Serco Australia Pty Ltd v Sryta
[2023] NSWPICMP 362
•31 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Serco Australia Pty Ltd v Sryta [2023] NSWPICMP 362 |
| APPELLANT: | Serco Australia Pty Ltd |
| RESPONDENT: | Ayman Sryta |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 31 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Medical Assessor assessed 22% WPI in respect of a psychological injury deemed to have occurred on 12 May 2022; appellant employer sought leave to admit fresh evidence concerning the work capacity; fresh evidence from both parties admitted; Appeal Panel satisfied that the change in certification from total incapacity to two hours a day, two days a week in worker’s capacity to work was only made in order to allow him to participate in a social therapy program and such a program is a form of treatment and was not evidence of a capacity to work; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 March 2023 Serco Australia Pty Ltd (the appellant) 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 February 2023.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), 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, 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
The respondent, Ayman Sryta (Mr Sryta) developed a primary psychological injury in the course of his employment with the appellant as a detainee services officer.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 22% 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 12 May 2022.
The Medical Assessor examined the appellant on 21 Febuary 2023 through video link. The Medical Assessor assessed 22% WPI as a result of the injury deemed to have occurred on 12 May 2022.
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 Workers Compensation Medical Dispute Assessment Guidelines 2019.
The appellant requested that Mr Sryta be re-examined by a Medical Assessor who is a member of the Appeal Panel. Mr Sryta submitted that no re-examination was necessary.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant 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) SIRA Certificate of Capacity from Dr Lim dated 3 February 2023;
(b) report of Dr Kumagaya dated 24 February 2023, and
(c) confirmation of receipt of certificate of capacity by QBE (undated but noted under date sent/received “14/2/23”).
Mr Sryta seeks to admit the following evidence:
(a) supplementary statement of Mr Sryta dated 17 April 2023;
(b) report of Dr Lim dated 2 February 2023;
(c) social therapy referral by Dr Lim dated 2 February 2023, and
(d) medical certificate of Dr Ben Dickson dated 12 January 2023.
The appellant submitted that further evidence had come to light, namely, the certificate of
Dr Lim dated 3 February 2023 and the report of Dr Kumagaya dated 24 February 2023, which confirmed that Mr Sryta was not totally incapacitated for employment as assessed by the Medical Assessor. The appellant argued that the Commission should grant leave to admit the further evidence in the form of certificate of capacity and report of the treating psychiatrist as this evidence confirmed the Medical Assessor’s assessment under the category of employability was erroneous.The appellant conceded the certificate of capacity dated 3 February 2023 may have reasonably been obtained by the appellant prior to the medical assessment.
The appellant relied on the decision of the Court of Appeal in Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255, where the Court stated that the basic power in s 352(6) of the 1998 Act is to allow the Commission to admit further additional evidence, which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous. However, s 352 of the 1998 Act applies to appeals made against the decisions of the Commission as constituted by a Member and not to appeals against a medical assessment heard by an Appeal Panel. Section 328 of the 1998 Act applies to procedure on appeals against a medical assessment heard by an Appeal Panel. The provisions in s 352(6) are not identical with the provisions in s 328(3) so reference to decisions concerning the power in s 352 (6) do not assist the Appeal Panel in determining the issues in this matter.
The appellant referred to the decision of Keating P in Glemaro Pty Ltd v He [2015] NSWWCCPD 17 and submitted that “Keating J determined that even where the threshold issue in s 328(3) [sic] of the 1998 Act was not overcome, further evidence should be admitted where the exclusion of such evidence would cause substantial injustice”. This decision, in fact, referred to the provisions in s 352(6) of the 1998 Act and made no reference to s 328(3) of the 1998 Act.
Mr Sryta submitted that the documents the appellant sought to rely, that is, a medical certificate of capacity from Dr Lim dated 3 February 2023 and a medical report of treating psychiatrist Dr Kumagaya dated 24 February 2023, were provided to the insurer directly by the doctors in question. Mr Sryta noted, however, that other documents were also provided to the insurer, namely, a medical certificate of the general practitioner (GP) Dr Ben Dickson dated 12 January 2023 relating to period 12 January 2023 to 23 February 2023, a medical report of Dr Lim, dated 2 February 2023, a social therapy referral dated 2 February 2023, and a supplementary statement of Mr Sryta dated 17 April 2023.
Mr Sryta noted that the appellant failed to refer to two relevant elements of the documents it sought to rely on. The certificate of capacity of Dr Lim dated 2 February 2023 at page 2 under the heading ‘Capacity for Activities’ included comments: “Not to work for Serco. Trial social therapy. Consider social support program”. The appellant made no reference to the trial of social therapy. Similarly, when dealing with Dr Kumagaya’s report, the appellant omitted any reference in its submissions to the sentence under the heading “work capacity” where Dr Kumagaya listed the following: “Two hours/day, two days/week to engage in social rehabilitation program”.
Mr Sryta submitted that the medical certificate issued 12 January 2023, which Mr Sytra sought to rely upon, was for total incapacity for work covering the period 12 January 2023 to 23 February 2023. Dr Lim also provided the insurer with a medical report in addition to the medical certificate (which the appellant employer seeks to rely on) but the appellant did not put that report before the Commission in its Appeal.
Mr Sryta submitted that there was no probative value in admitting the additional information and opposed the admission of the additional information as earlier medical certificates were readily available to the appellant.
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 an Appeal 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.”
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 report of Dr Kumagaya dated 24 February 2023 was written after the examination by the Medical Assessor and was not available or could not reasonably have been obtained before the Medical Assessor’s assessment. On balance the Appeal Panel was satisfied that the certificate of capacity dated 3 February 2023 was probably not received by the insurer until 14 February 2023. This was, therefore, a document that had been obtained by the appellant before the medical assessment and could not be received into evidence by the Appeal Panel relying on s 328 of the 1998 Act.
The Appeal Panel considered, on balance, that the report of Dr Kumagaya dated
24 February 2023 should be admitted as fresh evidence in this matter as it had sufficient prima facie probative value.While s 328(3) only refers to the appellant introducing fresh or additional evidence, the Appeal Panel, as part of its duty to act in accordance with the requirements of procedural fairness is bound to permit the respondent to the appeal to adduce additional evidence in reply (Markovic v Rydges Hotels Ltd [2009] NSWCA 181.) Therefore, all, the documents
Mr Sryta seeks to have admitted will be admitted as fresh evidence.The Appeal Panel determines that the following evidence shall be received on the appeal:
(a) SIRA Certificate of Capacity from Dr Lim dated 3 February 2023;
(b) report of Dr Kumagaya dated 24 February 2023;
(c) confirmation of receipt of certificate of capacity by QBE (undated) (under date sent/received) 14 February 2023;
(d) supplementary statement of Mr Sryta dated 17 April 2023;
(e) report of Dr Lim dated 2 February 2023;
(f) social therapy referral by Dr Lim dated 2 February 2023, and
(g) medical certificate of Dr Ben Dickson dated 12 January 2023.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) SIRA Certificate of Capacity from Dr Lim dated 3 February 2023, and
(b) Confirmation of receipt of certificate of capacity by QBE (undated) (under date sent/received) 14 February 2023.
The SIRA Certificate of Capacity from Dr Lim dated 3 February 2023 was not admitted as fresh evidence in this matter. However, the Appeal Panel considered that it was relevant to is consideration of the appeal and was a document that the Appeal Panel would have called for using its power under s 324(1) of the 1998 Act. Accordingly, this document will be considered by the Appeal Panel in determining the Appeal.
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 Assessment Certificate contains a demonstrable error (s 327(3)(d) of the 1998 Act).
(b) With respect of s 327(3)(b), the availability of additional relevant information that was not available to and could not have reasonably been obtained by the appellant before the Medical Assessor, further evidence has come to light, in the form of certificates of capacity issued by Mr Sryta’s nominated treating doctor, which confirmed that Mr Sryta is not totally incapacitated for employment as assessed by the Medical Assessor.
(c) With respect to s 327(3)(d), the Medical Assessor fell into error by assessing
Mr Sryta as having a class 5 impairment for Employability, under the Psychiatric Impairment Rating Scale (PIRS).(d) Table 11.6 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (guidelines) which prescribes examples of activities to assist with scoring impairment in the area of employability. The Medical Assessor placed the Respondent in Class 5 and stated: “Mr Sryta has not worked since the subject injury and his anxieties and general avoidance are a significant impediment to any type of employment. He has no work capacity”.
(e) The following information has since been received which confirmed Mr Sryta was not in fact totally impaired with respect to employability (as required by Class 5) (a) Certificate of capacity, dated 3 February 2023; and (b) Report of
Dr Kumagaya, psychiatrist, dated 24 February 2023. The certificate of capacity dated 3 February 2023, certified Mr Sryta with capacity for some type of work from 2 February 2023 to 16 February 2023. The certificate also stated that
Mr Sryta is “Not to work for Serco” and “Unlikely [to ever work as] a DSO”. The report of Dr Kumagaya, treating psychiatrist, also supported Mr Sryta’s capacity to work two hours per day, two days per week.(f) The appellant conceded the certificate of capacity dated 3 February 2023, may have reasonably been obtained by the appellant prior to the medical assessment.
(g) On that basis, the further evidence in the form of certificate of capacity and report of the treating psychiatrist should be admitted as this evidence confirmed the Medical Assessor’s assessment under the category of employability was erroneous.
(h) Due to the way in which the Medical Assessor’s scores under the PIRS are aggregated to calculate the final WPI for psychological injuries, the difference between a Class 5 assessment for employability and a class 4 assessment for employability translates to a difference of 3% WPI and approximately $10,000 in lump sum compensation quantum. Further, the Medical Assessor assessed 22% WPI, which exceeds the threshold for worker with high needs, as defined in s 32A of the 1987 Act. Satisfying such a threshold significantly alters Mr Sryta’s return to work obligations and entitlements to compensation moving forward, as well as limits the appellant’s rights to conducting work capacity decisions. A reduction in just one class of the PIRS category for employability, from a Class 5 to a Class 4, would result in a reduction in impairment from 22% WPI to 19% WPI, thus substantially altering the parties’ rights and responsibilities throughout the claims management process moving forward.
(i) Accordingly, such an error made by the Medical Assessor with respect to employability, would cause substantial injustice and therefore further evidence as to capacity for work should be admitted.
(j) As contemplated by s 327(3)(b) and 327(3)(d) of the 1998 Act, this fresh evidence confirmed that the Medical Assessor’s assessment under the PIRS for employability was erroneous and such error translated to a substantial injustice.
(k) Mr Sryta should be re-examined by a member of a Medical Appeal Panel in light of this recent evidence as to capacity for work. A re-examination also includes a reassessment of all of the PIRS categories.
(l) The Medical Assessment Certificate issued by the Commission should be revoked, and an amended Medical Assessment Certificate issued in its place.
Mr Sryta‘s submissions include the following:
(a) The appellant employer asserted two grounds of appeal: (a) The availability of additional/relevant information, and (b) That the MAC contains a demonstrable error s.327(3)(d) of the 1998 Act. There can be no ‘demonstrable error’ in circumstances where the new material sought to be relied on is the basis for the error and was not considered by the Medical Assessor.
(b) The medical certificate of capacity from Dr Lim dated 3 February 2023 and the medical report of treating psychiatrist Dr Kumagaya dated 24 February 2023 were provided to the insurer directly by the doctors in question. The appellant, however, failed as part of this application to seek to rely on the following documentation that was also provided to the insurer: 1 Medical certificate of GP Dr Ben Dickson dated 12 January 2023 relating to period 12 January 2023 to
23 February 2023; 2 Medical report of Dr Lim, dated 2 February 2023; 3 Social therapy referral from Dr Lim dated 2 February 2023. 4 Supplementary statement of Mr Sryta.(c) The appellant failed to refer to two relevant elements of the documents it sought to rely on. The certificate of capacity of Dr Lim dated 2 February 2023 at page 2 under the heading “Capacity for Activities” includes comments “Not to work for Serco. Trial social therapy. Consider social support program.” The appellant omitted to include a reference to the trial of social therapy. Similarly, when dealing with Dr Kumagaya’s report, the appellant employer omitted any reference in its submissions to the sentence under the heading “work capacity” where
Dr Kumagaya listed the following: “Two hours/day, two days/week to engage in social rehabilitation program”.(d) The medical certification issued 12 January 2023, which Mr Sryta seeks to rely upon, was for total incapacity for work covering the period 12 January 2023 to
23 February 2023. Dr Lim also provided the insurer with a medical report in addition to the medical certificate the appellant seeks to rely on but the appellant did not put that report before the Commission in its Appeal.(e) Dr Lim in the report to the insurer of 2 February 2023 recorded the following at page 3:
“Capacity for work/retraining. He does not have the psychological capacity for work and suffers enduring trauma related symptoms. He will unlikely ever return to work within his education trying experience. He does not have current psychological capacity for retraining. He reports paranoia about going out, he has previously been under surveillance. This has hampered our treatment efforts, in a patient with sever PTSD. His treatment involves encouraging him to attend daily activities like going to the local shops. As discussed with Katie from QBE, I provided him with some capacity to allow for participation in a social support program, as he has become socially isolated. Please consider the social support program referral’.”
(f) The social therapy referral was the referral that Dr Lim referenced in his letter to the insurer and that he created following his discussion with ‘Katie from QBE’.
(g) The above was confirmed in the plaintiff’s supplementary statement.
(h) The appellant’s efforts to paint the certificate of capacity dated 3 February 2023 and the report of Dr Kumagaya dated 24 February 20023 in the fashion in which it did was disingenuous at best. The appellant’s efforts to tailor material that it had in circumstances where it also had the attached material that does not aid its argument, which properly should have been part of any such application or consideration of any appeal in the first instance, was very relevant to this application. In light of the attached material, the appeal is without merit given the explanations given by the medical practitioners for the change in certification.
(i) The appellant alleges that the MAC contains a demonstrable error and application of incorrect criteria in the PIRS category of employment. The essential basis for the appeal is an assertion the Medical Assessor ought to have applied a lower class within the category. The appellant relied on the fresh evidence dealt with above the relevance of which was debunked by the material attached to this Reply and sought to question the evaluation of assessments made by the Medical Assessor in the clinical setting.
(j) As observed, the Medical Assessor in issuing a MAC needed to identify the correct criteria as part of the medical assessment process. The appellant failed to identify the application of incorrect criteria. The appellant simply expressed an opinion that certain elements of the history recorded by the AMS suggested a lower scale but ignored those parts of the material that do not assist its argument.
(k) With respect to the demonstrable error ground in s 327 (3)(d) of the 1998 Act Hoeben J in Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 (Merza) at [39] noted:
“I do not propose to, nor is it necessary, that I define what “demonstrable error” is for the purposes of s.327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that “demonstrable error” is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.”
(l) No such error is readily apparent given an appreciation of the complete history associated with the treating doctors recent reporting and certification.
(m) In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins) Garling J ultimately observed that the classes in the PIRS were merely examples of activities that indicate an assessable level of disability and significantly that the boundaries between the classes are not ‘bright line boundaries’ (at [62] – [65]).
(n) In Ferguson v State of New South Wales & Ors [2017] NSWSC 887, Campbell J stated (at [33]):
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.’’
(o) Earlier In Jenkins Garling J made the following observations with respect to the assessment process before the AMS:
“52. Chapter 1 of the WorkCover Guides is a general description to those in the position of an AMS as to how to apply the Guides. Of particular importance in clause 1.5(a) is the statement which notes that assessing permanent impairment involves clinical assessment on the day of assessment.
53. A clinical assessment of a claimant is one, but not the only, method of accumulating information about a claimant. Clearly, other medical reports about the claimant’s condition, histories obtained from independent observers such as members of the claimant’s family, and histories obtained from the claimant themselves, either in the past, as contained in medical reports, or in the process of a consultation, are all matters which are legitimately able to be taken into account.
54. Clause 1.13 of the WorkCover Guides cannot reasonably be read in the way contended for by the plaintiff. A reasonable reading of that clause underlines the usual process engaged in by a medical expert when assessing the presenting condition, the diagnosis, and the severity of the condition which is being presented. Clause 1.13 requires medical specialists to exercise their clinical judgment. Whilst it is correct to say that the words in the following sentence in clause 1.13 require the medical expert to determine a degree of permanent impairment “… using the tables, graphs and methodology given …”, that does not mean that clinical judgment or assessment has no role to play in that process of determination of the degree of permanent impairment.
55. Particularly with the assessment of psychiatric or psychological impairment, so much, in my view, is self evident. There is no objective method by which the extent of a psychiatric impairment can be measured, unlike the objective measurement of a restriction on a degree of movement in an upper limb, by way of example, or an objective, and measurable, assessment of the extent of loss of hearing or eyesight.
56. In assessing the extent of a psychiatric impairment, the WorkCover Guides require the AMS to determine from all of the material at their disposal, whether, in respect of each functional area, the degree of impairment fits into one of the classes which range from no impairment to total impairment.
57. The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted."
(p) In Ballas v Department of Education (State of NSW) [2019] NSWSC 234 8 March 2019 Wright J observed: 69. ‘...the PIRS categories are as described in the Guidelines and are to be applied as required by the Guidelines. Because of their generality and the generic nature of the words used and examples given, however, application of the categories in accordance with the Guidelines involves the AMS using his or her professional expertise and judgment in the light of the clinical examination and any relevant history.’
(q) Mr Sryta, with reference to the statements of Garling J, Campbell J and Wright J above, observed that the fresh evidence relied on by the employer was incomplete and misleading such that there was no demonstrable error identified.
(r) If the Commission granted leave to admit the evidence relied upon by the employer, it should similarly allow the admission of the material above and having done so dismiss the application for appeal.
(s) In the event that the registrar feels the matter needs to go to an appeal panel then no further examination is required in light of the attached material.
(t) The MAC should be confirmed.
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.
Discussion
PIRS categories
The appellant alleged error in respect of the assessment of the PIRS categories of 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 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.
Employability
The appellant submitted that that further evidence had come to light, namely, the certificate of Dr Lim dated 3 February 2023 and the report of Dr Kumagaya dated 24 February 2023, which confirmed that Mr Sryta was not totally incapacitated for employment as assessed by the Medical Assessor. The appellant argued that the Medical Assessor fell into error by assessing Mr Syrta as having a class 5 impairment for Employability under the PIRS.
Firstly, the Appeal Panel noted that the Medical Assessor did not have access to the fresh evidence filed by the parties. He assessed Mr Sryta as Class 5 for employability on the basis of the evidence which had been filed by the partier before the examination by the Medical Assessor on 21 February 2023. The appellant did not appear to suggest that the Medical Assessor fell into error in making this assessment on the evidence that was before him at the time of assessment. The appellant argued that there was an error because of the fresh evidence that had been filed after the assessment.
The Appeal Panel did not consider that the Medical Assessor erred in rating Mr Sryta as Class 5 for employability at the time of the assessment.
Since the fresh evidence from both parties has been admitted, the Appeal Panel must consider whether Mr Sryta is totally impaired. The appellant submitted that it was not open to the Medical Assessor to find that Mr Sryta was totally impaired.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“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 Class 5 in relation to Employability noting:
"Mr Syrta has not worked since the subject injury and his anxieties and general avoidance are a significant impediment to any type of employment. He has no work capacity.”
On page 4 of the MAC, the Medical Assessor noted:
“I asked Mr Sryta about the surveillance material and online and social media posts. He said that he and his wife started a cleaning business in 2017, but he has never actually cleaned himself. I asked him about the Facebook and about the handyman work, and he said he was not even aware what that was about and has never done any handyman work. I asked about Saja Sryta, he noted this is his sister-in-law. I asked about Equifax Company, he said he has never heard of it.”
The Medical Assessor, in commenting on other medical opinions, noted that in terms of employability, Dr George rated this as Class 3 and believed that Mr Sryta could perform parttime work. The Medical Assessor wrote:
“…however, it is not clear how he came to this conclusion or what kind of work he could engage in. I rated a 5 as I noted that he continues to experience severe psychopathology. He is generally isolative and does not engage in any meaningful tasks, and I do not believe he has any work capacity.”
Dr Khan, in a report dated 5 May 2022, considered that Mr Sryta was not fit to work in any employment position due to the ongoing impacts of the subject injury on his mood regulation, motivation, energy, attention, concentration, memory, self-confidence, self-identity and trust in interpersonal relationships as well as his day-to-day functioning. Dr Khan rated Mr Sryta as Class 5 for Employability writing: “Mr Sryta cannot work at all due to the pervasiveness of his mental health and cognitive difficulties”.
As noted above, Dr Graham George, in a report dated 9 September 2022, considered that Mr Sryta had the capacity for part-time work in alternative duties and rated Mr Syrta as Class 3 in Employability.
Dr Kumagaya, in a report dated 24 February 2023, under “Work Capacity” noted: “Two hours/day, two days/week to engage in social rehabilitation program”.
Mr Sryta submitted that the medical certification issued 12 January 2023, which Mr Sytra seeks to rely upon, was for total incapacity for work covering the period 12 January 2023 to 23 February 2023.
The certificate of capacity of Dr Lim dated 2 February 2023 certified Mr Sryta as having capacity for some type of work for two hours a day two days a week from 2 February 2023 to 16 March 2023. However, at page 2 of the Certificate under the heading ‘Capacity for Activities’ includes the following comments: ‘Not to work for Serco. Trial social therapy… Consider social support program.’
Dr Lim in report dated 2 February 2023 wrote:
“Capacity for work/Retraining
He does not have the psychological capacity for work, and suffers enduring trauma related symptoms. He will unlikley ever return to work within his education, training, and experience.
He does not have the current psychological capacity for retraining.
He reports paranoia about going out, as he has previously been under surveillance. This has hampered our treatment efforts, in a patient with severe PTSD. His treatment involves [sic] encouraging him to attend daily activities, like going to the local shops.
As discussed with Katie from QBE, I have provided him with some capacity to allow for participation in a social support program, as he has become socially isolated. Please consider the social support program referral.”Dr Ben Dickson, in a certificate of capacity dated 12 January 2023 certified Mr Sryta as having no current capacity for any work from 1 January 2023 to 23 February 2023.
In a social therapy referral dated 2 February 2023, Dr Dickson noted that Mr Syrta “who had psychological distress and post-traumatic stress disorder symptoms as a result of work” would benefit from the program.
Mr Sryta, in a supplementary statement dated 17 April 2023 noted that the appeal was based on a medical certificate and a report from Dr Kumagaya that suggested he could do some work for two hrs a day two days per week. Mr Sryta wrote:
“4. In early February 2023 my Case Manager at QBE Katie and my GP Dr Lim had spoken about me engaging in a social rehabilitation program for two hours, two days a week. I also spoke about the program with my treating psychiatrist, Dr David Kumagaya,
5. Dr Kumagaya thought it was worth giving the program a try and on 2 February 2023 Dr Lim gave me a new Certificate that changed the Certificates I had been getting for the last two years saying I had no capacity to work to now say I had capacity for two hours, two days per week so that I could attend the social rehabilitation program.
6. There was never any discussion about me being able to get a job.
7. l continue to experience the symptoms I have been suffering with as a result of my
work-related psychological condition. My symptoms have remained unchanged. I
remain incapable of working.”The Appeal Panel considered all of the evidence including the fresh evidence which was filed by the parties. The Appeal Panel noted that the change in certification in Mr Sryta’s capacity to work was only made in order to allow him to participate in a social therapy program. This program is provided by the insurer and would appear to require treating doctors to certify a participating individual as capable of attending some hours per week, much as some educational programs do. Such a program is a form of treatment and was not evidence of a capacity to work.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel agreed with the Medical Assessor that an assessment of Class 5 for Employability was correct. The Appeal Panel was satisfied that the rating of Class 5 for Employability was not in error.
For these reasons, the Appeal Panel has determined that the MAC issued on
30 January 2023 should be confirmed.
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