Santangelo v State of New South Wales (NSW Police Force)
[2023] NSWPICMP 105
•23 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Santangelo v State of New South Wales (NSW Police Force) [2023] NSWPICMP 105 |
| APPELLANT: | Anthony Daniel Santangelo |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 23 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; use of other medical reports; State of New South Wales v Kaur considered; assessment in Psychiatric Impairment Rating Scale (PIRS) categories; Jenkins v Ambulance Service of NSW, Ferguson v State of New South Wales and Ballas v Department of Education discussed; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 December 2022 Anthony Daniel Santangelo lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
28 November 2022.Mr Santangelo 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 has been made out, being that in s 327(3)(d). 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 Santangelo became a police officer in 2001. He was diagnosed with post-traumatic stress disorder after attending the site of a helicopter crash in 2013. He was absent from work for nine months and treated then cleared to return to work. He returned to work in administration, serving apprehended violence orders and court notices. As a result of an error in recording whether a document had been served in 2018 he was placed under criminal investigation. When the investigation was complete, he returned to general duties but only lasted about six weeks. He returned to work for one day a week in August 2019 but ceased work in March 2020 after being told that he was again under investigation by the Police Force for the error in 2018. He was discharged on medical grounds. The deemed date of injury is 19 November 2018.
The Medical Assessor diagnosed post-traumatic stress disorder and alcohol use disorder. Using the Psychiatric Impairment Rating Scale (PIRS), he assessed 9% whole person impairment (WPI), assessing Mr Santangelo in class 2 for self-care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace. He assessed Mr Santangelo in class 3 for social functioning and class 5 for employability. He allowed 1% for a substantial elimination of impairment as a result of treatment, providing a total assessment of 10% WPI.
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 it was not necessary for the worker to undergo a further medical examination because the Medical Assessor’s assessment was open to him and does not disclose the application of incorrect criteria or a demonstrable error.
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.
The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by his solicitor Mr McCabe, Mr Santangelo submitted the Medical Assessor had only referred to Dr Smith’s treatment reports and not his assessment of WPI. He said that, in failing to comment on that assessment, the Medical Assessor was “unaware of a significant factual matter”. He essentially submitted that the Medical Assessor should have assessed Mr Santangelo as Dr Smith did.
Mr Santangelo’s submissions include a table of the assessments made by Dr Smith in February 2021, Dr Lee in November 2021 and the Medical Assessor in November 2022. The table is followed by the statement as to “the items in dispute”.
Mr McCabe submitted that the Medical Assessor should have assessed Mr Santangelo in class 3 for self-care and personal hygiene because he lives with his daughter and “it is surmised” that he cannot live independently without regular support from her. She prompts him to shower. Because the Medical Assessor noted that Mr Santangelo has gained 12 kg, Mr McCabe assumed that it is because his meal preparation is lacking.
He submitted that Mr Santangelo should be assessed in class 3 for social and recreational activities because he does not attend large parties or activities which are age, sex and culturally appropriate and is not involved with clubs and associations. He goes to a small pub with a few close friends. Mr McCabe submitted that Table 11.2 does not “deal with” family functions such as birthday parties.
Mr McCabe submitted that Mr Santangelo should be assessed in class 3 for concentration, persistence and pace. He said there is nothing in the body of the MAC which deals with Mr Santangelo’s proposed car repairs and that he only performs minor repairs. He submitted that Mr Santangelo should be assessed in class 3 because he last read a book five years ago, that he has problems with simple instructions and his daughter provides assistance.
Mr Morrissey prepared submissions on behalf of the Police Force. He summarised the MAC. With respect to Dr Smith’s report, he said the Medical Assessor noted that the report is dated and the history Mr Santangelo gave the Medical Assessor clearly described improved functioning with re-engagement in adequate self care and social and recreational activity and improve concentration. Mr Morrisey noted that the Medical Assessor was required to assess Mr Santangelo as he presented on the day of the examination and that the class descriptors in the PIRS are examples only. He referred to the decisions in Ferguson v State of New South Wales[1] (Ferguson) and Parker v Select Civil Pty Limited[2] (Parker) with respect to the requirement for the Medical Assessor to use his own clinical judgement.
[1] [2017] NSWSC 887.
[2] [2018] NSWSC 140.
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 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.
Mr Santangelo submitted that the Medical Assessor should have paid greater heed to Dr Smith’s PIRS assessment. The Guidelines provide in paragraph 1.6 that assessment of permanent impairment involves clinical assessment of a worker as he presents on the day of assessment, taking into account his relevant medical history and available relevant medical information.
The Medical Assessor was required to reach his own decision and it is not an error to disagree with other assessors. Campbell J described the Medical Assessor’s task in State of New South Wales (NSW Department of Education) v Kaur.[3] His Honour 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’.”
[3] [2016] NSWSC 346.
The statement on which Mr Santangelo relies is dated 6 October 2020. It was prepared two years before he was examined by the Medical Assessor. It is somewhat rambling and lacking in historical detail. It does not describe his daily functioning at that time. The Application to Resolve a Dispute (ARD) contains short reports from Dr Smith in 2020 describing his treatment.
Dr Smith prepared a medico-legal report dated 10 February 2021, 20 months before the Medical Assessor’s assessment. There are no medical reports or certificates of capacity in the ARD which post-date Dr Smith’s report, apart from Dr Lee’s report.
Dr Lee was qualified for the Police Force in November 2021. She did not consider that Mr Santangelo had reached maximum medical improvement and believed that he would improve with further treatment over the following year, including engagement with a rehabilitation provider. She said that he described working on his car and she considered that he may have the capacity to work as a mechanic.
The Medical Assessor was required to assess Mr Santangelo as he presented on the day of the examination. His role was not to choose between the evidence in the reports of previous examiners but to make his own assessment using the PIRS. It is likely that Mr Santangelo’s condition would not be the same on the day of the Medical Assessor’s examination as it was in February 2021.
The Medical Assessor was required to comment on other reports in the file and explain why his assessment differed. It is clear from the MAC that he had read the reports in the file. Contrary to Mr Santangelo’s submission, the Medical Assessor did in fact consider Dr Smith’s medico-legal report when he said:
“Dr Selwyn Smith provided numerous treating psychiatrist reports, 10 February 2021, noted 3 to 4 beer at a time when he drinks. He had formed a new relationship. He diagnosed PTSD and major depressive disorder and provided a WPI. The report is dated and Mr Santangelo clearly describes improved functioning with re-engagement in adequate self-care and social recreational activity, as was improved concentration.”
The Medical Assessor accepted that the report was dated and highlighted the ways in which Mr Santangelo’s functioning had changed “with re-engagement in adequate self-care and social recreational activity, as well as improved concentration”.
Application of the PIRS
Paragraph 11.12 of the Guidelines describes the use of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
Mr Santangelo’s submissions set out the examples for each level of impairment in the impugned PIRS categories. However, the most important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. What follows in each class are examples which are consistent with the relevant level of impairment. In Jenkins v Ambulance Service of NSW[4] (Jenkins), Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[4] [2015] NSWSC 633 at [65].
Assessment of the level of impairment is a matter of clinical judgement for the Medical Assessor. It is important to remember that class 1 applies where there is “no deficit, or a minor deficit attributable to the normal variation in the general population”, accepting that there is a range of behaviours which can be considered “normal”.
Campbell J considered the categorisation of impairment under the PIRS in Ferguson and said:[5]
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
[5] At [24] – [25].
Harrison AsJ cited Ferguson in Parker and said[6]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
Self-care and personal hygiene
[6] At [70]-[71].
Mr Santangelo’s submissions are based on assumptions, not the history he provided to the Medical Assessor. He submitted that a higher assessment was warranted because the fact he lives with his daughter leads to the conclusion that he cannot live independently. He said that because he had gained weight – attributed to inactivity – it should be assumed that he was not eating properly.
The Medical Assessor gave reasons for his assessment in class 2 in the PIRS Rating Form:
“Mr Santangelo gained weight and skips meals, and often eats takeaway food. He said he sometimes cooks and he goes to the shops to buy groceries daily. His daughter prompts him to shower. Without prompting, he said that he only showers every 2 to 3 days. He is capable of independent living without regular support.”
The Medical Assessor noted that Mr Santangelo lives with his 24 year old daughter and that he goes to the shop every day to buy groceries, using it as a chance to go out.
The examples for class 2 – mild impairment – are:
“Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.”
The examples for class 3 – moderate impairment – are:
“Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
Both of those classes contain on examples relevant to Mr Santangelo’s current functioning. Mr Santangelo’s ability to cook sometimes and shop daily suggests a mild impairment. The assessment was open to the Medical Assessor in the exercise of his clinical judgement. The fact that another assessor may have assessed him in class 3 is not an error. The assessment is one about which reasonable minds may differ.
Social and recreational activities
The Medical Assessor gave reasons for assessing Mr Santangelo in class 2:
“He attends regular social recreational activities with his family and friends. Overall, he has been attending less since his injury. He only enjoys going to the pub with a small group of close friends, and enjoys larger social events and parties with his family.”
In the body of the MAC the Medical Assessor said:
“He avoids large social settings due to his anxieties. He enjoys small social gatherings and can manage family functions without significant difficulties.”
…
… mainly has four close friends that he considers ‘mates’. He has regular contacts with them and they tend to go to the pub, generally only three people at a time, and they will have dinner and he would stay for a couple of hours at the pub, and he does not play the pokies. He said he has probably gone to the pub with his friends 20 times in this year.”
And
“Mr Santangelo has been invited to large parties, but he does not go. He said he is okay in larger family functions, and he has a lot of family with five siblings and maybe 10 nieces and nephews. They regularly get together for birthday parties and this can be every three to four weeks, and he manages this okay. In terms of groups activity with his friends, he said anything more than six people, he feels anxious and does not want to go.”
When commenting on Dr Lee’s report, the Medical Assessor said:
“The main difference in the assessment is in the social recreational activity, Dr Lee noted that he was withdrawn socially and in my assessment I noted that he still enjoys attending social events with the family, such as birthdays parties, and goes to the pub with four close friends and has been maybe 20 times in 2022.”
The table “looks to the injured worker’s degree of participation in such activities” and his interaction with others[7].
[7] Ballas v Department of Education [2020] NSWCA 86 at [100].
Mr Santangelo submitted that he:
“rarely goes out to such events that are age, sex, and culturally appropriate and is not actively involved with clubs or associations. He goes to small pub and only participates with 3 close friends, which he considers his mates.”
That submission fails to have regard to the levels of impairment in Table 11.2 and focusses on the examples. Mr Santangelo’s participation in clubs and associations, for example, would only be relevant if he had been involved with those organisations before the injury.
There is no reasons to exclude extended family functions from the assessment – those are archetypally functions which may be culturally appropriate. Many workers with a psychological injury withdraw from attending family functions. The Medical Assessor accepted that Mr Santangelo was attending less frequently than before though was attending a family event every three to four weeks.
The assessment made by the Medical Assessor was open to him. He considered the extent to which Mr Santangelo participates in social activities an interacts with other people, noting that there is some impairment because that he avoids large groups of people.
Concentration, persistence and pace
The Medical Assessor gave the following reasons for assessing Mr Santangelo in class 2:
“Mr Santangelo reported having reduced concentration. He last read a book 5 years ago. He performs mechanic work on his car, such as change the car oils and repairs. He is thinking about changing the engine.”
In the body of the MAC he said:
“He reported having reduced concentration and ongoing difficulties with his short-term memory. He stated his long-term memory is ok.”
And
“He is not much of a book reader and the last time he read a book was five years ago. He said he tends to avoid newspaper because the news tend to trigger him. He watches Foxtel. He has a 1975 Holden Kingswood car and has been buying parts, and thinking that he might change the engine.”
Many of the tables in the PIRS will be assessed primarily on the basis of the history a worker gives. A Medical Assessor is able to form his own assessment of concentration, persistence and pace in the course of the assessment. The Medical Assessor noted that the examination took 55 minutes and said that Mr Santangelo:
“… provided a clear history and elaborated on various aspects of his history. He was consistently focused throughout the assessment. He did not perseverate and there was no set-shifting difficulty. He maintained a steady speed and pace.”
Those observations suggest a mild impairment which is consistent with the history the Medical Assessor obtained.
Mr Santangelo’s submissions in respect of concentration, persistence and pace focus on the examples in the PIRS and not the level of impairment, contesting the extent of car repairs which Mr Santangelo performs and is considering. His ability to buy car parts for a proposed engine replacement is relevant.
Reading books is only relevant if that was something Mr Santangelo did pre-injury and is unable to do now. The Medical Assessor noted that he is “not much of a book reader”. Mr Santangelo does not suggest that he is unable to concentrate to read the newspaper, rather that he avoids it because it triggers him.
There is no evidence in the file to support the submission that Mr Santangelo has difficulty with simple instructions and that his daughter provides regular assistance.
The Medical Assessor gave clear reasons for his assessment, explaining why he did not agree with Dr Smith’s assessment. The assessment he made was open to him.
For these reasons, we have determined that the MAC issued on 28 November 2022 should be confirmed.
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