Secretary, Department of Education v Pillay

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Education v Pillay [2023] NSWPICMP 90
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Mervyn Pillay
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	15 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Impairment resulting from psychiatric injury; fresh evidence admitted as not available before assessment and because it had such probative value it was reasonably clear it would change the outcome of the case; appellant alleged error in the assessment in two of the categories under the psychiatric impairment rating scale (PIRS), concentration, persistence and pace and employability; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 December 2022 the Secretary, Department of Education 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 7 November 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        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.
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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Pillay developed a primary psychological injury in the course of his employment with the appellant as a construction and technology teacher.
Mr Pillay commenced proceedings in the Personal Injury Commission (the Commission) claiming 15% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 21 May 2019.
In an Amended Certificate of Determination dated 7 February 2022, Member Peacock made the following orders:
“1.     It is noted that the respondent withdraws the liability dispute.
2.     The matter is remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, as a result psychological injury deemed to have occurred on 21 May 2019.
3.     It is noted that applicant consents to an assessment by way of audio-visual link.
4.     The ARD and all documents attached admitted.
5.     The Reply and all documents attached admitted.”
The matter was referred to the Medical Assessor on 7 March 2022 for assessment of WPI of Mr Pillay’s psychological injury deemed to have occurred on 21 May 2019. An amended referral was issued on 29 June 2022.
The Medical Assessor examined Mr Pillay on 27 October 2022 through video link. The Medical Assessor assessed 15% WPI as a result of the injury deemed to have occurred on 21 May 2019.

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.
The appellant did not request that Mr Pillay be re-examined by a Medical Assessor who is a member of the Appeal Panel but conceded that Appeal Panel may decide that Mr Pillay should be further assessed.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Pillay to undergo a further medical examination because there was sufficient evidence on which to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a)    three WorkCover NSW Certificates of Capacity (the Certificates) of Dr Yu dated 6 October 2022,
3 November 2022 and 17 November 2022;
(b)    Recovery at Work Plan No 2 of Rehabilitation Services, and
(c)    email correspondence of the respondent worker to the appellant dated
24 November 2022. The appellant submitted that the evidence was not reasonably available to it at the time of filing the Reply and could not have been reasonably obtained. The appellant noted that there was a significant delay between the filing of the Reply in January 2022 and the appointment with the Medical Assessor on 27 October 2022 due to COVID-19 and the failure of Mr Pillay to attend the first scheduled appointment on 12 July 2022.
The appellant submitted that the Certificates were consistent with the evidence in the MAC and the earlier Certificates attached to the Reply. The appellant argued that the Certificates confirmed that Mr Pillay was fit to return to his position as a High School teacher, but at an alternative school. The Recovery at Work Plan set out the details of the proposed return to work. The email of Mr Pillay indicated that he was unable to complete his return to work plan, not as a result of his injury, but due to a family emergency. The appellant argued that this additional evidence should be admitted in the interests of justice.
Mr Pillay seeks to admit the following evidence:
(a) supplementary statement dated 23 December 2022.Mr Pillay submitted that in the event the fresh evidence proposed by the appellant was allowed before the Appeal Panel, Mr Pillay sought to rely on a supplementary statement dated 23 December 2022 that addressed the issues the appellant sought to ventilate.
Mr Pillay argued that the appeal “rises and falls” on the admission of the evidence as no error was highlighted on the basis of the material before the Medical Assessor, which highlights the futility of the application and the undermining of the primacy of the Medical Assessor's assessment on the date of examination. The medical assessment took place on
27 October 2022. The certificate of capacity of 6 October 2022 fell within the category of available evidence. No explanation was given as to why that certificate was not part of a late documents submitted to the Commission or made available to the Medical Assessor before the examination. The Certificate of Capacity dated 6 October 2022 in any event certified 7 hours a day 2.5 days a week on a background of treatment including psychotherapy.
Mr Pillay submitted that the material relied upon by the appellant ignored the very principle of the primacy of the medical examination by the Medical Assessor, that is, the Medical Assessor making an assessment of the applicant as at the date of the assessment.
The issue from Mr Pillay’s perspective was that the certificates if admitted stood alone, and there was no background with respect to their providence, for example, discussions or the nature of the agreements between the plaintiff and his GP highlighted for example by the ultimate recommendation in the Certificate November 2022 was with respect to ‘trial’ as opposed to an actual certification relative to capacity.
Mr Pillay argued that the late material the appellant sought to rely upon did not alter the position as far as the application of the psychiatric impairment rating scales (PIRS) was concerned, and it denied Mr Pillay procedural fairness and ignored the principles of the finality of litigation. Mr Pillay submitted that the application by the appellant should be rejected but if allowed Mr Pillay’s statement needed to be considered to afford him natural justice.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04).
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
In Orr v Holmes (1948) 76 CLR, at pp 640-642 a number of different expressions were collected, which have been judicially used at various times, and were summed up as follows:
"No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable" (at p 642).
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The Appeal Panel accepted that the Medical Certificates of Dr Yu, the Recovery at Work Plan No 2 of Rehabilitation Services and the email correspondence from Mr Pillay dated
24 November 2022 all related to events that occurred just before and after the examination by the Medical Assessor and were not available or could not reasonably have been obtained before the Medical Assessor’s assessment. Similarly, the statement of Mr Pillay dated
23 December 2022 was not available before the Medical Assessor’s assessment.
The Appeal Panel considered that all this evidence was highly relevant to the assessment in the PIRS categories of employability and concentration persistence and pace. The Appeal Panel concluded that this fresh evidence had probative value such that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a)    the three most recent WorkCover NSW Certificate of Capacity of Dr Yu dated
6 October 2022, 3 November 2022 and 17 November 2022;
(b)    Recovery at Work Plan No 2 of Rehabilitation Services;
(c)    email correspondence of the respondent worker to the appellant dated
24 November 2022, and
(d)    statement of Mr Pillay dated 23 December 2022.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    the Medical Assessor assessed 15% WPI in respect of Mr Pillay’s psychological injury in accordance with Chapter 11 of the Guidelines;
(b)    the Medical Assessor failed to correctly assess the scales of concentration, persistence and pace and employability in Chapter 11 of the Guidelines, specifically with reference to Tables 11.5 and 11.6 of the Guidelines. On this basis, the assessment was made on the basis of incorrect criteria and contained demonstrable error;
(c)    in relation to concentration, persistence and pace, the Medical Assessor assessed Class 3, noting "Mr Pillay described having poor concentration. He used to enjoy reading books, but ceased as he cannot focus on reading books. He has not engaged in further study”. Mr Pillay has been certified fit to return to work 7 hours a day, 2.5 days per week as a High School teacher and this would be inconsistent with a finding of moderate impairment for concentration, persistence and pace. Mr Pillay should be assessed in Class 2 for concentration, persistence and pace;
(d)    in relation to employability, the Medical Assessor assessed Class 3, noting “He can no longer manage his pre-injury duties. He cannot perform full-time work in another environment. He can manage lower stress employment at around 20 hours per week in a different workplace”;
(e)    the Medical Assessor was in error in assessing Class 3 as he found that Mr Pillay could work 20 hours per week in a different workplace. The appellant submits that this finding was consistent with the WorkCover NSW Certificate of Capacity of Dr Yu dated 17 November 2022, where Dr Yu certified that the Worker could work 7 hours a day, 2.5 days per week as a High School teacher (and trial 7 hours a day, 3 days per week) at a different school (excluding two of the respondent schools) and the Recovery at Work Plan No 2. The Medical Assessor (on page 2) noted that Mr Pillay had now started at another school, James Ruse High School where he had worked two days;
(f)    Mr Pillay should be assessed in in Class 2 as he clearly fits into the example of Class 2 in terms 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 cannot apply in circumstances where
Mr Pillay can work in the same position, ie as a High School teacher, and
(g)    the Appeal should be allowed and a new Medical Assessment Certificate be issued.
Mr Pillay‘s submissions include the following:
(a)    the substantive appeal asserts broadly that the Medical Assessor failed to correctly assess scales of concentration, persistence, pace and employability on the basis that the assessment was done with reference to incorrect criteria and contained a demonstrable error;
(b)    the appellant relied upon the recent medical certification as the basis upon which it asserts that there had been the application of incorrect criteria and demonstrable error;
(c)    the appeal as observed rises and falls on an acceptance as to whether in the first instance the late material is allowed into evidence;
(d)    the supplementary statement of Mr Pillay puts some flesh on the very bare bones of the argument that the approach taken by the Medical Assessor can be readily accepted and the appeal rejected;
(e)    there was no evidence, in any event, in any of the material put forward that
Mr Pillay can, or is, working more than 20 hours a week, and
(f)    the above proposition appears to be the central issue raised by the appeal; it is not supported by the evidence. The appeal should be rejected.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being,] SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

The Medical Assessment Certificate

Under “History relating to the injury” the Medical Assessor wrote:
“Mr Pillay joined Department of Education in 2010 as a full-time construction and technology teacher. He had worked at Muirfield High School for about two terms, and stopped work there in August 2019.
He reported that when he was working at Muirfield, the students were moving a box and this went onto his foot. He went home and at 7.00 pm that day he started having pain. He saw his GP who later found a toe fracture. He went back to school in a Moon Boot; however, he said once he notified the school of his injury, problems started.
The principal claimed Mr Pillay was faking his injury. They had a rehabilitation meeting and the principal and deputy principal were present, but they asked the rehabilitation coordinator to leave and they started threatening him, calling him a “liar”, and made other false accusations against him, and said the students gave a different account of the event.
By the second term, he said that he was put on a Performance development plan. He recalled he raised concerns about a student, but the principal blamed it on him. They asked him to change his professional development after they already accepted it. They asked him to also changed a report that he had already written.
He reported that he was subjected to ongoing bullying and harassment, and then the principal started following him on Facebook, and he said that he felt like she was stalking him. By this stage, he could not tolerate the anxiety and stopped work altogether at Muirfield High School.
Mr Pillay then worked at Hunters Hill High School as part of rehabilitation, but only lasted four weeks, and said there were similar problems where the head teacher claimed Mr Pillay undermined his authority; another teacher made critical comments. He said he was made to feel inferior and could not cope working there.
He subsequently went to Asquith School in October 2021, initially as an online observer and later in the classrooms. He developed recurrent shingles and needed to take intermittent time off. He gradually built up the hours to seven hours a week and was doing face-to-face work assisting other teacher, but he stated in the last term the placement expired.
He has now started at James Ruse Agricultural High School and has worked there for two days only”.

Under “Present treatment” the Medical Assessor wrote:
“Mr Pillay has been consulting Lisa Morely, psychologist, and Dr Assad Saboor, psychiatrist, since 2019, recently every 4 weeks.
He is taking Mirtazapine 60 mg.”
On page 3 of the MAC under “Present symptoms”, the Medical Assessor wrote:
“Mr Pillay reported he still has phobia and nightmares. He is depressed and reported his concentration is poor and worries about going back to work.
He feels anxious when he is in a situation where people ask him to do something beyond capacity, and worries that they do not accept that he has an injury.
…
He reported having major problems with his memory and concentration.
He has fleeting suicidal thought; the last time was in 2020.
He lost weight, altogether around 5kg due to work stress.
He reported having sleep problems and intermittent nightmares.
He has panic attacks. He was investigated for cardiac disease and his ECGs were normal.
He reported being "snappy".
He avoids social situations due to his anxieties.…”.
Under “Summary of injuries and diagnoses” the Medical Assessor noted:
“After a physical injury, Mr Pillay returned to work and reported he was bullied and developed depression and anxiety as a result of interaction with the principal and deputy principal in 2019.
When he returned to work at Hunters Hill, he experienced further similar problem with the teachers there.
He suffered chronic depression and anxiety symptoms which are consistent with an
adjustment disorder. This is a primary psychological injury caused by alleged bullying at school. Given he has had more than three years of regular treatment, my view is that his condition is well stabilised”.
At 11 of the MAC under “Reasons for Assessment” the Medical Assessor noted “Mr Pillay's rehabilitation and return to work plan had been noted”.

Discussion

The appellant alleged error in respect of the assessment of the PIRS categories of concentration, persistence and pace and employability.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 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.”
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J was Campbell J in Ferguson v State of New South Wales [2017] NSWSC 857, where his Honour in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a)     was the categorisation glaringly improbable;
(b)     was the AMS unaware of significant factual matters;
(c)     was there a clear misunderstanding by the AMS, and
(d)     was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“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…
70.    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.
71.    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 Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Concentration, Persistence and Pace

The appellant submitted that Mr Pillay had been certified fit to return to work 7 hours a day, 2.5 days per week as a High School teacher and this would be inconsistent with a finding of moderate impairment for concentration, persistence and pace. The appellant submitted that Mr Pillay should be assessed in Class 2 for concentration, persistence and pace.
The examples under Table 11.5 for “Concentration, Persistence and Pace” in the Guidelines are:
“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 Medical Assessor assessed Class 3, in relation to concentration, persistence and pace noting:
"Mr Pillay described having poor concentration. He used to enjoy reading books, but ceased as he cannot focus on reading books. He has not engaged in further study”.
On mental health examination, the Medical Assessor noted:
“Mr Pillay had short greying hair and a light beard. He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He spoke spontaneously and appeared distracted, and repeated himself on occasions.
At the end of the assessment, I asked Mr Pillay for additional information that he thought may be relevant and he discussed being snappy, having nightmares of being attacked, panic attacks and having had 3 normal ECGs to rule out a heart attack, and feeling rejected. I noted these were discussed during the assessment already”.
The Medical Assessor also noted that Mr Pillay had now started at James Ruse Agricultural High School and has worked there for two days only.
In the statement dated 23 December 2022 Mr Pillay stated that:
“4. I struggle daily with concentration and maintaining my attention for any extended
period. I struggle with my memory and am forgetful. I struggle for example in long
conversations because I can't maintain focus and attention. Due to this, I get distracted and frustrated with myself and others.
…
6. My current work certificate is for 7 hours a day, 2.5 days per week as a High School Teacher being about 17.5 hours per week. I am apprehensive about getting back to work in any greater capacity given my ongoing issues. I am pessimistic that I will be able to do more than I am doing, I am just hanging on as it is, I struggle to maintain a routine and avoid social situations as often as I can.”
In a report dated 21 January 2021, Dr Rastogi assessed Mr Pillay as Class 3 for concentration, persistence and pace giving the following reasons:
“Moderate impairment as feels tired and exhausted and has difficulty with comprehension due to anxiety. He is forgetful and has poor retention and recall”.
Dr Rastogi noted that Mr Pillay had concentration lapses due to anxiety. She noted that current symptomology included intermittent waking up, poor frustration tolerance, low energy levels and tiredness
Dr Bisht in a report dated 7 July 2021 wrote:
“He said that he only lasted at the Hunters Hills school for 4 weeks and he had to stop working again.
Since then, his sleeping patterns have worsened again, he said, and he has
interrupted sleep on most nights.
He described that he thinks about the workplace experiences everyday and gets
anxious when he has those recollections. He described that he is fearful about similar experiences in the future. He said that he still feels constantly edgy in unfamiliar places and with unfamiliar people around. He described that his concentration in inadequate. He said that his mood is mostly flat, and he still lacks motivation to socialize and doesn’t derive as much pleasure from activities as he used to. He said that his mirtazepine has since been increased to 60 mg.”
Dr Bisht observed on mental state examination:
“Cognitively, he able to provide reasonably detailed answers to my questions without prompting, although there was some circumstantiality. His short-term memory was somewhat impaired. Long term memory was somewhat impaired.
There has been a recent worsening about 2 months back, and the worker hasn’t had adequate time or treatment to recover from the recent worsening. Therefore, the worker hasn’t reached MMI.
I am of the opinion that he would reach MMI by the end of 2021.”
Although the Medical Assessor noted that Mr Pillay described having poor concentration, being unable to focus on reading books and not engaging in further study, the Medical Assessor had also noted that Mr Pillay had returned to work and just completed two days at James Ruse High School.
The Recovery at Work Plan No 2 starting 9 October 2022 provided the following details of the pre-injury duties of a secondary school teacher:
“Nature of Pre-Injury Duties: Secondary School Teacher
…Teachers require a capacity to integrate technology in teaching and learning programs. They are required to have highly developed communication and interpersonal skills and the capacity to work collaboratively with students, employees and parents. Teachers should have the ability to translate the understanding of the Quality Teaching Framework in outstanding classroom practice and knowledge of and commitment to the policies and approaches applicable to the individual school community.
…
Non-Teaching Time: During the non-teaching periods, time is spent on session planning, completion of administrative paperwork, correction of students' work, reports, class preparation (e.g. photocopying, resource preparation) review of resources, purchasing of supplies, checking and responding to messages etc. It should be noted that teachers may also undertake these and other related tasks outside of the school's operating hours”.
The Appeal Panel noted that not only the Medical Assessor, but Dr Rastogi, assessed class 3 for concentration, persistence and pace. However, Dr Rastogi’s assessment was made some time ago in January 2021 when Mr Pillay was not working. On examination by the Medical Assessor, Mr Pillay engaged well with the video assessment process. The Medical Assessor noted that there was no psychomotor slowing or abnormal movements.
The fresh evidence established that Mr Pillay was working as a High School teacher until at least late November 2022 when he took leave for personal reasons over December 2022. He was certified fit to work 17.5 hours a week. Teaching encompasses various different types of conduct, including session planning, administrative paperwork, correction of student’s work, and class preparation. Such types of conduct involve quite a significant amount of reading. These different types of conduct require engagement, concentration and persistence. The Medical Assessor did not appear to take into account these different types of conduct that
Mr Pillay performed at James Ruse High School in his work there as a construction and technology teacher. The Appeal Panel considered that the concentration and focus required in order to carry out this conduct was clearly inconsistent with a rating of 3 for concentration, persistence and pace.
The Appeal Panel considered that the Medical Assessor fell into error when assessing
Mr Pillay as Class 3 in the category of concentration, persistence and pace in circumstances where Mr Pillay had returned to work two days a week. In addition, the fresh evidence established that since the MAC was issued, Mr Pillay has been working 17.5 hours a week as a High School teacher until late November 2022 when he went on leave for personal reasons. A consideration of the fresh evidence available resulted in the Appeal Panel concluding that a Class 3 assessment was inconsistent with the descriptors in the Guidelines in the category of concentration, persistence and pace and the appropriate class was Class 2. The Appeal Panel concluded that the assessment in this class was not made on the basis of correct criteria and this was a demonstrable error.

Employability

The appellant submitted that the Medical Assessor was in error in assessing Class 3 as he found that Mr Pillay could work 20 hours per week in a different workplace. The Medical Assessor noted that Mr Pillay had started at another School, James Ruse High School and had worked two days. The appellant argued that Mr Pillay should be assessed in Class 2 as he clearly fits into the example of Class 2 and Class 3 could not apply in circumstances where Mr Pillay could work in the same position, ie as a High School teacher.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“Class 2: Mild impairment: Able to work full time but in a different environment from that of the preinjury 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).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: Cannot work at all.”
The Medical Assessor assessed Mr Pillay as class 3 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - Class 3. He can no longer manage his pre-injury duties. He cannot perform full-time work in another environment. He can manage lower stress employment at around 20 hours per week in a different workplace.”
In the MAC, the Medical Assessor noted:
“… he could not tolerate the anxiety and stopped work altogether at Muirfield High School. Mr Pillay then worked at Hunters Hill High School as part of rehabilitation, but only lasted four weeks, and said there were similar problems where the head teacher claimed Mr Pillay undermined his authority; another teacher made critical comments. He said he was made to feel inferior and could not cope working there.
He subsequently went to Asquith School in October 2021, initially as an online observer and later in the classrooms. He developed recurrent shingles and needed to take intermittent time off. He gradually built up the hours to seven hours a week and was doing face-to-face work assisting other teacher, but he stated in the last term the placement expired.
He has now started at James Ruse Agricultural High School and has worked there for two days only.”
In his statement dated 4 November 2021, Mr Pillay described problems he had at Muirfield High School since the commencement of his employment there in January 2019 including being the subject of disrespectful racial comments and criticised in front of parents by the head teacher. He stated:
“In March 2021, I was allocated a placement at Hunters Hill High School by the insurer for the purposes of rehabilitation. I was assigned 2 days a week and I taught one class per day. However, I ceased this placement approximately one month later in or around April 2021 as I could not handle it.”
Dr Rastogi, in her report dated 21 January 2021, wrote:
“The client has capacity to resume graded return to work as a teacher in supportive environment….
The client cannot return to pre-injury work but can work part time in a different school. I am of the opinion that the client has capacity to work in suitable
duties and in limited capacity due to psychological conditions. He cannot deal in highly stressful work environment.”
Dr Rastogi assessed Mr Pillay as Class 3 for “Adaptation” giving the following reasons; “Moderate impairment as has capacity working in part time in a different school”.
Dr Martin, in a report dated 5 June 2020, wrote:
“I think that it is highly unlikely that he will return to pre-injury hours and pre-injury duties with the Department of Education at his substantive school. However, in my view, at an alternative environment, he would be able to gradually increase his hours and return to full-time teaching duties within approximately the next three months. Reasons to delay are likely to be related to industrial factors and his entrenched sense of embitterment.
The Department of Education could hopefully find appropriate work in an alternative setting in order to support a safe, endurable return to work. Because of the breakdown in relationship between him and his school, and the fact that he has apparently launched legal proceedings involving the Teachers Federation, I suggest that an attempted return to work to his substantive school would be doomed to fail, and it is likely that Mr Pillay would report worsening of depression symptoms, and perceive that he was being treated unfairly. … In my view, he has capacity to work in an alternative work site, and I would support a graduated return to work as is apparently planned, and I would think that he could increase to full-time duties over a relatively short period.”
In the WorkCover NSW Certificate of Capacity of Dr Yu dated 17 November 2022, Dr Yu certified that Mr Pillay could work 7 hours a day, 2.5 days per week as a High School teacher at a different school. The Appeal Panel noted that Dr Yu ultimate recommendation in the Certificate of 17 November 2022 was with respect to a ‘trial’ for three days a week as opposed to an actual certification relative to capacity.
The Recovery at Work Plan No 2 noted that Stage 1 objective was a return to work 2.5 days a week until 25 November 2022 and then three days per week from 28 November 2022 to
20 December 2022.
In the statement dated 23 December 2022 Mr Pillay stated that:
“6. My current work certificate is for 7 hours a day, 2.5 days per week as a High School Teacher being about 17.5 hours per week. I am apprehensive about getting back to work in any greater capacity given my ongoing issues. I am pessimistic that I will be able to do more than I am doing, I am just hanging on as it is, I struggle to maintain a routine and avoid social situations as often as I can.”
In the email dated 24 November 2022 to the appellant, Mr Pillay made a request to take long service leave until the end of term due to a family emergency.
The Appeal Panel was satisfied that Mr Pillay was certified to work 17.5 hours a week and considered it unlikely that he would be able to manage more hours.
The Appeal Panel considered that based on the evidence before the Medical Assessor, and for the reasons provided by the Medical Assessor in the MAC, it was open to the Medical Assessor on the evidence to make an assessment of Class 3 for employability. The Appeal Panel was not satisfied that the fresh evidence warranted a change in this assessment of Class 3 for employability. Mr Pillay is working less than 20 hours a week as a school teacher but cannot work at a number of schools including the school where he worked prior to the subject injury. In this sense, Mr Pillay is working in a different position and different environment, which is less stressful.

The Appeal Panel was satisfied that the Medical Assessor applied the correct criteria and there was no demonstrable error in the MAC in relation to the rating in the PIRS category of employability.
The Appeal Panel concluded that Mr Pillay’s impairment in the PIRS classes of employability was the same as assessed by the Medical Assessor. In terms of concentration, persistence and pace the Appeal Panel concluded that the impairment attributable to his psychiatric injury was a Class 2 – mild. The Medical Assessor had assessed this as Class 3 but
Mr Pillay’s situation has changed in that he returned to work in October 2022 and was certified as fit to work 17.5 hours a week. Mr Pillay was engaged in conduct at work which demonstrated an ability to concentrate and focus for periods of more than 30 minutes and follow lesson plans and mark papers and supervise students. The Appeal Panel concluded that the impairment attributable to his primary psychiatric injury in concentration, persistence and pace was a Class 2 – mild.
The Medical Assessor made an assessment of 15% WPI in respect of a psychological injury. The Appeal Panel has now made a rating of Class 2 in the scale of concentration, persistence and pace. Therefore, the assessment of total WPI by the Appeal Panel is 7% WPI in respect of the injury deemed to have occurred on 21 May 2019.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 November 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W6509/21
Applicant:	Mervyn Pillay
Respondent:	Secretary, Department of Education

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Michael Hong 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. Psycho-logical.

21 May 2019 - deemed

Page 55-60

Total % WPI (the Combined Table values of all sub-totals)

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2023] NSWPICMP 90

15 March 2023