Skinner v Kari Foundation Ltd - [2021] NSWPICMP 34

DETERMINATION OF APPEAL PANEL
CITATION:	Skinner v Kari Foundation Ltd [2021] NSWPICMP 34
APPELLANT:	Darren Skinner
RESPONDENT:	Kari Foundation Ltd
APPEAL PANEL:	Member William Dalley Dr Julian Parmegiani Dr Michael Hong
DATE OF DECISION:	23 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal against the assessment of whole person impairment based on Psychiatric Impairment Rating Scale with respect to areas of function “social and recreational activities, “travel” and “concentration, persistence and pace”; demonstrable error and application of incorrect criteria alleged; the appellant worker submitted the assessment failed to take into account his high level of function prior to injury and failure to consider relevant evidence of impairment; Held- the AMS had appropriately considered the relevant evidence and was entitled to rely on the information provided to him at the examination; Glen William Parker v Select Civil Pty Ltd applied; the respective assessments were open to the AMS on the evidence and no application of incorrect criteria nor demonstrable error was made out; MAC upheld.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 December 2020 Darren Skinner lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Christopher Bench, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 November 2021. The Medical Assessor, Dr Bench, was at the time of assessment, appointed as an Approved Medical Specialist (AMS) and will be referred to in these reasons as “the AMS”.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant, Mr Skinner, suffered a psychological injury on 17 October 2018 in the course of his employment as an Aboriginal Cultural Liaison Officer with the Kari Foundation Ltd (the respondent). He ceased work and consulted his general practitioner.
Mr Skinner subsequently moved to Coffs Harbour. He consulted another general practitioner who arranged psychological treatment. He received vocational rehabilitation but was unsuccessful in his attempt to return to work with a different employer.
In July 2019 Mr Skinner was examined by a consultant psychiatrist, Associate Professor Robertson, at the request of Mr Skinner’s solicitors for the purpose of a potential claim for lump-sum compensation. At that time Associate Professor Robertson diagnosed “adjustment disorder with anxiety and depressed mood.” The psychiatrist did not feel that Mr Skinner had reached maximum medical improvement at that time.
Associate Professor Robertson again examined Mr Skinner on 19 December 2019 in a video consultation. Associate Professor Robertson confirmed the diagnosis that he had made on the earlier occasion and felt that Mr Skinner’s condition was unlikely to change over the next 12 months. He assessed Mr Skinner as having mild impairment (Class 2) with respect to the Psychiatric Impairment Rating Scale (PIRS) categories of “self-care and personal hygiene”, “travel” and “social functioning” and Class 3 with respect to “social and recreational activities”, “concentration persistence and pace” and “employability”. On that basis Associate Professor Robertson assessed Mr Skinner in accordance with the Guidelines as having 15% whole person impairment (WPI).
In April 2020 Mr Skinner was examined by Dr Bisht at the request of the insurer. Dr Bisht diagnosed “adjustment disorder with mixed anxious and depressed mood” but felt that Mr Skinner had not reached maximum medical improvement at that time. Dr Bisht noted “no significant impairment” with respect to caring for others, ability to travel, ability to engage in social activities, ability to concentrate and work capacity.
Mr Skinner’s legal representatives filed an Application to Resolve a Dispute seeking lump sum compensation in accordance with the assessment of Associate Professor Robertson. The insurer disputed that Mr Skinner had reached maximum medical improvement and the extent of any impairment.
Consent orders were made on 12 October 2020 for referral of the medical dispute to the AMS for assessment. The AMS diagnosed Mr Skinner as suffering “persistent depressive disorder with anxious distress”. He assessed Mr Skinner in accordance with the PIRS as suffering moderate impairment (Class 2) in the areas of function “self-care and personal hygiene”, “social and recreational activities” and “concentration persistence and pace.”
Mr Skinner was assessed as having no deficit or minor deficit (Class 1) in respect of the area of function “travel” and as having moderate impairment (Class 3) in respect of the area of function “employability”. Applying Table 11.7 of the Guidelines, the AMS assessed Mr Skinner in accordance with the Guidelines as having 6% WPI as result of the subject injury.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. The material before the Appeal Panel is sufficient to enable the determination of the appeal. For the reasons set out below, the Panel has not identified appealable error and the power to re-examine the appellant is not enlivened.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the AMS 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 AMS that are relevant to the appeal are set out 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.
In summary, the appellant submits that the AMS misapplied the relevant criteria with respect to the PIRS categories “social and recreational activities”, “travel” and “concentration persistence and pace.” The appellant submitted that the evidence supported assessment of moderate impairment (Class 3) with respect to the category of function “social and recreational activities” whereas the AMS had assessed mild impairment (Class 2).
Similarly, the appellant submitted that the evidence supported assessment of moderate impairment (Class 3) with respect to the area of function “concentration persistence and pace” whereas the AMS had assessed mild impairment (Class 2).
Further, the appellant submitted that, on the basis of the evidence there should have been an assessment of mild impairment (Class 2) with the respect to the area of function “travel” whereas the AMS had assessed no deficit or minor deficit only (Class 1).
In reply, the respondent submits that the assessments made by the AMS were open to be made on the history obtained at examination and the available documentary evidence.

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[2] 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.
[2] [2006] NSWCA 284.
It is appropriate to consider separately the grounds of appeal with respect to each of the areas of function addressed in the appellant’s submissions.

Social and recreational activities

The appellant submitted that the AMS had “failed to consider all the relevant facts and this is a demonstrable error”. The appellant noted the pre-injury social activities recorded by Mr Skinner in his statement. The appellant noted that the AMS had recorded:
“The applicant noted a restricted range of social and recreational activities. On the other hand, he rides his motorcycle for pleasure, including socialising with some friends most weekends. He goes to the beach ‘I try to go every day’ to walk. On the other hand, he noted he is averaging less than 1000 steps per day. He goes surfing on occasions ‘I try to go every day’ and has surfed twice in the last week by himself. He is avoiding a lot of people. He is not a member of any clubs or associations. He has not gone to any pubs, clubs, café’s or restaurants in the nine months ‘before Covid’. On the other hand, since the work injury, he has essentially only been attending family birthdays. He is not involved in any team sports. He has not done any coaching for greater than 12 months. The applicant is teetering between there being no deficit and a mild impairment. On the other hand there has been some restriction in his social and recreational activities, which is most consistent with a mild impairment.”
The appellant submitted that the activity of motorcycle riding had not been done for pleasure but was for “medical treatment reasons” which should be treated as “riding for treatment”. The appellant further submitted that, although he “tried” to go for walks to the beach each day he was not necessarily able to achieve this and this also formed part of his treatment plan.
The view of the expert members of the Panel, based on clinical experience, is that only patients who experience at least some degree of pleasure from activities recommended as treatment such as walking and motorcycle riding, persevere with these activities. The fact that Mr Skinner maintains these activities suggests that there is a reasonable degree of enjoyment and the activities were appropriately viewed by the AMS as evidence of mild impairment rather than moderate impairment.
Associate Professor Robertson in his report dated 29 July 2019 noted at that time; “He continues to coach soccer and maintain an interest in the local competition, although there has been some reduction in his level of social interaction and motivation to keep company with friends and family.”
In a subsequent report (incorrectly dated 29 July 2019) which followed on examination on 19 December 2019, Associate Professor Robertson recorded; “He reports having ‘no social life’. He does not accept invitations to social occasions and often makes excuses not go out”. Associate Professor Robertson did not refer to activities such as going for walks or undertaking extended motorcycle rides in the company of friends.
With respect to Associate Professor Robertson’s reports, the AMS noted: “the applicant’s participation in regular social and recreational activities such as regular motorcycle rides and catching up with friends during the week are inconsistent with moderate impairment in social and recreational activities.”
The AMS also noted the report of the independent medical expert, Dr Yajuvendra Bisht, the psychiatrist who examined Mr Skinner on behalf of the respondent. He noted that Dr Bisht had recorded:
“It was noted he had only surfed three times in the last three months. It was noted he had previously coached football ‘but I can’t do it this year, it worried me too much. I used to enjoy fishing and camping but I haven’t been doing that too much’. … He noted there was no significant impairment with regard to caring for others, ability to travel, attend a social activities, concentrator work capacity.”
The AMS carefully and comprehensively reviewed the documentary evidence and clinical reports. The AMS noted “minor inconsistencies identified between the clinical evaluation and collateral materials presented for review.” The AMS noted that although Mr Skinner’s statement recorded that he would rarely go to the beach, he was in fact going most days and was swimming, surfing and/or walking. The AMS noted that on motorcycle journeys he was accompanied by friends as well as occasions when he rode on his own.
The Panel notes that the class descriptors provided in the Guidelines[3] in respect of this area of function specify: “Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team)”. The Panel accepts that these are examples only and it is appropriate to have regard to Mr Skinner’s pre-injury level of function in assessing the level of impairment.
[3] Table 11.2.
Although the appellant submits that his activities should not be regarded as “recreational” and that he often struggles to engage in those activities, it was open to the AMS to accept that, despite the difficulties, Mr Skinner does undertake the activities which the AMS noted in connection with his reasons for assigning mild impairment.
Reviewing the decision of an appeal panel in Glen William Parker v Select Civil Pty Ltd[4] (Parker), Harrison AsJ noted:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (‘Wark’), where it is stated at [33]:
‘...the pre-eminence of the clinical observations cannot be understated. 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. ...’
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. (Ferguson [24].”
[4] [2018] NSWSC 140.
The AMS in assessing Class 2 impairment in respect of the area of function “social and recreational activities” took into account the limitations referred to by the appellant. The AMS accurately noted the reports of Associate Professor Robertson and other expert reports in evidence. In the opinion of the Panel it was open to the AMS to conclude that, at the time of assessment, Mr Skinner was suffering mild impairment with respect to this area of function and no application of incorrect criteria or demonstrable error has been made out.

Travel

The appellant submitted that the AMS had “incorrectly assessed him at Class 1, when it would be more appropriate to assessed [sic] him at Class 2. The AMS failed to consider all the relevant facts and this is a demonstrable error.”
The AMS recorded:
“The applicant noted he rides his motorcycle, three to four times per week ‘I do a lot of riding on the bike’ such as up to 200 kilometres in a day, travelling from Coffs Harbour to Dorrigo, Glenray and Cook Crossing. He noted he has driven up to two hours by himself, such as from Coffs Harbour to Lismore three weeks prior to the clinical evaluation. As such, it is evident that the applicant is able to travel to novel environments on an independent basis frequently riding his motorcycle or driving for prolonged periods of time. As such, there is no assessable impairment”.
The appellant relied on the submissions made in support of the ground concerning “social and recreational activities”. The appellant submitted that, although Mr Skinner was able to perform these journeys, “he is not comfortable in doing so and struggles”. The appellant submitted “the AMS has a duty to not only take down the activities being conducted by the appellant, but also whether he struggles to do so.”
The history recorded by the AMS demonstrates an ability to travel to unfamiliar places without supervision. That evidence clearly demonstrates the capacity to travel over a substantially wider range than the local area. Classification within Class 2 is described in Table 11.3 of the Guidelines “mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour”.
Although the Panel accepts that this descriptor is an example only is clear that Mr Skinner, the time of his examination by the AMS, was exhibiting a capacity to travel well beyond the ambit suggested by the Class 2 descriptors, notwithstanding that he may feel discomfort when doing so.
It was open to the AMS on the basis of his examination and the further evidence to assess Mr Skinner as appropriately falling within Class 1 with respect to “travel” and no application of incorrect criteria or demonstrable error is made out.

Concentration, Persistence and Pace

The appellant submitted that the AMS had incorrectly assessed Mr Skinner at Class 2. In doing so it was alleged that “the AMS failed to consider all the relevant facts and this is a demonstrable error.”
The appellant noted that the AMS had reported reasons for assigning Class 2 to this area of function:
“When asked as to any activities he partakes in that require sustained attention and concentration he noted ‘riding my motorbike I guess, through the bush you’ve gotta focus on where you’re going and what you’re doing’ noting he rides his motorcycle both on roads and bush trails. He noted he has been reading motorcycle manuals for up to 30 minutes ‘at the most’. He has not done any significant repair jobs on his motorbike. As such, he would be able to complete a basic course or a standard course at a slower pace, which is most consistent with a mild impairment.”
The appellant noted that the descriptor in respect of Table 11.5 provides in respect of Class 3:
“moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicles, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The appellant submitted that Mr Skinner was unable to make significant repairs to his motor vehicle, type long documents or follow a pattern for making clothes, tapestry or knitting. While the Panel accepts this may be the case, there is no evidence to suggest that Mr Skinner was able to perform these actions prior to his injury.
The AMS noted under the heading “consistency of presentation”:
“With regard to his incapacity to follow conversation, such was clearly not the case during the evaluation where he was able to participate in lengthy evaluation without the need for a break or interruption. He was able to respond to all questions in a relevant logical and coherent manner.”
When reviewing the reports in evidence the AMS noted with respect to Associate Professor Robertson’s later report: “The applicant’s description of being able to read motorcycle repair manuals for up to 30 minutes is inconsistent with a moderate impairment in concentration, persistence and pace.”

On the basis of his observations on examination and the history provided at that time, the AMS was entitled to assess Mr Skinner as falling within Class 2, mild impairment, with respect to concentration persistence and pace. As noted in Parker, the AMS had the advantage of interaction with Mr Skinner in the course of his examination and he provided cogent reasons for his assessment on the basis of what he was told by Mr Skinner and his observations of Mr Skinner during the examination.
The Panel is satisfied that no demonstrable error has been shown nor any application of incorrect criteria. The assessment was open to the AMS on the basis of the evidence before him.

Conclusion.

In respect of each of the three areas of function which are the subject of the appeal, the Panel is satisfied that the assessment by the AMS did not result from the application of incorrect criteria and no demonstrable error has been established. For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 2021 should be confirmed.

William Dalley
Member

Dr Julian Parmegiani
Medical Assessor

Dr Michael Hong
Medical Assessor

23 March 2021