Secretary, Department of Education v Wescombe

[2024] NSWPICMP 585

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Education v Wescombe [2024] NSWPICMP 585
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Steven Wescombe
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	20 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under the psychiatric impairment rating scale (PIRS) category of social and recreational activities; Held – no error found; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 2 April 2024 the Secretary, Department of Education (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 March 2024.

2. 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):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. 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).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

   The appellant did not seek that the worker undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error and absent a finding of error the Appeal Panel has no power to require the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

1. 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

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor by the Personal Injury Commission as follows:

   “The following matters have been referred for assessment (s319 of the 1998 Act):

   ·    the degree of permanent impairment of the worker as a result of an injury (s319(c))

   ·    whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))

   ·    whether impairment is permanent (s319(f))

   ·    whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

   ·    Date of injury: 18 December 2020

   ·    Body parts/systems referred: Psychological/Psychiatric disorder

   ·    Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	11, page 55-60	14	19%	n/a	19%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					19%

1. The assessment of impairment was based on the Medical Assessor’s findings as per the psychiatric impairment rating scale (PIRS) as follows:

Table 11.8: PIRS Rating Form

Name	Steven Wescombe	Claim reference number	W9439/23
DOB	Xxxx	Age at time of injury	57
Date of Injury	18 December 2020	Occupation at time of injury	Primary School Teacher
Date of Assessment	20 February 2024	Marital Status before injury	Married

Psychiatric diagnoses

1. Persistent depressive disorder.

2.

3.

4.

Psychiatric treatment

Psychotherapy and antidepressants.

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

2 mild impairment

Mr Wescombe could live independently and look after himself adequately, although he neglects his self-care and is not as particular with his appearance as before the injury. He skips meals and has gained weight. He showers twice a week. He can independently maintain a minimum level of hygiene and nutrition.

Social and recreational activities

3 moderate impairment

Mr Wescombe rarely socialises. There has been a substantial reduction in social and recreational activities since the injury. He stopped going to church. He avoids being around unfamiliar people. He prefers to isolate at home. He has not seen his mother since Christmas. He no longer participates in hobbies, such as bike riding, running, participating in a flying club, or participating in community and church activities. He stopped attending his children’s sporting fixtures.

Travel

2 mild impairment

Mr Wescombe can travel without a support person, but only in a familiar area such as locally. He is apprehensive about driving due to his impaired concentration. He limits his movements locally to avoid running into people associated with the school.

Social functioning

2 mild impairment

Mr Wescombe has lost friendships. His relationships with his family are intact, although he feels ashamed about the impact of his mental state on his relationships and the impact on his wife. Their relationship has been strained with a reduction in intimacy. There was no suggestion that they were in danger of separating.

Concentration, persistence and pace

3 moderate impairment

Mr Wescombe cannot focus on reading or absorbing information. He avoids intellectually demanding activities. He has difficulty making decisions. He tires easily. Although there were problems with his cognition during the interview, such as cognitive slowing and fatigue, I do not consider his cognitive deficits to be severe enough to meet the class 4 threshold, where he would be unable to live alone and would need regular assistance from relatives or community services.

Employability

5

Mr Wescombe is totally impaired and cannot work at all.

Score

Median Class

2

2

2

3

3

5

=3

Aggregate Score Impairment

Total

%

2+2

+2

+3

+3

+5

17

19%

1. There was no deduction made by the Medical Assessor under s 323 to take into account any pre-existing injury, condition or abnormality. This aspect was not the subject of any complaint on appeal.

2. The appeal concerns only the assessments made under one of the PIRS categories being social and recreational activities.

3. In summary, the appellant submitted on appeal that the Medical Assessor made a demonstrable error and/or assessment on the basis of incorrect criteria in rating a class 3 or moderate impairment for social and recreational activities.

4. The appellant complains on appeal that the Medical Assessor has erred in his assessment of a moderate impairment (class 3) for social and recreational activities as follows:

   (a)    by assigning conduct for the workers impairment to his social and recreational activities which should have only been assigned to his impairment of social function;

   (b)    by assigning a moderate impairment where a mild impairment (class 2) was the “more appropriate classification and in line with criteria on the conduct obtained”;

   (c)    by assigning a moderate impairment when the conducted obtained in the MAC was inconsistent with the descriptors in the guidelines, and

   (d)    by assigning a moderate impairment based on conduct that did not result from the worker’s psychological injury.

5. In summary the respondent worker Steven Wescombe (the respondent) submitted on appeal that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

6. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.

7. In respect of social and recreational activities, Table 11.2 of the Guides provides as follows:

   Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
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.

1. The Medical Assessor rated a Class 3 based on his findings as follows:

   “Mr Wescombe rarely socialises. There has been a substantial reduction in social and recreational activities since the injury. He stopped going to church. He avoids being around unfamiliar people. He prefers to isolate at home. He has not seen his mother since Christmas. He no longer participates in hobbies, such as bike riding, running, participating in a flying club, or participating in community and church activities. He stopped attending his children’s sporting fixtures.”

2. The MAC must be read as a whole.

3. The Medical Assessor has had clear regard to the other medical opinion and other evidence that was before him. He explains why his opinion differs. He records his brief comments as follows:

   “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

   Mr Wescombe's statement, dated 28 November 2023, noted a claim for lump sum compensation based on the report by Dr Rastogi with a 19% whole person impairment. A subsequent assessment by Dr Doris noted a 9% whole person impairment.
   Mr Wescombe detailed functional impairments associated with the injury and symptoms of depression.

   Correspondence from Dr Damien Bray noted depression and anxiety and a prescription of citalopram 20mg, one and a half tablets.

   In her report dated 2 June 2023, Dr Richa Rastogi, Independent Medical Examiner, detailed the circumstances of the injury, noting he was employed with the Department of Education since 2000 as a full-time classroom primary teacher for Lilli Pilli Public School. He left work on 18 December 2020 and has not returned to work in any capacity to date. She noted that, in 2017, a new principal had joined the school, making it clear she planned to employ her friends and that she intended to eliminate the current teachers. She noted that Mr Wescombe reported being targeted along with two co-workers with a performance management program and being forced to leave the school. She detailed a hostile and toxic workplace. He took long service leave for six months and carer’s leave in the second half of 2021, caring for his terminally ill father. He was unable to return to work in his substantive position. He developed suicidal thoughts. She noted no history of developmental trauma. Dr Rastogi diagnosed a major depressive disorder with panic attacks. She noted he had a guarded prognosis and was at significant risk of relapse. She noted he remained significantly impaired, assessing whole person impairment at 19%, rating self-care and personal hygiene at class 2, social and recreational activities at class 3, travel at class 2, social functioning and relationships at class 2, concentration, persistence and pace at class 3, and employability at class 5. She has not commented on maximum medical improvement.

   No inconsistencies were identified in notes from his nominated treating doctor. He was prescribed citalopram in January 2022. He was noted to be consuming a bottle of wine each night. He was diagnosed with an adjustment disorder with depressed mood.

   The discharge summary from Sutherland Mental Health noted a presentation to the Sutherland Emergency Department on 27 January 2022 with suicidal thoughts. Follow-up notes noted symptoms of depression.

   No inconsistencies were observed in the notes from the clinical psychologist.

   No inconsistencies were noted in an injury management consultation report from Dr Ian Smith dated 14 June 2022.

   In his report, dated 2 February 2023, Dr Doris noted the circumstances of the injury. No significant inconsistencies were identified. He diagnosed major depressive disorder. At the second assessment on 10 October 2023, Dr Doris detailed the functional impairment, noting a difference in his assessment and Dr Rastogi's assessment of social and recreational activities, noting that Mr Wescombe regularly went for walks on his own, regularly attended his children’s sporting events to support them, though accompanied by his wife, and occasionally going with his wife to meet friends socially. He assessed whole person impairment at 9% with self-care and personal hygiene at class 2, social and recreational activities at class 2, travel at class 2, social functioning at class 2, concentration, persistence and pace at class 3, and employability at class 5. Mr Wescombe’s function in this domain has declined since Dr Doris’s assessment.

   No inconsistencies were noted on the initial assessment report by Altius Rehabilitation Services dated 14 July 2023. He was noted to have a significant impairment in social interaction, and he avoided engaging in social interactions because he feels embarrassed and feels that he is being blamed for his workplace-related injury. He stopped interacting with the community and only interacted with his family and close friends.”

4. The only difference between the assessments in all of the PIRS categories between
   Dr Rastogi, who was qualified to provide an opinion on behalf of the worker, Dr Doris who was qualified to provide an opinion on behalf of the appellant and the Medical Assessor was in respect of the category of social and recreational activities. Like the Medical Assessor
   Dr Rastogi had rated a 3 whereas Dr Doris had rated a 2. The Medical Assessor must reach his own independent opinion based on his findings on the day of examination, having due regard to the other evidence before him, not basing his assessment on self report alone and exercising his own expert clinical judgment.

5. The Medical Assessor notes that there had been a decline in the worker’s function in the domain of social and recreational activities since Dr Doris’ assessment. This is consistent with the history taken by the Medical Assessor, and it is consistent with the other evidence including the worker’s statement evidence which was before the Medical Assessor.

6. The complaint on appeal is that one of the examples used by the Medical Assessor namely that the respondent “rarely socialised” has been erroneously referred to in social and recreational activities when it is more relevant to the category of social functioning. The category of social and recreational activities concerns essentially the degree of participation in activities of a social and recreational nature. This clearly includes the act of socialising. It also includes recreational activities whether they are social or not. In contrast the category of social functioning is concerned with the impact of the impairment from injury on the quality of the worker’s relationships.  

7. The appeal panel can agree that the reference to the worker not seeing his mother since Christmas has erroneously been included in the social and recreational activities category as (a) it seems to relate to his mother’s deteriorating health; (b) is not as a result of injury, and (c) is the only example of conduct in this paragraph properly more rated under social function.  However,  the appeal panel does not consider that this vitiates the rating of a moderate impairment for social and recreational activities because all of the other matters taken into account in this category by the Medical Assessor are correctly attributed such that the rating of class 3 is based upon correct criteria and is clearly supportable on the history taken by the Medical Assessor and the other evidence that was before him. One key attribute of a class 3 impairment is that the frequency of going out to participate in social activities is “rare”, the precise frequency descriptor used by the Medical Assessor.

8. The Appeal Panel considers that a moderate impairment or class 3 for social and recreational activities has been appropriately and correctly rated by the Medical Assessor.

1. For these reasons, the Appeal Panel has determined that the MAC issued on 7 March 2024 should be confirmed.