Rodger v Transport Workers Union
[2021] NSWPICMP 91
•16 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Rodger v Transport Workers Union [2021] NSWPICMP 91 |
| APPELLANT: | Grant Rodger |
| RESPONDENT: | Transport Workers Union |
| APPEAL PANEL: | Member Paul Sweeney Dr Douglas Andrews Dr Patrick Morris |
| DATE OF DECISION: | 16 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffering undisputed psychological injury appeals against the classification of a Medical Assessor in the PIRS categories of social and recreational activities, travel and concentration, persistence and pace leading to an assessment of 7% WPI; Ballas v Department of Education (State of NSW) considered and applied; Held- Medical Assessor erred in conflating social and recreational activities with separate category of social functioning; on reassessment panel determines 15% WPI; MAC set aside. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 January 2021, Grant Rodger (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Wallace Anderson, a Medical Assessor (MA), formerly an Approved Medical Specialist or AMS, who issued a Medical Assessment Certificate (MAC) on 11 December 2020.
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 WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). To avoid confusion, the panel has used the word category when referring to the areas of functional impairment in the Psychiatric impairment rating scale at Chapter 11.11 of the Guidelines.
RELEVANT FACTUAL BACKGROUND
The appellant was a long-term employee of the Transport Workers Union of NSW (the respondent). In the period prior to the onset of his psychological illness, he was employed as a lead union official at premises at Minchinbury. In this role he reported to the Assistant State Secretary, Mick Pieri, and to the State Secretary, Richard Olsen.
In the course of his employment, he received information that a union delegate had deliberately assaulted another delegate. He conveyed that information to his superiors. On
2 July 2019, he was directed by Mr Olsen to attend the boardroom of the respondent’s premises where he was confronted with two members of the national delegating committee, one of whom was vice president of the federal branch of the Union. He was accused of lying about the assault. He was told that his job was on the line. He was repeatedly threatened and told that another member of the Union had “thrown him under the bus”.Following this incident, the appellant sought medical treatment. He was diagnosed with a psychiatric condition, which the respondent accepted fell within the definition of “injury” in the Workers Compensation Act 1987 (the 1987 Act). He has not returned to work.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the 1987 Act. The appellant’s claim is based upon the opinion of a psychiatrist, Dr Richa Rastogi, who saw him on 5 March 2020 and prepared a report of that date for his solicitors. Dr Rastogi diagnosed the appellant as suffering from an Adjustment Disorder with Depressed and Anxious Mood. The doctor opined that the appellant suffered 17% whole person impairment (WPI) as a result of the injury. In completing the Psychiatric Rating Scale (PIRS), she assessed the six categories as follows:
Category
Class
Self-care and personal hygiene
2
Social and recreational activities
3
Travel
2
Social functioning and relationships
2
Concentration, persistence and pace
3
Adaptation
4
Dr Peter Whetton, a psychiatrist, saw the appellant on two occasions at the request of the respondent’s insurer. By a report dated 20 December 2019, the doctor also diagnosed adjustment disorder with anxiety and depressed mood. Dr Whetton thought that treatment for this condition was likely to continue for about six months. He stated that the effect of ongoing symptoms made it difficult to assess the appellant’s capacity to work. He noted, however, that the appellant was “prepared to try to return to pre-injury duties and should be considered capable of such”.
Dr Whetton saw the appellant again on 22 May 2020. He recorded that “with the length of time the work dispute had gone on the worse he had got”. He was of the opinion that a graded return to work program two to three days each week “should be anticipated”. He opined that given the ongoing treatment with a psychiatrist the appellant had not reached maximum medical improvement. In respect of the issue of permanent impairment, he stated:
“If one traverses the Permanent Impairment Rating Scale his level of impairment as a result of his psychiatric condition is modest and in the absence of MMI a calculation of WPI is not undertaken.”
As the differing assessments of permanent impairment by Dr Rastogi and Dr Whetton gave rise to a medical dispute as that term is defined by s 319 of the 1998 Act, the Registrar referred the dispute to a MA (formerly AMS), Dr Peter Anderson to assess the degree of permanent impairment, if any, as a result of the worker’s injury.
On 4 December 2020, Dr Anderson issued a MAC by which he certified that the appellant suffered 7% whole person impairment as a result of his psychiatric injury. He diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood. He classified the PIRS categories of self-care and hygiene, social functioning and employability in the same way as Dr Rastogi. However, he classified Social and recreational activities as 2, Travel as 1 and Concentration, persistence and pace at 2.
It is from the assessment of Dr Anderson that the appellant appeals.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that review, the panel determined that there was prima facie error in the manner in which the medical assessor assessed Social and recreational activities. In these circumstances, the panel considered that it was appropriate for the worker to undergo a further medical examination as requested by the appellant.
EVIDENCE
The appeal panel has before it all documents which were sent to the medical assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The parts of the MAC given by the MA that are relevant to the appeal are set out in the body of this decision.
FURTHER MEDICAL EXAMINATION
Dr Douglas Andrews of the appeal panel conducted an examination of the worker on 20 May 2021 and reported to the appeal panel.
Insofar as it is relevant, the report of Dr Andrews is as follows:
“The worker's medical history, where it differs from previous records
Mr Rodger continues to see his psychologist every two to four weeks and his psychiatrist every four to six weeks. He remains on fluoxetine 40 mg daily.
Current symptoms:
Overall, Mr Rodger's feels that his condition has become worse. His mood is low most of the time. He feels dispirited, tired, humiliated and worn out. He is irritable and angry. His motivation is lacking, causing difficulties with activation. He is anxious and bothered by intrusive negative thoughts about his past work and his circumstances. He has difficulties with concentration, attention and memory. While he is not suicidal, he believes that ‘people might be better off I wasn't here’. He is in bed by 9:30 PM but takes up to an hour to fall asleep. He sleeps fitfully and is bothered by nightmares, usually on themes of being under threat. He thrashes about during his dreams, and his wife now sleeps in another room. He eats a good diet, and his weight is stable.
Alcohol use:
He consumes about six stubbies of full-strength beer daily (more than eight standard drinks), sometimes substituting spirits or wine. Occasionally he drinks more. His drinking habit is long-standing, although he has had periods of prolonged abstinence.
Diagnoses:
The AMS had diagnosed chronic adjustment disorder with mixed anxiety and depressed mood, with a pre-existing and continuing alcohol use disorder. These diagnoses are consistent with the presentation.
Current function:
Mr Rodger often sits on the lounge in his underwear until his wife encourages him to dress. He showers every two to three days and changes his clothes. He helps with household chores, cleaning, tidying, washing clothes and mowing the lawn. He cooks dinner about three days a week. He occasionally misses meals but will usually substitute a brunch for breakfast and lunch on those occasions.
Each Wednesday, he goes grocery shopping with his wife. He has projects but has been unable to complete them. For example, he has been doing up an old lounge and working on motor vehicle repairs. The projects sit unfinished. He keeps bonsai but no longer actively develops or trains his plants. He merely waters them.
He enjoyed fishing, going to the club and socialising with friends, all activities that he has given up. He has two sons and five grandchildren. He may visit one of his son's homes to sit and talk or to see his grandchildren. He doesn't participate in outings with them.
He can travel within his local area but usually has his wife, Megan, with him when he goes out. Three months ago, he travelled with Megan to see a friend, a trip of about 100 km each way. He travelled to Parramatta for a medical assessment, also a long drive. He said, ‘If I'm going somewhere I feel comfortable, I'm good.’
He remains close to Megan, his wife of forty years, his sons and their families. He occasionally still sees friends, but less frequently than before. He doesn't go to recreational events with them. He has not lost friends but has diminished contact. He is uncomfortable talking about his circumstances because of a sense of shame. He no longer reads.
Although he has the TV turned on most of the time, tuned to Netflix, he doesn't pay attention to it or watch shows in a structured way. He plays solitaire on his phone for up to thirty minutes at a time. He believes that he has little prospect of employment. He gets anxious talking to other people and said, ‘I'm on the scrapheap; I'm done’
Whole Person Impairment:
Mr Rodger's had appealed the MAC of 11 December 2020 on the grounds of error in these categories in the Psychiatric Impairment Rating Scale:
a. Social and recreational activities,
b. Travel, and
c. Concentration, persistence and pace.
The AMS had determined a 7% WPI without deduction for pre-existing condition or adjustment for treatment effect. In sequence, his class ratings were 2, 2, 1, 2, 2, and 4. IME psychiatrist Dr Rastogi had assessed WPI in March of 2020 and had determined a 17% WPI. Her class ratings were 2, 3, 2, 2, 3, and 4. I reviewed Mr Rodger's history and assessed his current level of functioning across all six categories in the PIRS table. I note that it is six months since his last assessment, and some things may have changed; Mr Rodger stated that he felt that he had deteriorated to some extent.
The AMS and Dr Rastogi agreed on these categories:
d. Self-care and personal hygiene,
e. Social functioning, and
f. Employability. On these domains, my assessment is the same as theirs, and they were unchallenged in the appeal.
Social and recreational activities:
The AMS determined a Class 2 and wrote:
Mr Rodger reports social withdrawal. He is able to attend family functions with sons and grandchildren. He is able to do this by himself, not merely when accompanied. He lacks motivation for the pursuit of fishing but he manages to pursue some repair of old motor vehicles, some tinkering with old furniture, attention to lawns and bonsai gardening. Because of his ability to attend social functions alone he is regarded as having a mild rather than moderate impairment in this domain, according to the relevant guidelines. He indicates that he did not have friends before the workplace events and cannot be said to have lost friendships or that social interaction with friends has declined.
The AMS describes solitary activities, without a social element, when discussing vehicle repairs, tinkering with old furniture, attention to lawns and bonsai. In any case, these projects lie idle, and Mr Rodger struggles to re-engage with or complete them. He does not attend social functions alone. He visits family and usually sits and talks with one of his sons or his grandchildren. These people are very close to him, and his wife always goes with him. He occasionally sees friends but goes with his wife when he does so. She offers support and encouragement.
I determined a Class 3.
Travel:
The AMS rating was Class 1. He wrote:
Mr Rodger is able to travel locally without a support person and indeed he drove himself to Parramatta to attend the Workers Health Centre pre Covid. His impairment is therefore regarded as minimal at most. Mr Rodger can travel in the local area and to more distant venues when necessary. He has travelled to see a friend and to medical assessments. He usually travels with his wife but said he was comfortable travelling if he was going to somewhere where he felt safe. The avoidance is not about travelling per se; instead, it is about whether he is comfortable with where he will arrive. I consider that this is within the normal variation in the general population and a Class 1 is appropriate.
Concentration, persistence and pace:
The AMS determined Class 2 and wrote:
Mr Rodger does report a subjective impairment of concentration and he does report some slowing and distractibility with regard to his hobbies and pursuits including fiddling with old cars, tinkering with old furniture and bonsai gardening. His concentration was quite good at the time of psychiatric interview. On the information available a mild rather than moderate impairment rating is made, using the available guidelines. He would be able to undertake a basic retraining course or a standard course at a slower pace. He is able to focus on intellectually demanding tasks for up to 30 minutes. Indeed, he watches Netflix in this manner.
Mr Rodger is not engaging in a meaningful way with his hobbies. Projects are neglected and unfinished. He has no active engagement in bonsai, only watering his plants as necessary. He doesn't read and says that he doesn't engage with shows on Netflix except to watch aeroplanes taking off or trains moving. He said that he ignores the sound. There is no evidence that Mr Rodger could undertake a basic training course or a standard course at a slower pace. This supposition is unsupported. He does not engage in intellectually challenging activities. He plays solitaire for up to thirty minutes, but this is a task that requires little mental effort. I consider Class 3 to be appropriate in this domain.
Whole Person Impairment:
Considering everything before me:
a. Self-care and personal hygiene – Class 2
b. Social and recreational activities – Class 3
c. Travel – Class 1
d. Social functioning – Class 2
e. Concentration, persistence and pace – Class 3
f. Employability – Class 4
The median class rating is 3, the total is 15, and the WPI is 15%.
Additional history since the original Medical Assessment Certificate was performed There is no additional history available.
Findings on clinical examination
Mr Rodger was seen by videolink, on his own, in his home. The quality of the connection was excellent, and I felt able to do a comprehensive assessment. He presented as casually attired, bearded and wearing glasses. He appeared well-groomed. He was anxious about the interview and said he was depressed. His affect was restricted, consistent with his stated mood. He had no abnormality of perception or thought-form. He gave a reasonable account of himself throughout the interview. He expressed his sense of profound shame and humiliation about his circumstances. He is not actively suicidal.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but they have been considered by the panel.
In summary the appellant submits that the MA fell into error in his assessment of the PIRS categories of Social and recreational activities, Travel and Concentration, persistence and pace.
In respect of the assessment of Social and recreational activities, the appellant submitted that the MA’s reliance on the appellant’s engagement in repair of motor vehicles, tinkering with furniture and gardening was misdirected. “These activities are solitary, not social”. The appellant relied on the reasoning of the Court of Appeal in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas).
The appellant also asserted that the MA had erred in assigning a classification in this category by:
“treating the appellant’s relationships with family members as relevant to the ‘Social and Recreational Activities category’. Those relationships require assessment under the ‘Social Functioning’ category”.
He argued that the descriptors recorded in respect of this category contemplated the worker’s capacity to engage in society at large and participate in social events in which he is required to interact with others. The appellant continued:
“A person whose interaction with others is limited to seeing close family members cannot conceivably be considered to be participating in the ‘events’ contemplated by the foregoing classes of the Social and Recreational Activities category.”
The appellant submitted that close relatives are synonymous with “support persons”. A consideration of the descriptors in the category of social and recreational activities confirm that the events in which the worker participated “exposed the subject to other people who would not qualify as support persons”.
The appellant pressed the assessment of Dr Rastogi that the appellant suffered a moderate impairment. The appellant’s continued contact with close family members was a manifestation of his reclusiveness and his “need to avoid interaction with members of society”. The appellant submitted that this significant withdrawal could not be considered to be mild.
The extent of the impairment was demonstrated by the appellant’s evidence that he had lost desire to hang out with his family and friends. The appellant also alleged that the medical assessor “failed to provide reasons” for differing with Dr Rastogi in respect of her assessment of mild impairment under this category. He merely disagreed with Dr Rastogi’s assessment. The failure to provide reasons constituted an error.
In respect of Travel, the appellant asserted that his circumstances indicated that he fell within class 2 (mild impairment) rather than class 1 (no impairment) which had been assigned by the MA.
The appellant attacked the determination by the assessor that driving to attend the worker’s health centre at Parramatta was travelling to an unfamiliar area. He argued that:
“The AMS had no basis to treat travel to Parramatta as being to an unfamiliar destination.
As recorded in the appellant’s statement taken on 10 September 2019 [ARD 3-14], he worked at the respondent’s Parramatta office from September 2016 [ARD 5, paragraph 16] until March 2019, when the Parramatta office closed [ARD 7, paragraph 32].”
The appellant also alleged that the MA had failed to consider his ability to travel “at the time of the assessment of the appellant on 4 December 2020”. His reliance on the appellant’s ability to travel prior to March 2020 was “misconceived”. The appellant asserted that the MA should have assigned class 2 in respect of the category of Travel in accordance with the classification of Dr Rastogi.
In respect of Concentration, persistence and pace, the appellant alleged that there was error in assigning him to class 2 rather than class 3. He argued that the MA had relied upon the appellant’s concentration at the time of the psychiatric interview as decisive “without taking into account the evidence of the appellant’s chronic shortcomings in this category.” Further, the MA provided no explanation of his opinion that the appellant would be able to undertake “a basic retraining course or a standard course at a slower pace”. He submitted:
“The reader is merely presented with an unsubstantiated assertion which is at odds with the evidence of the appellant’s significant difficulties with concentration.”
In this respect the appellant referred to his statement of 17 September 2020, where he said that he was “constantly exhausted and sleeps all day”. It was “inconceivable” that a medical specialist could consider the appellant as being able to persist with a training course given his chronic sleep problem and constantly being exhausted.
The appellant described the reasoning of the MA in concluding that the appellant’s capacity to watch Netflix for up to 30 minutes was evidence that he was able to focus on intellectually demanding tasks as “astonishing”. He continued:
“There is just the generalised assumption by the AMS that any material on Netflix presents every viewer with an intellectually demanding challenge.”
Once again, the appellant submitted that the MA erred in not adopting the classification of
Dr Rastogi in respect of Concentration , persistence and pace namely that the appellant had a moderate impairment which supported a classification of 3.The appellant submitted that an error in the reasoning in the MAC could be remedied by a member of the panel re-examining the appellant in accordance with AMA 5 and the guidelines.
The respondent submitted that the appellant had not established that the MAC contained a demonstrable error or that WPI was assessed on the basis of incorrect criteria. The MA had utilised all the available information before him including contemporary medical evidence and the worker’s statement evidence to rate the injured worker’s level of functioning in each of the PIRS categories. It was open to the MA to determine what weight should be given to particular aspects of the evidence. The fact that another psychiatrist, Dr Rastogi, had reached a different assessment was of “little significance”.
After referring to the history recorded by the MA in the body of the MAC and in the PIRS rating form, the respondent submitted that he had:
“correctly classified the worker as presenting with a mild impairment in respect of social and recreational activities. The injured worker is able to undertake recreational activities such as his work with old cars and bonsai gardening, he continues to attend family events and indeed he attended a club for [sic] a friend for a beer the day prior to the AMS examination.”
In response to the appellant’s assertion that the MA had failed to provide reasons why he disagreed with Dr Rastogi it submitted that he was under no obligation to explain why
Dr Rastogi’s assessment was incorrect.In respect of travel the respondent noted that the MA had recorded in the MAC that the appellant “travels by driving a vehicle and is not inhibited in this activity.” That notation and the comments made by the MA in the PIRS rating form were entirely consistent with the comments made by Dr Whetton of 2 June 2020 that the appellant was “able to travel and drive his own”.
The respondent submitted that the appellant’s inability to travel throughout the COVID lockdown was irrelevant. There was no indication that the worker reported any other deficiency in travel than those recorded by the MA in December 2020. Once again, the fact that Dr Rastogi made a different assessment was of little weight. The respondent submitted that the assessment in the PIRS category of travel made by the MA did not disclose error.
In respect of Concentration, persistence and pace, the respondent pointed to the activities recorded by the MA which the appellant engaged in including cooking dinner and performing some jobs for his parents. Importantly, the MAhad recorded that the worker’s concentration was “quite good at the time of the psychiatric interview”. His conclusion that the appellant was able to undertake a basic re-training course or a standard course at a slower pace was reasonably open to the MA on the basis of his mental state examination and his history in respect of the activities in which the appellant engaged around his home. Thus, the history obtained by the MA was consistent with a finding of a class 2 impairment under the PIRS rating scale.
The respondent concluded by submitting that the findings and assignment of classes within the PIRS category was largely a matter within the clinical judgement of the MA. The assignment of classes within the 3 categories canvassed by the appellant did not demonstrate error or that the assessment was based on incorrect criteria.
FINDINGS AND REASONS
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in his application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from MA reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot, it was said that:
“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 give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
It is true, as the respondent submitted, that the fact that the appellant’s IME, Dr Rastogi assigned different classifications in the three categories challenged by the appellant is of little weight. In accordance with the reasoning in Wingfoot, the role of the MA is to form his own opinion in respect of classification in each category. Contrary to the appellant’s submission, he was not obliged to provide reasons as to why his opinion on classification differed from Dr Rastogi or any other medical practitioner whose opinion was in evidence in the matter.
At the preliminary conference, the panel was concerned that the MA had misdirected himself in his assessment of the PIRS category of Social and recreational activities. Specifically, the panel was of the opinion that the MA’s classification was founded on activities and relationships which were not relevant or not shown to be relevant to this category. While it must be the case that there is some overlap between the PIRS categories, in Ballas the plurality said this:
“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, i.e. 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 MA 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.”
51.Table 11.1 Psychiatric impairment rating scale - Social and recreational activities is as follows:
“Class I: 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.
Class 4: Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend but will go to a different room or garden when others come to visit family or flat mate.
Class 5: Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”
In allocating a class 2, the MA recorded the following reasons for his decision:
“Mr Rodger reports social withdrawal. He is able to attend family functions with sons and grandchildren. He is able to do this by himself not merely when accompanied. He lacks motivation for the pursuit of fishing but he manages to pursue some repair of old motor vehicles, some tinkering with old furniture, attention to lawns and bonsai gardening. Because of his ability to attend social functions alone he is regarded as having a mild rather than moderate impairment in this domain, according to the relevant guidelines. He indicates that he did not have friends before the workplace event and cannot be said to have lost friendships or that social interaction with friends has declined.”
The repair of motor vehicles, tinkering with furniture, and gardening appeared to the panel to be irrelevant to the task of assigning a class in the category of Social and recreational activities. It seems likely from the MA’s reasons that these are solitary activities which do not involve the appellant in leaving his home or in communicating with others. It is not evident that in performing these tasks he engages in social and recreational activities.
Table 11.2 seems to differentiate between a worker who regularly participates in social activities, which include belonging to clubs, associations and attending formal or informal events and one who never leaves his place of residence to engage in such activities. In Ballas at [100] the plurality (Bell P and Payne JA) said:
“The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities.”
The MA stated that the appellant’s impairment was mild because he was able to attend social functions alone. But these social functions were entirely with family or a close friend. There is some force in the appellant’s argument that the appellant’s children and grandchildren are “support persons” and it is understandable that the appellant is able to maintain his relationship with close relatives. Importantly, however, the appellant’s relationship with family and close friends squarely fall within the separate category of Social functioning (relationships).
In Ballas, the plurality said at [95] and [9]:
“In the present case, it was plainly “arguable”, to use the language of Vannini, that the MA took into account an irrelevant consideration in relation to the scale “social and recreational activities” when he made reference in his reasons to “[s]ees one friend regularly” (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled “Social functioning (relationships)” to which that conduct is more directly relevant.
Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the “Social functioning (relationships)” scale.”It is necessary, of course, for the appellant to establish a demonstrable error and not merely a basis for disagreement with the reasoning and certification of the MA. As the panel could not discern the basis on which the MA had included family visits in this category, it concluded that the MA probably based his classification in the category of social and recreational activities on irrelevant considerations and that this constituted demonstrable error. As the panel also had difficulties with the manner in which the MA assessed the other two categories in dispute, it concluded that it was appropriate that a member of the panel re-examine the appellant.
On receipt of the report of Dr Andrews, the panel reconvened and considered his opinion in respect of each of the categories in dispute in the context of the entirety of the medical evidence in the case including the reports of the respondent’s qualified psychiatrist,
Dr Whetton. The panel noted that the appellant reported to Dr Andrews that he remained under treatment for his condition, which he believed had worsened with the passage of time. In those circumstances, the opinions of specialist medical practitioners who saw the appellant some time ago may be of less weight.The panel noted that the appellant reported he had given up fishing, going to the club and socialising with friends. While he visited his children to see his grandchildren, he did not participate in outings with them. The panel concurred with the opinion of Dr Andrews that the appellant should be assessed as having a moderate impairment and assigned class 3 in respect of the category of Social and recreational activities. He is no longer actively involved in the limited social and recreational activities he pursued prior to the injury. He remains “quite and withdrawn”. His visits to his children do not involve engaging in social recreational activities.
Dr Andrew’s classification in respect of the category of travel is consistent with that of the MA and of Dr Whetton. The appellant’s submission that the MA failed to consider his ability to travel at the time of the assessment is not made out. As the respondent argued,
Dr Whetton had recorded that the appellant “travels by driving a vehicle and is not inhibited in this activity”. While the history of driving recorded by Dr Andrews is different in emphasis it is consistent with a classification of 1 in this category.Finally, on the basis of the history recorded by Dr Andrews the panel concluded in that the appellant suffered a moderate impairment in respect of concentration, persistence and pace. It is plausible that there has been some deterioration in his condition since the medical assessment in December 2020. It is evident, however, that the appellant does not read and does not engage with his hobbies. On the basis of his examination, Dr Andrews concluded that it was unlikely that he could undertake a basic retraining course or a standard course at a slower pace which are descriptors for class 2 in this category. That is consistent both with the information Dr Andrews elicited in respect of this category and in respect the appellant’s current symptoms. The panel therefore accepts that a classification of 3 in this category is appropriate.
Applying the method set out in Ch 11 of the Guidelines for converting the PIRS classifications to WPI the appellant suffers 15% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 December 2020 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 Anderson 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) |
| 1. Psychological | 2/07/2019 | Ch11, pp 55-60 | CH14 | 15% | NIL | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Paul Sweeney
Member
Dr Patrick Morris
Medical Assessor
Dr Douglas Andrews
Medical Assessor
16 June 2021
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5
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