Smailes v Secretary, Department of Education
[2024] NSWPICMP 877
•19 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Smailes v Secretary, Department of Education [2024] NSWPICMP 877 |
| APPELLANT: | Craig Smailes |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Nick Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 19 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker appealed against the making of a one-tenth deduction under section 323 in circumstances where the Medical Assessor (MA) found prior condition had fully resolved prior to injury; there was no explanation from the MA as to how the prior condition has contributed to the overall level of permanent impairment assessed; in these circumstances and on the available evidence, there was no basis upon which to make a section 323 deduction and the Medical Appeal Panel considered that the MA was in error in making a deduction of one-tenth for reasons which were not adequately explained in terms of the correct criteria which is how the prior condition has contributed to the level of permanent impairment assessed; MA’s own path of reasoning does not support the making of a deduction rather it supports the opposite which is a finding that no deduction is justified in this case; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 September 2024, Craig Smailes (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 21 August 2024.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.
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 applicant suffered psychological injury in the course of his employment as an assistant principal with the respondent, with a deemed date of injury of 18 November 2020. Liability for the applicant’s injury is accepted.
On 26 May 2023, the applicant served a s 66 permanent impairment claim for compensation alleging he suffered a 19% whole person impairment (WPI), relying on the opinion of
Dr Martin Allan, independent medical examiner (IME) dated 8 May 2023. The applicant alleges he suffered major depressive disorder with anxious distress and alcohol misuse disorder. The respondent disputed the claim, relying on the opinion of Dr Nicholas Cassimatis, IME who assessed a 13% WPI.The appellant was assessed by the Medical Assessor on 6 August 2024. He diagnosed persistent depressive disorder and assessed 7% WPI. In so finding, the Medical Assessor accepted the history provided to him by the appellant and found the appellant’s presentation consistent with that history.
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 Procedural Direction PIC7.
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 because there is no issue the history and symptoms provided by him were accepted by the Medical Assessor and are not in issue.
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.
In summary, the appellant submits the Medical Assessor made three errors, namely:
(a) failing to diagnose or to consider concurrent diagnoses in the nature of alcohol misuse disorder, a condition supported by the IME evidence of both parties;
(b) assessing the appellant’s impairment for self-care and personal hygiene as “mild” class 2 under the psychiatric impairment rating scale (PIRS) ratings, which is inconsistent with the findings on examination and a proper application of the guidelines, and
(c) assessing the appellant’s impairment for social functioning under the PIRS ratings as a “mild” class 2, also contrary to the findings on examination and a proper application of the guidelines.
In reply, the respondent submits:
(a) in making his diagnosis, the Medical Assessor is not required to refer to all aspects of the opinion of the appellant’s IME, and that it was apparent the Medical Assessor had carefully considered the evidence before him, including the IME evidence, as he was required to;
(b) the examples in the PIRS guidelines are non-exclusive examples of impairment only, the Medical Assessor’s clinical observations must take primacy and it was open to him to exercise his clinical judgement in assessing the appellant as suffering a class 2 impairment for self-care and personal hygiene, and
(c) the Medical Assessor’s assessment of a class 2 impairment on social functioning was both available to him and appropriate given the descriptor of class 2 in the PIRS ratings.
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 (Vegan) 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.
It is appropriate to deal with each of the grounds of appeal in turn.
Concurrent diagnosis of alcohol misuse disorder
Although the Medical Assessor did not make a concurrent diagnosis of alcohol misuse disorder, he plainly was aware of, and considered, the appellant’s alcohol misuse. When addressing the appellant’s general health, the Medical Assessor said:
“He drinks seven days per week, up to three bottles of wine or six beers and a bottle of wine at a sitting. He said he has been drinking to this extent ever since he left Jesmond. He said he has alcohol cravings and alcohol withdrawal symptoms. He has never had treatment for alcohol use disorder other than advice from his GP, psychologist and psychiatrist. He has never been to rehabilitation. He is concerned about his drinking and, at other times, is indifferent. He denied illicit or recreational drug use, problem gambling or any forensic history.
He has a history of gout, hypertension, and atrial fibrillation, first diagnosed in 2021.”
Contrary to the appellant’s submissions, the Medical Assessor has provided reasons for arriving at his diagnosis. He did so in setting out the findings on physical examination, made appropriate reference to the material before him (which he is presumed to have read) and set out an appropriate summary of the injuries and diagnoses.
As the respondent submitted, whilst there is an obligation to give reasons, they need not be extensive or provide a detailed explanation of the criteria applied by the Medical Assessor in reaching a professional judgment: see Vegan and Velevski v Glad Cleaning Services Pty Ltd [2021] NSWPIPMP 136 at [63], where it was made clear a Medical Assessor is not required to discuss all the diagnoses which were expressed in the material referred to them.
On balance, there is no basis established for the appellant’s proposition that the Medical Assessor did not appropriately consider a diagnosis of alcohol misuse disorder. He clearly addressed whether or not there was the presence of specific diagnostic criteria for this disorder, and relevant treatment. Accordingly this ground of appeal must fail.
Misapplication of PIRS criteria relating to self-care and personal hygiene
The Medical Assessor accepted the history provided to him by the appellant, including that relating to this PIRS category, and described the appellant as a person of truth who was not prone to embellishment. The relevant history and findings in relation to self-care and personal hygiene was:
“He said he shaved his head recently. He brushes his teeth once or twice per day. He skips showering occasionally. He has lost 12kg since leaving work. He avoids fast foods. He often goes a day without eating.
His wife does all the grocery shopping and most of the cooking as she is a hospitality teacher and a good cook. They used to do the grocery shopping together. Now she does it or they do click and collect. He has not cooked for six weeks. He has not used the barbecue for seven to eight months and previously used to cook on it three to four nights per week. He is worried he is putting pressure on his wife…”
The Medical Assessor also noted the appellant had “taken no particular care with his appearance” when he examined him. He noted the statement of the appellant’s wife to the effect that:
“.. he had difficulties finishing things and starting projects around the house and not finishing them, and having difficulties paying attention to things.”
In setting out his reasons for assessing the appellant as category two in self-care and personal hygiene, the Medical Assessor said:
“He can independently maintain a minimum level of hygiene and nutrition. However, he is not as particular about his self care as before the injury. He skips showering and is likely to skip meals on occasion.”
The difficulty with the Medical Assessor’s findings in relation to this category is his own findings of extensive weight loss, not preparing food for many weeks, or shopping, confirms the appellant falls within class 3, namely “cannot live independently without regular support, e.g. requires prompting to shower daily and wear clean clothes, does not prepare own meals, frequently misses meals, relies on family member or community nurse visits.”
In the view of the Appeal Panel, given the accepted history of the appellant and the material before him, the Medical Assessor erred by incorrectly applying the PIRS guideline in relation to self-care and personal hygiene by assessing a class 2 mild impairment.
The Medical Assessor himself noted the appellant:
(a) skips showering;
(b) often goes a day without eating and has lost 12kg since leaving work;
(c) had not cooked for six weeks before the examination, as opposed to previously cooking 3-4 nights per week;
(d) does none of the grocery shopping, which now falls to his wife;
(e) does none of the financial management for the family;
(f) drinks seven days per week, up to three bottles of wine or six beers and a bottle of wine at a sitting, and
(g) had taken no particular care for his appearance on the day of examination.
Although the Medical Assessor was aware of the appellant's drinking habit, he did not consider it when determining the class ratings in this category. The appellant increased his alcohol intake after his work injury and is now drinking at a level that may negatively impact his social, physical and mental health, a sign of impaired self-care.
In the view of the Appeal Panel, the symptoms described by the appellant, confirmed by his wife and most importantly accepted as truthful by the Medical Assessor, when properly applied to the PIRS guidelines, give rise to an appropriate finding of a class 3 moderate impairment, rather than a class 2 mild one. The Medical Assessor has carefully set out a number of ways in which the appellant cannot and does not attend to his self-care and personal hygiene to a minimum level, yet has incorrectly applied the criteria. As such, the Appeal Panel is of the view the Medical Assessor applied incorrect criteria in assessing the appellant, and also made an obvious error on the face of the MAC.
As such, the findings in relation to self-care and personal hygiene will be revoked and a moderate impairment substituted. Accordingly, this ground of appeal succeeds.
Social functioning
The Appeal Panel does not find any error on the part of the Medical Assessor in assessing the appellant as suffering a class 2 mild impairment for this PIRS category. The material before the Medical Assessor and the history taken by him confirms that while the appellant’s marriage has been strained by his injury, it is intact and supportive, as are the relationships with his other family members. The Medical Assessor also noted the appellant has been able to maintain non-familial relationships, although he has lost some friendships. The appellant has travelled with his family, including to Bali on one occasion and with his wife to France. According to the history obtained, there was no talk of separation.
Additionally, the appellant meets with a group of men to practice Wim Hof breathing techniques and to take ice baths. He attends rugby training with his son, volunteers with Hunter Wildlife and manages a second grade Shute Shield rugby team.
In the view of the Appeal Panel, whilst the appellant is no doubt impaired to some extent in his social functioning, the mild class 2 impairment found by the Medical Assessor was appropriate and open to him on the evidence.
Accordingly, this ground of appeal will fail.
SUMMARY
Having found the appellant’s impairment in relation to self-care and personal hygiene is appropriately categorised as class 3 moderate, it follows the appeal will be allowed.
The revised PIRS classes are in order, 3,2,2,2,3,3. Total 15, median class 3 = WPI 15%.
For these reasons, the Appeal Panel has determined that the MAC issued on
21 August 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W22584/24 |
Applicant: | Craig Smailes |
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 Clayton Smith 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | Psychological | Psychological | Psychological | 15% | na | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
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.
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