Rily v Tandem Towing Pty Ltd
[2022] NSWPICMP 290
•15 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Rily v Tandem Towing Pty Ltd [2022] NSWPICMP 290 |
| APPELLANT: | Michael William Rily |
| RESPONDENT: | Tandem Towing Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Medical Assessor Julian Parmegiani Medical Assessor Michael Hong |
| DATE OF DECISION: | 15 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against 8% whole person impairment (WPI) assessment for psychological claim; whether Medical Assessor (MA) made demonstrable errors in class evaluations for social and recreational activities, concentration, persistence and pace, and employability; unanimous finding of class 3 by experts on both sides of the record; MA found class 2 for each; Held – MA function not arbitral or adjudicative; Western Sydney v Chan referred to; Wingfoot Australia Pty Ltd v Kocak cited; obligation to show more than mere disagreement on which reasonable minds might differ; Ferguson v State of New South Wales and Jenkins v Ambulance Service of NSW referred to; class 2 confirmed for each category except employability; appellant back at work full time but as an allocator of work and not previous work as a truck driver, which his disorder prevented him from doing; class raised to 3; Medical Assessment Certificate revoked, 9% WPI substituted. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 March 2022 Michael William Rily, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 February 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) 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 10 November 2021 this matter was referred to an MA for an assessment of WPI caused by a psychiatric/psychological injury that occurred on 12 September 2019.
The MA took a history that in a work accident in July 2019 Mr Rily fractured his ribs and had six weeks off work. He was about to return to work when he was told by Tandem Towing Pty Ltd’s (the respondent) officer to telephone the respondent’s solicitor, who described a number of conditions that was to be applied to his return to work.
Mr Rily’s statement explained that he went to work on 11 September 2019 but was told to go home[1]. On Thursday 12 September 2019 he commenced driving as a passenger with another employee but when told to drive an older truck with worn out suspension he demurred. He then received another telephone call from the solicitor and was told to drive the older truck. He was again telephoned by the solicitor later that day and was berated as being a disruptive trouble maker, and that he had caused a major upheaval within the respondent – descriptions that were “new to me” and which were contrary to his relationship with the employer before he fractured his ribs. After the conversation continued with further demeaning remarks from the solicitor the call ended. The employer’s manager then approached the appellant some 10 minutes later and said there was to be a meeting at 8.00am the following day. Mr Rily went home that day feeling stressed and anxious and did not return to work.
[1] Appeal papers p 52.
His general practitioner (GP) referred to him psychologist Ms Tracey Durrant in around October 2019, but treatment has been sporadic as a result of the COVID pandemic. He had been prescribed antidepressant medication.
Mr Rily had a work trial with another company, Fleet Towing, where he worked for about three months in late 2020. He commenced full time on 10 February 2021, where he remains employed as an allocator of work to truck drivers. His anxiety prevents him from driving trucks.
The MA found a WPI of 8%
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties
The appellant did not seek to be re-examined by an MA who is a member of the Appeal Panel.
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.
SUBMISSIONS
Both parties made written submissions which 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 (Vegan) 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 appellant challenged the assessment by the MA of three of the six categories within the Psychiatric Impairment rating Scale (PIRS) provided for the assessment of WPI pursuant to chapter 11 of the Guides.
These categories were “social and recreational activities,” “concentration, persistence and pace,” and “employability.”
The MAC
The MA found that Mr Rily was consistent in his presentation and that he did not appear to be exaggerating or minimising his condition.[2] The MA noted Mr Rily’s current work history:[3]
“Mr Rily had a work trial back at another tow truck company, Fleet Towing, which he had worked for previously for three months in late 2020. He started working fulltime as an allocator of work for Fleet Towing on 10 February 2021. He remains in this position. He said that he does not drive trucks anymore because he feels very anxious. He said his employer asked him to drive a truck on one occasion but he had found this very stressful and has not done it again.”
[2] Appeal papers p 28.
[3] Appeal papers p 26.
In recording Mr Rily’s present symptoms, the MA noted:[4]
“Mr Rily said that he is ‘still not a 100%’. He still feels more depressed than he used to and is occasionally tearful. He reports having reduced confidence and he gave me an example of this in that he has not ridden his motor bike for the last two years. He reports having less pleasure and enjoyment in life but likes spending time with his family, including with his grandchildren, and he enjoys gardening. He said he does not like socialising with people and prefers to be at home….”
[4] Appeal papers p 26
The MA considered Mr Rily’s social activities of daily living. He noted:[5]
“Mr Rily lives in his own home in Moorebank with his wife and her stepfather who lives in a granny flat under the house. His wife does most of the shopping, but he helps her at times now that he has increased confidence in being outside the home in these settings. His wife has always done the cooking. She does the housecleaning. His father-in-law does the clothes washing. He does the outside home maintenance including the lawn mowing, gardening and swimming pool maintenance. He eats regularly, three meals a day. He showers and changes his clothes every day. He has let his beard grow but otherwise keeps his balding hair well-trimmed. He has lost interest in riding motorbikes as he is less confident now in doing so. He does some gardening and has helped with some construction work on his son’s home. He occasionally goes out with his wife for coffees or for drives with other members of the family. He still keeps in contact with his family by either visiting them at their homes or they will come to his home.”
[5] Appeal papers p 27.
The MA considered the opinions of the medico-legal experts at [10c][6]. It is convenient to reproduce his comments in paragraph form.
“….[Dr Peter Anderson, psychiatrist, the appellant’s expert] gave Mr Rily a final whole person impairment rating of 16%. Where Dr Anderson differed from me were in his ratings for Social and Recreational Activities where he rated Mr Rily a Class 3, whereas I have rated Mr Rily a Class 2. I rated Mr Rily a Class 2 as his main social activities before the work injury were in socialising with his family, including his children and grandchildren. He has continued to be very actively involved with his family, visiting them at their homes and them coming to him at his home; going for drives with his family in the car, for example to the beach at Wollongong; and helping his sons with construction work at their homes. Mr Rily has lost interest in riding a motorbike which was a solitary activity in any case as he did not belong to a club or group of riders.
Dr Anderson rated Mr Rily a Class 3 for Concentration, Persistence and Pace whereas I have rated him a Class 2. I rated Mr Rily a Class 2 as he reports being able to concentrate for up to 15 minutes in administrative tasks in his work as an allocator for a tow truck driving company, including tasks such as preparing invoices. He said that he is able to concentrate for up to 30 minutes whilst doing home maintenance work around his home and is able to concentrate for up to 60 minutes when driving before needing to take a break. He was able to focus and answer questions clearly and in detail for the 50-minutes duration of the assessment.
Dr Anderson rated Mr Rily a Class 3 for Employability whereas I have rated him a Class 2. I rated Mr Riley a Class 2 as for the past 12 months he has been working fulltime as an allocator of work for a tow truck driving company. I believe this job requires comparable skills and intellect compared to his pre-injury job except that he does not have to drive a tow truck. I note that he had worked in this position previously for the same company. Therefore, I believe that Mr Rily’s impairment in this category falls into Class 2 rather than Class 3. …”
[6] Appeal papers pp 29-30.
The MA also noted the report of Dr Ben Teoh, psychiatrist, retained by the respondent employer, dated 14 September 2021.[7] The MA said, again reproducing his comments in paragraph form:
“Dr Teoh gave Mr Rily a whole person impairment rating of 11%. Where he differed from me in his ratings were in the ratings for Self Care and Personal Hygiene where he rated Mr Rily a Class 1 whereas I have rated him a Class 2. I rated Mr Rily a Class 2 on the basis that he still depends on his wife to do most of the shopping because of his anxiety and fear of having panic attacks in crowded situations.
Dr Teoh rated Mr Rily a Class 3 for Social and Recreational Activities whereas I have rated him a Class 2 for the reasons I have outlined above….
Dr Teoh rated Mr Rily a Class 3 for Concentration, Persistence and Pace whereas I have rated him a Class 2 for the reasons I have outlined above.
Dr Teoh rated Mr Rily a Class 3 for Employability whereas I have rated him a Class 2 for the reasons I have outlined above…”
[7] Appeal papers p 30.
SUBMISSIONS
The appellant worker
The appellant worker submitted that the body of the MAC itself was “internally inconsistent” as the three challenged assessments did not ‘align’ with either the information obtained during examination from Mr Rily, or the “available evidence”.[8]
[8] Appeal papers p 32.
Social and recreational activities
It was submitted that the MA did not take into account Mr Rily’s reaction to group settings and his concerns with family groups. It was alleged that the MA had failed to question Mr Rily about them, or to properly engage with Dr Anderson’s observation that Mr Riley felt strange and wandered off to avoid the group.
We were also referred to comments made by the MA in the body of his report that Mr Rily’s social activities, which had previously been socialising with the family, had continued in various ways that were described above. The comments by the MA that Mr Rily did not like socialising with people and preferred to be at home were referred to.
It was also submitted that the MA’s failure to recognise motorbike riding as a recreational activity was an error. The MA had disregarded the motorcycle riding because it was done in solitude and not with a club, which failed to take into account the requirement in the Guides to take account of cultural norms and activities.
We were also referred to the class 3 assessment by Dr Ben Teoh. The assessment by the MA on the available evidence was inconsistent with his finding that the appellant had been consistent in his presentation.
Concentration persistence and pace
It was submitted that the MA noted frequent lapses in concentration and interference with the normal activities of Mr Rily’s life at home. We were referred to Dr Anderson’s report again and his opinion that Mr Rily gave “a compelling account of interferences with work functions and his normal activities at home due to concentration lapse.”
The appellant referred to [10c] of the MAC where the MA explained why he differed from Dr Anderson and Dr Teoh’s classification, submitting that it was “unclear” whether the MA had taken into consideration the accepted history of slowing and lack of persistence. The MA had again failed to “elaborate” on his finding that the appellant could drive for 60 minutes before needing to take a break, and contrasted this finding with the history taken by Dr Anderson that the appellant was avoidant about driving.
Reference was also made to Dr Anderson’s opinion regarding other aspects of this category. Similarly, reference was made to Dr Teoh’s observation that the appellant had poor concentration and had been pre-occupied with negative thoughts.
The opinions of Dr Anderson and Dr Teoh were referred to as “available evidence,” and the appellant submitted that the MA’s findings had “been inconsistent” with that evidence.
It was submitted that the totality of the evidence warranted a class 3 assessment, as Mr Rily was said to be unable to follow complicated instructions and that the matters mentioned by the MA involved simple instructions. It was submitted that Mr Rily could only focus on intellectually demanding tasks in his workplace for up to 15 minutes which was less than the 30 minutes required to place him in class 2.
We were referred to comments by Dr Teoh of a general nature that Mr Rily had “poor concentration and persistent preoccupation and negative thought” and that he worried about his future.
It was noted by the appellant that Dr Teoh also assessed the appellant with a class 3 and we were again referred to the MA’s acceptance that Mr Rily was not exaggerating or minimising his clinical condition.
Employability
We were referred to the MA’s commentary about Dr Anderson’s report and particularly that he had been given a class 3 assessment by Dr Anderson. It was submitted that the opinions of Dr Teoh, Dr Anderson and the MA were similar to one of the class 3 examples given in the guides, namely, that a person could not work at all in the same position.
The appellant acknowledged that the MA had noted that Mr Rily no longer drove trucks because he felt very anxious. The assignment of a class 2 value was accordingly inconsistent with the available evidence, the appellant again submitted.
Legal principles
39.We were referred to the authorities of Glen William Parker v Select Civil Pty Limited[9] Jenkins v Ambulance Service of NSW[10]. These authorities will be considered below, but the appellant acknowledged their import that a mere disagreement was not sufficient to demonstrate error that was susceptible to judicial review.
[9] [2018] NSWSC 140 (Parker).
[10] [2015] NSWSC 633 (Jenkins).
The appellant acknowledged that whilst the assessment was very much dependent on the clinical observations by the MA, the evidence referred to in the appellant’s submissions had not properly been considered in context, and the evaluation was accordingly compromised to the extent that the assessment was reviewable, as we understood the appellant. The MA’s evaluation constituted appealable error, it was argued, as the appellant’s grounds of appeal amounted to more than a mere disagreement.
Further error was alleged on the ground that the MA had not given a sufficient explanation for his assessment where more than one conclusion was open on the facts, which we assume was a reference to the dicta in Vegan that we have referred to at the outset of these reasons.
Respondent
The respondent, in a thorough and exhaustive survey of the appellant’s submissions and the evidence upon which he relied, submitted that no error had been demonstrated in relation to the assessment of any of the categories appealed against.
The MA had specifically dealt with Dr Anderson’s report, the respondent submitted, and a full and reasoned explanation had been given with regard to his differing assessments from both Dr Anderson and Dr Teoh.
The respondent referred to those passages in the MAC that dealt with Mr Rily’s duties as an allocator, pointing out that Mr Rily was working in a full-time capacity in a similar industry to that which he had been employed at the time of his accident.
DISCUSSION
The PIRS
The PIRS is established as the rating criteria 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.
Chapter 11.12 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.”
The assessor is required to classify each category, and to apply the resulting scores as set out in chapter 11.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[11] 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 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’.
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[12]. 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].”
[11] [2017] NSWSC 887 (Ferguson).
[12] [2015] NSWSC 633.
In Parker, 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])…”
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.”
Discernment
The appellant acknowledged the force of the above authority, as indicated. His appeal included a pre-amble that the body of the MAC was “internally inconsistent,” as the MA’s assessments did not ‘align’ firstly with the information he obtained from the appellant during the examination, and secondly, with the “available evidence.”
The first proposition must be rejected. The appellant did not refer to the basis for such a submission. The assessment process is not recorded, and we were unable to discern in what respect the report of the examination was said to be ‘misaligned’, or inconsistent. No submissions were put to us that what the MA recorded in the body of the MAC was inconsistent with what he had been told in the course of the examination, neither did the appellant refer to the exerts from the body of the MAC that it relied on to illustrate such inconsistency.
Secondly, as we will demonstrate in respect of each impugned category, the description of the findings of other experts at different times, whilst being “available evidence” as to the opinions formed by such experts, is not binding on an MA.
In Western Sydney Local Health District v Chan[13] Adams J referred to dicta of the High Court:
“In Wingfoot Australia Pty Ltd v Kocak [citation omitted] the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel’s task in that case is analogous to the role of the [MA] under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
‘[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied 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 a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [authority omitted]. 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.
[48] The reasons that [the relevant Victorian legislation] obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.’”
[13] [2015] NSWSC 1968 at [13].
We now turn to the disputed assessments.
Social and recreational activities
Table 11.2 of the Guides provides relevantly:
“Table 11.2: Psychiatric impairment rating scale – social and recreational activities
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 MA assessed a class value of 2. He said:[14]
“Mild impairment. Mr Rily said that he had always been very involved with his family as his main social interest before his work injury. He continues to visit his family at their homes frequently and his family come to visit him at his home. He goes for drives with his family for example to Wollongong to go to the beach. He has helped his sons with construction work at their homes. He lacks confidence to ride his motorbike which was a solitary activity as he did not belong to a club or group of riders.”
[14] Appeal papers p 32.
The MA took an accurate history of the appellant’s social activities, including that the appellant did not like socialising and preferred to be at home. The MA’s alleged failure to refer to Dr Anderson’s history that the appellant felt strange in social gatherings, was the basis of the allegation of appealable error.
The appellant did not submit that the findings relating to his social activities were incorrect, notwithstanding that the submissions spent some time in repeating what the MA had found them to be. It was not suggested that Mr Rily was not very actively involved with his family, or that he did not visit his family at their homes, or that his family did not visit him at his home. It was not suggested that Mr Rily did not go for drives with his family in the car to the beach, or that he did not help his sons with construction work at their homes. Neither did he suggest that his main pre-injury social activities were the same as he continued to be very actively involved in following his injury.
The highest the appellant could put his case was that the finding by the MA that the appellant did not like socialising with people and preferred to be at home was in such contrast to the observation by Dr Anderson that the appellant felt strange and wandered off so as not to maintain contact in group family social activities, that appealable error had been established.
The other matter relied on by the appellant was that he had lost his confidence to ride his motorbike which was described by Dr Anderson as a Harley Davidson. The MA discounted that activity as being a social and recreational activity on the basis that Mr Rily had not been a member of a motorcycle club and this was a solitary recreational activity, but we do not consider that distinction to necessarily be valid, with respect.
A person’s hobby such as riding a motorbike can be an activity that is usual within a person’s cultural background and age as a recreational activity. Mr Rily’s lack of confidence in that respect takes him out of a class 1 definition, but reasonable minds might differ as to whether this consequence warrants a class 2 or class 3 evaluation. This error accordingly does not elevate the issue beyond a mere disagreement.
The object of the rating scale is to assess the behavioural consequences of a psychiatric disorder, and whilst the descriptors given in each table are examples only, they do provide a guide which serves as a general indicator of the level of behaviour that might generally be expected. The MA had the benefit of being able to discuss these matters with the appellant, and, given the general description of Mr Rily’s social activities, his assessment of a mild impairment regarding the above matters was open to him.
Concentration persistence and pace
Table 11.5 provides relevantly:
“Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace.
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 MA found a value of class 2. He said:[15]
“Mild impairment. Mr Rily complains of reduced concentration. He is able to focus for up to 15 minutes at work in activities such as preparing invoices. He said that his managers are happy with his work performance. He said he is able to concentrate for up to 30 minutes on home maintenance activities at home such as mowing the lawn, doing small home repairs and maintaining his pool. He said that he is able to drive for about one hour before needing to take a break. He was able to focus for the 50 minutes duration of the assessment.”
[15] Appeal papers p 32.
The appellant submitted that the findings by Dr Anderson on 3 June 2021 and Dr Teoh on 14 September 2021 constituted “accepted evidence.” As indicated above, an MA is not bound by the opinions of other experts whose reports he is called on to examine.
Whilst Dr Anderson may have formed the view that in June 2021 there was a noticeable slowing and lack of persistence, the MA set out the facts on which he based his class 2 evaluation on 9 February 2022. Moreover, he acknowledged Dr Anderson’s assessment, and explained that he based his valuation on the information given to him by Mr Rily at interview.
In Dr Teoh’s case it was the same. Dr Teoh had found in September 2021 that Mr Rily had poor concentration and persistent pre-occupation with negative thoughts, but the MA acknowledged that opinion, and explained why he differed by referring to his explanation for differing from Dr Anderson’s view. It was implicit in his reasons that the moderate impairment assessed by Dr Anderson and Dr Teoh had improved to a mild impairment by the time the MA assessed Mr Rily.
There was no obligation for the MA to engage in detail with the findings of either Dr Anderson or Dr Teoh. His function was, as stated by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[16], to form and give his own opinion by applying his own medical experience and his own medical expertise.
[16] [2013] HCA 43 (Wingfoot).
The appellant has not demonstrated any misunderstanding of the facts by the MA, nor has his classification been shown to be glaringly improbable, and he has given a full explanation as to his reasons. There is a clear correlation with a class 2 value in Mr Rily’s capacity to prepare invoices as part of his full-time employment, and the complaint by Mr Rily of reduced concentration was noted.
The appellant submitted that the example given by the MA of his being able to prepare invoices for up to 15 minutes was at odds with class 2, which referred to an ability to focus up to 30 minutes on intellectually demanding tasks. The descriptors for each class, as we have mentioned, are to be used as examples only, and act as a guide in assessing the level of impairment. The MA also referred to other capabilities Mr Rily spoke of, such as the home maintenance activities he performed for up to 30 minutes.
We find no reviewable error in the assessment of this category by the MA, and the class 2 value was open to him.
Employability
Table 11.6 provides relevantly:
“Table 11.6: Psychiatric impairment rating scale – employability
Class 2 Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3 Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”
The MA found a value of 2. He said:[17]
“Mild impairment. Mr Rily is working in a fulltime position as an allocator of work at a tow truck driving company. This is a responsible position that involves allocating jobs to tow truck drivers and other administrative tasks such as preparing invoices. He finds this work less stressful than his previous work as a tow truck driver as he does not have to drive a truck in this job. His current position is a position he previously worked in for the same company before he worked for Tandem Towing Pty Ltd as a truck driver.”
[17] Appeal papers 33.
The MA noted Mr Rily works for the same organization, as a full-time allocator. He tried to drive a truck and could not tolerate his anxieties. In considering class 2 in the Guides, the Panel noted Mr Rily is not working full-time in a different environment. His new duties are not determined to be of comparable skills and intellect as his pre-injury job, as they are significantly different roles. He clearly cannot work in the same position since his psychological injury. As Mr Rily’s functioning in this category is not compatible with any of the descriptors in class 2, the Panel concluded a rating of 2 is not open to him and the Panel rated 3.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 February 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
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 Dr Patrick Morris 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 NSW workers compensation guidelines | 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) |
| Psychiatric/ Psychological | 12/09/19 Deemed | Chapter 11, WorkCover Guides | N/A | 9% | N/A | 9% |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
John Wynyard
Arbitrator
Julian Parmegiani
Approved Medical Specialist
Michael Hong
Approved Medical Specialist
15 July 2022
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Michael William Rily | Claim reference number (if known) | W5207/21 |
| DOB | 9 September 1963 | Age at time of injury | 56 years old |
| Date of Injury | 12 September 2019 | Occupation at time of injury | Tow Truck Driver |
| Date of Assessment | 9 February 2022 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1.Persistent Depressive Disorder with Anxious Distress. | |
| Psychiatric treatment | Takes medication Escitalopram 20mg daily; sees psychologist for therapy; sees GP monthly. | |
| Is impairment permanent? | Yes | |
| PIRS Category | Class | Reason for Decision | ||||||||
| Self Care and personal hygiene | 2 | Mild impairment. Mr Rily showers and changes his clothes without prompting. He shares some of the household chores with his wife and she has always done the cooking. However his wife does most of the shopping because he lacks confidence going to shopping centres. He eats regularly and generally looks after his appearance and was well-groomed at the assessment. | ||||||||
| Social and recreational activities | 2 | Mild impairment. Mr Rily said that he had always been very involved with his family as his main social interest before his work injury. He continues to visit his family at their homes frequently and his family come to visit him at his home. He goes for drives with his family for example to Wollongong to go to the beach. He has helped his sons with construction work at their homes. He lacks confidence to ride his motorbike which was a solitary activity as he did not belong to a club or group of riders. | ||||||||
| Travel | 2 | Mild impairment. Mr Rily said he is able to drive by himself the 15-minute trip from his home to work or the 25-minute trip to his daughter’s home on a known route. For longer distance driving, he prefers to be accompanied by his wife because of his anxiety and reduced confidence. He is not able to drive a truck anymore because of his reduced confidence and anxiety. | ||||||||
| Social functioning | 2 | Mild impairment. Mr Rily reported some strain in his relationship with his wife due to his psychological symptoms but said that their relationship remains good. He reports a good relationship with his children and grandchildren. He has lost some friendships due to his social withdrawal. | ||||||||
| Concentration, persistence and pace | 2 | Mild impairment. Mr Rily complains of reduced concentration. He is able to focus for up to 15 minutes at work in activities such as preparing invoices. He said that his managers are happy with his work performance. He said he is able to concentrate for up to 30 minutes on home maintenance activities at home such as mowing the lawn, doing small home repairs and maintaining his pool. He said that he is able to drive for about one hour before needing to take a break. He was able to focus for the 50 minutes duration of the assessment. | ||||||||
| Employability | 3 | Moderate impairment. See reasons of the Medical Appeal Panel | ||||||||
| Score | Median Class | |||||||||
| 2 | 2 | 2 | 2 | 2 | 3 | =2 | ||||
| Aggregate Score Impairment | Total | |||||||
| +2 | +2 | +2 | +2 | +2 | +3 | =13 | ||
| Impairment Percentage WPI from table 11.8: | 7% |
| Less pre-existing impairment if any: | Nil |
| Adjustments for effects of treatment: | 2% |
Final Impairment % WPI: | 9% |
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5
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