Radakovic v Sydney Trains
[2023] NSWPICMP 598
•20 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Radakovic v Sydney Trains [2023] NSWPICMP 598 |
| APPELLANT: | Joseph Radakovic |
| RESPONDENT: | Sydney Trains |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 20 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury to train driver; extent of Medical Assessor’s obligation to comment on statement and medical evidence in file; Bojko v ICM Property Service Pty Ltd and State of New South Wales (NSW Department of Education) v Kaur referred to; assessment under the psychiatric impairment rating scale in four categories; Ballas v Department of Education applied; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 June 2023 Joseph Radakovic lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Bradley Ng, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 May 2023.
Mr Radakovic relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Radakovic was employed by Sydney Trains as a train driver and was exposed to a number of traumatic events over the course of his employment. He suffered a psychological injury which is deemed to have occurred on 16 March 2021.
The Medical Assessor assessed 8% permanent impairment. He assessed Mr Radakovic in class 3 for self care and personal hygiene, class 2 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 2 for concentration, persistence and pace and class 3 for employability. The Medical Assessor added 1% for the effect of treatment.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Radakovic submitted first, that the history obtained by the Medical Assessor was incomplete and failed to demonstrate an understanding of the numerous traumatic events to which he was subjected and second, that the Medical Assessor failed to “mention and therefore consider” the evidence on which he relied including the reports of Dr George, qualified on his behalf, and his psychologist, Dr Pineda.
Mr Radakovic said that the Medical Assessor failed to place him in the correct class of the Psychiatric Impairment Rating Scale (PIRS) for each of social and recreational activities and travel and that those assessments were made on the basis of incorrect criteria. He said that the Medical Assessor made demonstrable errors in his assessments of social functioning and concentration, persistence and pace. The sixth ground on which Mr Radakovic relied was that the Medical Assessor failed to consider his statement dated 21 March 2023 as to his current condition and that, in failing to refer to the evidence, the did not afford him procedural fairness.
Mr Radakovic relied on authorities with respect to the task of an administrative decision maker under other legislation, including an assessor under the motor accidents legislation.
In reply, Sydney Trains submitted that the Medical Assessor did obtain a history which he set out in his report and that the lack reference to every document did not mean that the Medical Assessor had not considered them. It said that the authorities to which Mr Radakovic’s submissions referred were not relevant.
Sydney Trains said that the Medical Assessor had given reasons for his assessment in each of the PIRS categories and that there was no evidence that the Medical Assessor had failed to consider Mr Radakovic’s statement. Sydney Trains said that the authorities on which Mr Radakovic relied on did not support his submissions.
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 Radakovic should undergo a further medical examination because the it was difficult to discern the path of reasoning which led the Medical Assessor to his assessments under the PIRS for social and recreational activities, travel, social functioning and concentration, persistence and pace.
The history he obtained with respect to social activities and the activities of daily living is fairly brief and does not disclose the basis for the impairments Mr Radakovic suffers.
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 Andrews of the Appeal Panel conducted an examination of the worker on 2 November 2023. His report forms part of these reasons.
The parts of the MAC that are relevant to the appeal are set out, where relevant, in the body of this decision.
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 an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
Principles of assessment
The first, second and sixth grounds relied on by Mr Radakovic are best considered by considering the task the Medical Assessor was required to perform and legislative basis for it.
The Medical Assessor was required to clinically assess Mr Radakovic as he presented on the day of the examination, taking into account his relevant medical history and all available relevant medical information.[2] He was then required to prepare a certificate which complied with s 352(2) of the 1998 Act:
“(2) A medical assessment certificate is to be in a form approved by the President and is to—
(a)set out details of the matters referred for assessment, and
(b)certify as to the medical assessor’s assessment with respect to those matters, and
(c)set out the medical assessor’s reasons for that assessment, and
(d)set out the facts on which that assessment is based.”
[2] Guidelines paragraph 1.6.
The form approved by the President does alert the Medical Assessor to comment briefly on other reports, though that is not one of the essential elements of s 352(2).
The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. The presumption of regularity applies to presume that the Medical Assessor has appropriately considered the material necessary to issue a MAC. In Bojko v ICM Property Service Pty Ltd [3] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[3] At [36].
It was not necessary for the Medical Assessor to summarise each piece of evidence or comment on every report in the file and he was not required to choose between the assessments made by other medical examiners.
In State of New South Wales (NSW Department of Education) v Kaur[4] (Kaur) Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[4] [2016] NSWSC 346.
The Medical Assessor’s task is different to that of an assessor under the various motor accidents legislation and the guidelines which apply to those assessments. The guidelines highlighted in AAI v Fitzpatrick[5] on which Mr Radakovic relied, specifically require the assessor to review all available medical evidence.[6] That review is important in context because the assessor is making a determination as to causation of the injuries. In a workers compensation claim, causation will generally be determined by a Personal Injury Commission member before the referral. Case law about the obligation of an assessor to comment on medical evidence in a motor accident claim has little relevance to this claim.
[5] [2015] NSWSC 1108 (Fitzpatrick).
[6] Fitzpatrick at [17], [20] and [29].
While Mr Radakovic’s statement provided relevant background, the Medical Assessor was required to take a detailed history from Mr Radakovic on the day of the examination. The Medical Assessor summarised the history he obtained with respect to the injury and treatment and showed that he had taken it into account in forming his diagnosis. He described the significant incident on 8 February 2019 in some detail and set out the impact of that incident on Mr Radakovic and the treatment he undertook. The Medical Assessor noted that Mr Radakovic was involved in eight subsequent near misses, which is consistent with the timeline which appears in the Application to Resolve a Dispute as well as Mr Radakovic’s statement. Contrary to Mr Radakovic’s submissions, the Medical Assessor did in fact note the nature of the traumatic incidents and summarise his treatment, including that by Dr Smith and Dr Kuljic, psychiatrists, and his psychologist, Dr Pineda.
Mr Radakovic said that the Medical Assessor should have commented on Dr George’s report dated 13 December 2021. The content of that report shows that Sydney Trains obtained it to give consideration to whether Mr Radakovic was able to fulfil the inherent requirements of his position. It was not relevant to the task that the Medical Assessor was required to perform in assessing permanent impairment. Similarly, the Medical Assessor noted the treatment provided by Dr Pineda.
We do not accept that the Medical Assessor erred in the way he dealt with the evidence in the file.
Assessment under the PIRS
As Campbell J said in Kaur, the Medical Assessor was required to set out his path of reasoning. While he clearly did that when forming his diagnosis, his reasons for assessment under each of the disputed PIRS tables is less clear.
Each of the PIRS tables is assessed separately. An activity must be assessed to the appropriate scale – Ballas v Department of Education[7] (Ballas).
[7] [2020] NSWCA 86.
Social and recreational activities
With respect to social and recreational activities the Medical Assessor said:
“Mr Radakovic is withdrawn and does not have a lot of enjoyable activities. However he is able to leave the house and walk his dog. He is able to spend time at other people’s homes with their dogs. He is able to go out for an occasional dinner. He is able to go to the club. This is consistent with mild impairment.”
The activities on which the Medical Assessor relied to assess Mr Radakovic as having a mild impairment for social and recreational activities are essentially solitary pursuits. The social and recreational activities table refers to “social activities that are age, sex and culturally appropriate.” Bell P and Payne JA said in Ballas that the table “looks to the injured worker’s degree of participation in such activities” and their interaction with others.[8]
[8] At [100].
The Medical Assessor’s statement that Mr Radakovic does not have a lot of enjoyable activities suggests more than a mild impairment.
Mr Radakovic said that the assessment was incorrect because he made excuses not to see people, because he has not been able to maintain a relationship and because he argues with his mother. The impact on his relationships is to be assessed under social functioning rather than social and recreational activities.
As shown by the history that Dr Andrews obtained, Mr Radakovic has very little social contact with other people outside his family, in significant contrast to his description of his life before the injury. He is actively avoidant of situations in which he may have to interact with others.
We adopt Dr Andrews’ assessment and consider that Mr Radakovic has a moderate impairment and should be assessed in class 3.
Travel
The Medical Assessor assessed Mr Radakovic in class 2 for travel, saying:
“Mr Radakovic drives short distances and uses Uber but does not utilise public transport. He needs help for longer distances. There is a slight restriction. This is consistent with mild impairment.”
Though Mr Radakovic’s submissions said that the Medical Assessor’s assessment with respect to travel was challenged, no substantive grounds were relied on. We note that the Medical Assessor’s assessment was higher than that of Dr Smith, qualified for Mr Radakovic, who assessed him in class 1 in his report dated 12 December 2022.
The Medical Assessor’s assessment in class 2 was open.
Social functioning
As noted above, Mr Radakovic relied on the same facts in respect of social and recreational activities and social functioning to argue that the Medical Assessor erred. Table 11.4 measures the ability to form and maintain relationships. Assessment in class 2 contemplates that relationships may be strained and that there may be arguments. The examples in the Guidelines are:
“Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The Medical Assessor assessed Mr Radakovic in class 2 and said:
“Mr Radakovic is able to have a good relationship with his mother and children. He has a reasonable relationship with his ex wife. He is certainly withdrawn from friends but does have one close friend. This is consistent with mild impairment.”
The Medical Assessor did not set out a detailed history of the impact of the injury on Mr Radakovic’s personal relationships. He omitted to record the arguments he has with his mother. While the Medical Assessor was not required to agree with the assessments made by others, it is relevant to note that Dr Smith also assessed Mr Radakovic in class 2, noting the strain in his relationships.
The history obtained by Dr Andrews is consistent with class 2 and we adopt his assessment.
Concentration, persistence and pace
The Medical Assessor assessed Mr Radakovic in class 2 and said:
“Mr Radakovic is able to focus for seventy-five minutes throughout today’s assessment. He reported subjective problems with concentration and attention. This would be in keeping with anxiety or apathy. This would be consistent with mild impairment.”
The submissions refer to Mr Radakovic’s lack of motivation to undertake tasks such as going to a medical appointment and his tiredness, lethargy and stress. Table 11.5 does not measure motivation. Similarly, Mr Radakovic’s submission about his perception of his ability to work is not relevant to the assessment of concentration, persistence and pace.
The history on which the Medical Assessor relied is brief but it is important to remember that the interview provided an opportunity for him to form his own opinion as to Mr Radakovic’s ability to concentrate and his ability to maintain concentration for the duration of the interview (persistence). He was able to assess the manner and speed of Mr Radakovic’s responses to the questions asked (pace).
Mr Radakovic’s submission that he was able to “sit idle for 75 minutes and at times answer questions” misunderstands the nature of a psychiatric assessment and the skills and experience that the Medical Assessor was required to draw on throughout the interview. Dr Andrews’ reference to Mr Radakovic’s ability to engage without distraction or loss of focus and the fact that he did not need redirection are examples of the observations which a Medical Assessor is required to make.
The Medical Assessor’s assessment in class 2 was open in the exercise of his clinical judgement.
Assessment
We accept that the Medical Assessor erred in his assessment of Mr Radakovic’s social and recreational activities.
There was no appeal with respect to the adjustment of 1% that the Medical Assessor made for the effects of treatment. An aggregate score of 15 with a median of 3 using the PIRS converts under Table 11.7 to 15% WPI. The addition of 1% for the effects of treatment results in a total assessment of 16%.
We have determined that the MAC issued on 29 May 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W2196/23 |
Appellant: | Joseph Radakovic |
Respondent: | Sydney Trains |
Date of Determination: | 2 November 2023 |
Examination Conducted By: | Dr Douglas Andrews |
Date of Examination: | 2 November 2023 |
The workers medical history, where it differs from previous records
Mr Radakovic confirmed that the history provided to the MA Dr Ng was substantially correct. He continues to live with his mother and half-brother, who has schizophrenia, but they have purchased a home at Tambaroora near Mudgee on 100 acres. They sold their residence 2 weeks ago and intend to relocate soon.
He has a 21-year-old son and 31-year-old daughter who live in Sydney.
Mr Radakovic still consults his psychiatrist Dr Blagoje Kuljic, and his psychologist Ms Jane Pineda, monthly. He continues on fluoxetine 20 mg daily and melatonin. There had been no changes to his treatment plan.
Additional history since the original Medical Assessment Certificate was performed
Current symptoms:
Mr Radakovic described emotional numbness that he believes has been a side effect of his antidepressant medication. He has a pervasively low mood without diurnal variation but reactive to circumstances. He said, “I feel sad and guilty.” Referring to the train accident death that caused a young man’s death, he said, “I often see his face as I saw it on the day of the accident. … I have no positive outlook; I can’t envisage a future.” He looks forward to and can enjoy caring for his dogs or those of his daughter and ex-wife.
He is often anxious, especially when away from home or encountering traffic. He has panic symptoms 3 or 4 times a week, evidenced by tachycardia, chest tightness and paraesthesia. He is hypervigilant, often sensing that he is being watched or followed.
He is irritable and frequently argues with his mother, saying things he regrets and then apologising.
He has somatic symptoms such as nausea and a feeling of having loose bowels but without diarrhoea.
He has subjective problems with short-term memory.
He denied thoughts of self-harm or suicide.
He has a disturbed sleep routine, going to bed between 8 PM and 2 AM, with initial and middle insomnia. He often has nightmares relating to risk while in command of a train.
His appetite is “non-existent”, and he eats a poor-quality diet. He has lost 5 kg since his assessment with Dr Ng in May.
He is not in a relationship and has low libido and sexual dysfunction.
Social activities/ADL:
Mr Radakovic rises each morning between 7 and 7:30 AM. He makes coffee for himself, his mother and his brother and eats a protein biscuit. He spends some time playing with his 2 dogs and has a cigarette.
About 3 days each week, he takes his dogs for a one-hour walk around the block or to a local park.
He drives 11 km to the house of his ex-wife, where he looks after the 5 Chihuahua dogs of his ex-wife and daughter. He spends the day at her home playing with the dogs or watching television. For example, he enjoys the sitcom Everybody Loves Raymond. He doesn’t watch movies because he struggles to follow the plot.
His mother does all the housework and meal preparation. Mr Radakovic may go to the shops but does most shopping online.
He showers 3 to 4 times weekly and wears the same clothes for 4 to 5 days.
Before becoming unwell, he was socially active, attending parties, cafés and restaurants. He enjoyed going on motorbike runs with friends and had a hobby of buying and selling cars and motorcycles.
He has maintained a friendship group of about 5 people but no longer has regular direct contact with them. He has seen his best friend in the group once in the last year, whereas before, they got together weekly. He keeps in touch with others, primarily by SMS. He refuses invitations to outings; for example, friends contacted him recently to see them at Oktoberfest, but he felt unable to join them.
He will go to a local club or pub every couple of weeks to play poker machines for up to 4 hours. He chooses late hours when the clubs are likely quiet and avoids talking to other patrons. Even if he sees someone he knows, such as an ex-work colleague, he actively avoids them.
He sold his motorcycle because he had used it for short runs only 3 times in the last 2 years and never in company.
He has seen his son 3 times in the last year on occasion, such as a birthday or Christmas. They get together but don’t go out.
He can travel independently locally and has recently travelled twice to Tambaroora, about 3 1/2 hours, with his mother and brother. He was comfortable on the trip and familiar with the Mudgee area. The trips were to inspect the property that they plan to live on.
His relationship with his mother is strained, but she remains caring and supportive. His half-brother tends to keep to himself, but they get on well. He has good relationships with his children, is allocable with his ex-wife and has good if more distant, relationships with his 5 friends.
Mr Radakovic has never been interested in reading. His hobby had been buying and selling cars and motorcycles, but he no longer does so. He can do some home maintenance; for example, he recently painted the sunroom in the house. He found it stressful, and it took longer than it usually would. He manages his own finances.
When he relocates, he plans to live in a container home adjacent to the home of his mother and half-brother.
He has done no paid or voluntary work since leaving Sydney trains. He worries about his future because of his difficulties with managing stress and emotions and believes he will struggle to meet deadlines and targets.
Whole person impairment:
The appellant challenged the original MAC on 4 of the 6 categories. My assessment of these are as follows:
Social and recreational – class 3
Mr Radakovic no longer socialises with friends and refuses invitations to outings or events. He goes to clubs or pubs to play the pokies every couple of weeks but avoids other patrons and will leave rather than interact if he bumps into somebody he knows. He no longer goes on motorcycle runs and has sold his motorbike because it was being underused.
Travel – class 2
Mr Radakovic is independent with local travel and can travel further distances to familiar areas in the company of his mother and half-brother. He is anxious away from home, and having his mother’s support is needed on longer trips.
Social functioning – class 2
Although there is strain in his relationship with his mother, he remains close to her, his half-brother, his children, and 5 friends. He has maintained an amicable relationship with his ex-wife. He avoids social contact with friends and is, therefore, more isolated.
Concentration, persistence and pace – class 2
Mr Radakovic can watch sitcoms but finds it more challenging to follow the characters or plot in a movie. He has never been interested in reading. He has given up his hobbies but has been able to complete home maintenance tasks such as painting a room. He manages his own finances. During my 70-minute interview, he gave a detailed account without apparent attentional or cognitive difficulties.
The ratings for self-care and personal hygiene, and employability were not challenged on appeal. For the four appealed domains, my assessment agrees with the MA except for social and recreational activities. With a class 3 rating variation, Mr Radakovic has an aggregate of 15 and a median of 3, equating to a 15% WPI.
Findings on clinical examination
Mental State examination:
Mr Radakovic is a Croatian man who presented casually attired in a T-shirt, with short cropped hair and a beard. I assessed him for 70 minutes by Videolink in his home. The connection quality was adequate to do a comprehensive assessment.
He said he was anxious about the interview, and he appeared nervous. He was cooperative and engaged throughout.
There was no evidence of any disorder of thought-form or perception.
He gave a good account of his history without obvious distraction or loss of focus. He did not need redirection.
At the end of the interview, he agreed that we had covered everything necessary and that he had nothing further to add.
Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2196/23 |
Applicant: | Joseph Radakovic |
Respondent: | Sydney Trains |
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 Bradley Ng 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/s % WPI (after any deductions in column 6) |
| Psychological injury | 16 March 2021 | Chapter 11 | N/A | 16 | 0 | 16% |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
6
0