor’s personal observation of him which he said supported an assessment of a moderate impairment under Table 11.5. He also relied on the assessments in Class 3 made by his treating psychiatrist, Dr Scurrah and Dr Wood who was qualified for the Police Force.
The findings Mr Puglisi relies on are:
“a. his alcohol intake is increased over the last two years as he struggles with his mental health;
b. ‘the medication (Valium and Mogadon) helped me relax a bit. I was thinking less although the relief was short lived’.
c. Mr Puglisi has had limited benefit from ongoing psychotherapeutic input. He has been using diazepam Nitrazepam on an ‘as required’ basis to help manage poor sleep patterns and excessive anxiety symptoms. Mr Puglisi has also continued to rely on excessive alcohol use since 2020.
d. ‘I struggled with simple things. I do not have energy or motivation.’
e. It is evident that Mr Puglisi has continued to struggle with post-traumatic stress disorder and major depressive disorder symptoms;
f. he is struggling with daily household chores;
g. Mr Puglisi was observed to be tired from the start of the interview;
h. significant signs of neglect… were evident at the time of review;
i. he struggled with concentration and recall;
j. he spoke slowly in a monotonous tone;
k. poverty of thought content was evident at the timer for review;
l. he continues to experience depressive cognition;
m. “it takes me longer to complete simple jobs.” (emphasis in original).
Mr Puglisi said that the Medical Assessor made a demonstrable error by relying on the fact that he could concentrate for an hour and 20 minutes where his “findings of fact … contradicted such a finding”. Mr Puglisi said that the finding that he has only a mild impairment is not consistent with the criteria in class 2 or class 3.
In reply and in submissions prepared by its solicitor, Mr Khoshaba, the Police Force submitted that the Medical Assessor had taken a thorough history and considered that history in totality before assessing Mr Puglisi in Class 2. It noted that the Medical Assessor had considered the reports of Dr Scurrah and Dr Ward, noting that Dr Scurrah’s assessment was nearly 12 months before that by the Medical Assessor. The Police Force said it was difficult to conceive how the Medical Assessor could have arrived at a different assessment and noted that many of the other factual matters on which Mr Puglisi relies are inappropriate for an assessment in this category. It noted the similarity with Dr Wood’s overall assessment.
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 Campbelltown City Council v Vegan[1] 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.
[1] [2006] NSWCA 284.
Principles of assessment
The Guidelines provide in paragraph 1.6 that assessment of permanent impairment involves clinical assessment of a worker as he presents on the day of assessment, taking into account his relevant medical history and available relevant medical information.
Paragraph 11.4 of the Guidelines provides that the impairment rating must be based on a psychiatric diagnosis. Paragraph 11.6 reads:
“It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, ... Evaluation of impairment will need to take into account variations in the level of functioning over time. …”
Paragraph 11.12 describes the application of the PIRS:
“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.”
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment, moderate impairment. What follows in each class are examples which are consistent with the level of impairment. Class 1 applies where there is “no deficit, or a minor deficit attributable to the normal variation in the general population”, accepting that there is a range of behaviours which can be considered “normal”. Contrary to Mr Puglisi’s submission, assessment in class 2 does connote a mild impairment.
Campbell J considered the categorisation of impairment under the PIRS in Ferguson v State of New South Wales. His Honour said[2]:
“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 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 [2015] NSWSC 633. 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’…”
[2] [2017] NSWSC 887At [24] – [25].
Each of the PIRS tables is assessed separately and particular conduct must be applied to the appropriate scale - Ballas v Department of Education.[3] Bell P and Payne JA said:
“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.
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.”[4]
[3] [2020] NSWCA 86.
[4] At [93]-[94].
Mr Puglisi’s submissions refer to a number of factors, described as “findings”, which he said support assessment in class 3 for concentration, persistence and pace. Only those matters in sub-paragraphs (d) – that he struggles with simple things and does not have energy or motivation and those in (i) to (m), highlighted in bold in the submissions, are in fact relevant to the assessment under Table 11.5.
Though both Mr Puglisi’s treating psychiatrist, Dr Scurrah, and Dr Wood, qualified for the Police Force, assessed him in class 3 for concentration, persistence and pace, the Medical Assessor was not required to adopt the reasoning of the doctors qualified by the parties. Campbell J described the task of the Medical Assessor in State of New South Wales (NSW Department of Education) v Kaur)[5]:
“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.’”
Consideration
[5] [2016] NSWSC 346.
While the Medical Assessor prepared a detailed MAC, he focussed on the history of Mr Puglisi’s condition and is background and did not take a detailed history of his social activities and activities of daily living. The relevant section in the standard MAC form has been entirely omitted.
The Medical Assessor recorded Mr Puglisi’s psychiatric history in detail and described his treatment. The Medical Assessor summarised his presentation over the previous six months and the only description in the MAC of Mr Puglisi’s daily activities appears under this heading. The Medical Assessor said:
“Mr Puglisi told me, ‘I struggled with simple things. I do not have energy or motivation.’ On further diagnostic clarifications, it is evident that Mr Puglisi has continued to struggle with posttraumatic stress disorder and major depressive disorder symptoms. He continues to rely on excessive alcohol use to manage his mental health issues. He denied any ongoing illegal drug use.
Mr Puglisi told me that he avoids any social interactions. He is struggling with daily household chores. Mr Puglisi continues to experience anger and irritability ‘I don't see people as I get angry and agitated easily’. Mr Puglisi denied any ongoing pain symptoms ‘my pain has been manageable’.”
The Medical Assessor set out Mr Puglisi’s family, medical and personal history and his findings on his mental state examination. He said:
“He struggled with concentration and recall. Mr Puglisi spoke slowly in a monotonous tone. Poverty of thought content was evident at the time of review.
Mr Puglisi described his mood as ‘I feel tired’.”
The Medical Assessor summarised his opinion:
“Mr Puglisi is a middle-aged gentleman living with his family at their Ballina residence.
Mr Puglisi provided me history indicative of him experiencing mild posttraumatic stress disorder symptoms secondary to the workplace stressors approximately five years ago. Mr Puglisi started using excessive alcohol as a way to cope with the stressors. He experienced gradual worsening of his mental health. Mr Puglisi decompensated in January 2020 as he dealt with road traffic accident as a part of his job.
Mr Puglisi had short antidepressant treatment trial approximately four years ago. He continued to use Diazepam and Nitrazepam medication as required to help manage anxiety and sleep disturbance. He has also continued to rely on excessive alcohol use over the last five years.
Mr Puglisi has received input from a psychiatrist and psychologist since 2020. He has responded partially to the psychotherapeutic input.
I was not able to elicit past psychiatric history or Mr Puglisi presenting with specific personality traits or deficits contributing to his presentation.
Overall, as per the review today, I am of the opinion that Mr Puglisi's presentation/symptoms satisfy the criteria of
• Posttraumatic stress disorder
• Major depressive disorder
• Alcohol use disorder.”
Our review of the MAC shows that the Medical Assessor focussed on making a diagnosis. He assessed whether a deduction was required in respect of any pre-existing condition. He was required by the Guidelines to do so and was thorough in those tasks.
However his main task in preparing a MAC in respect of a permanent impairment claim is the assessment of impairment. By failing to set out in detail what Mr Puglisi does on a daily basis and exploring variations in his functioning over time, the Medical Assessor did not provide the factual basis to make and support the assessment he made.
The Medical Assessor did not provide any commentary on his assessment in the body of the MAC. He provided short reasons in the PIRS table for assessing Mr Puglisi in class 2:
“Mr Puglisi told me ‘I get frustrated with any job easily. It takes me longer to complete simple jobs’. He told me that he avoids taking on tasks requiring sustained concentration. He was able to concentrate for 1 hr 20 min during the review.”
The Medical Assessor did not grapple with the difference between Mr Puglisi’s reported avoidance of tasks requiring sustained concentration and his own observation about Mr Puglisi’s ability to concentrate for the duration of the assessment. The Medical Assessor’s statement about his ability to concentrate is at odds with the findings on his mental state examination and his reference to the time the interview took gave an inappropriate weighting to the concentration element of the table. Table 11.5 does not only measure a worker’s ability to concentrate. Mr Puglisi’s comment about feeling tired is relevant because the table measures his ability to persist with a task and complete it in a timely fashion.
Dr Wood’s comment in her report dated 16 March 2022 appreciates that distinction. She said:
“…He did describe subjective difficulty with concentration in several areas. He has been unable to read a book, follow TV shows or watch a movie. However, he was able to attend to this interview without needing to take a break, but this is a more interactive activity.”
The lack of a detailed history in the MAC about Mr Puglisi’s activities of daily living required that he be re-examined for the purpose of the appeal. Dr Parsonage’s report is attached and we adopt his findings.
For these reasons, we have determined that the MAC issued on 4 November 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3673/22 |
Applicant: | Mark Anthony Puglisi |
Respondent: | State of New South Wales (NSW Police Force) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Aman Suman and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total % WPI (after any deductions in column 6) |
| Psychological injury | 15.1.2020 | Chapter 11 pp 54-60. | Not applicable | 19% | Nil | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
5
0