South Coast Private Pty Ltd v Veljanoski
[2024] NSWPICMP 671
•20 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | South Coast Private Pty Ltd v Veljanoski [2024] NSWPICMP 671 |
| APPELLANT: | South Coast Private Pty Ltd |
| RESPONDENT: | Carla Veljanoski |
| APPEAL PANEL | |
| MEMBER: | Jacqueline Snell |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 20 September 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant submitted Medical Assessor (MA) should not have proceeded with a telehealth assessment; MA failed to order additional testing; MA failed to provide any or adequate reasons for his assessment of the psychiatric impairment rating scale (PIRS) category of concentration, persistence and pace; MA failed to have regard to the treating medical evidence before him; MA erred in his assessment of the PIRS category of travel; MA failed to identify the diagnostic criteria for his diagnosis of major depressive order with anxious distress comorbid with an alcohol use disorder; Held – the Medical Appeal Panel (the Panel) accepted that the MA was in error in failing to demonstrate he had regard to the PIRS categories detailed in the clinical notes of the respondent’s treating psychiatrist and in failing to identify the diagnostic criteria for his diagnosis of major depressive disorder; the Panel did not consider either of these errors altered the MA’s assessment of the PIRS categories with which the appellant quibbles; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 June 2024 South Coast Private Pty Ltd (South Coast Private) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 May 2024.
South Coast Private 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/or
· 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
Ms Veljanoski made a claim for permanent impairment compensation resulting from psychological injury arising out of or in the course of her employment with South Coast Private, with a deemed date of injury of 16 November 2022. An Application to Resolve a Dispute was lodged with the Personal Injury Commission (Commission) and a Reply was lodged with the Commission in response. On 30 April 2024 the Commission referred Ms Veljanovski’s claim to a Medical Assessor.
The Medical Assessor examined Ms Veljanoski on 20 May 2024 and the MAC in which the Medical Assessor assessed Ms Veljanoski as having sustained 22% whole person impairment resulting from her psychological injury, issued on 22 May 2024.
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 Ms Veljanoski to undergo a further medical examination because while the Medical Assessor erred in failing to (a) demonstrate he had regard to the Psychiatric Impairment Rating Scale (PIRS) categories detailed in the clinical notes of Ms Veljanoski’s treating psychiatrist, and (b) failed to identify the diagnostic criteria for his diagnosis of major depressive disorder with anxious distress comorbid with an alcohol use disorder, the Appeal Panel did not consider either of these errors altered the Medical Assessor’s assessment of the PIRS categories of ‘concentration, persistence and pace’, and ‘travel’, being the PIRS categories with which South Coast Private quibbles.
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, South Coast Private submits that the MAC be revoked, and Ms Veljanoski be re-assessed in person by an alternate Medical Assessor. South Coast Private submits:
(a) the Medical Assessor should not have proceeded with an assessment via telehealth after identifying that his examination was ‘necessarily limited’ by the format of the assessment;
(b) the Medical Assessor failed to order additional testing, if required;
(c) the Medical Assessor failed to provide any or adequate reasons for his assessment of the PIRS category of ‘concentration, persistence, and pace’;
(d) the Medical Assessor failed to have regard to the treating medical evidence before him;
(e) the Medical Assessor further erred in his assessment of the PIRS category of ‘travel’, and
(f) the Medical Assessor failed to identify the diagnostic criteria for his diagnosis of major depressive disorder with anxious distress comorbid with an alcohol use disorder.
In reply, the Ms Veljanoski submits:
(a) the Medical Assessor turned his mind to whether to proceed with an assessment via telehealth and decided affirmatively;
(b) the Medical Assessor turned his mind to whether additional testing in the nature of a formal cognitive assessment was required and decided negatively;
(c) the Medical Assessor correctly identifies the PIRS scales examples in the Guides are not intended to be exclusive or prescriptive and has given adequate reasons for his assessment of the PIRS category of ‘concentration, persistence and pace’;
(d) the Medical Assessor demonstrated his regard to the treating clinical records of Ms Veljanoski’s treating psychiatrist, Associate Professor Davies (A/Prof Davies);
(e) the Medical Assessor made no error in his assessment of the PIRS category of ‘travel’ despite there being no corroborative evidence before the Commission to verify Ms Veljanoski’s belief that the ‘minor accident’ in which she was recently involved was caused by a lapse in concentration, and
(f) the Medical Assessor made no error in failing to identify the diagnostic criteria for his diagnosis of major depressive disorder with anxious distress comorbid with an alcohol use disorder.
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.
Review of the MAC
The Medical Assessor assessed Ms Veljanoski by videoconferencing, which is the usual mode of assessment by Medical Assessors in the Commission, and no alternate mode of assessment was requested by either party. While the Medical Assessor referred to the mode of assessment as “telehealth” it is evident the Medical Assessor was able to visually observe Ms Veljanovski during assessment as he made reference to her presenting with “reasonable self-care and neatly painted nails” and observed her to be “frequently tearful” with her effect conveying a high level of emotion.
The Medical Assessor recorded a deemed date of injury of 16 November 2022. The Medical Assessor noted Ms Veljanoski had previously been employed as a medical administrator with South Coast Private. The Medical Assessor noted Ms Veljanoski commenced working with South Coast Private in April 2022 and ceased working with South Coast Private on 23 December 2022. The Medical Assessor noted Ms Veljanovski had not returned to work since then.
The Medical Assessor described Ms Veljanoski as currently living with her partner and his seven-year-old daughter. Ms Veljanovski reported she had moved from living alone to living with her partner and his daughter because her family members “were concerned about her increasing withdrawal and reduction in communication with them.” Ms Veljanoski reported she found living with other people difficult as she cannot be as private and independent as she would like. However, the Medical Assessor noted Ms Veljanoski’s eight-year-old grandson stays with her overnight one day each week, which she enjoyed.
The Medical Assessor noted Ms Veljanovski estimated she was drinking three litres of spirits each week, usually whiskey, and had recently received medical advice to abstain from alcohol due to the presence of abnormalities in her blood results.
Relevant to his findings on clinical examination the Medical Assessor wrote:
“The assessment today was by telehealth and so mental state examination was necessarily limited. Ms Veljanoski showed reasonable self-care and had neatly painted nails. She managed the interview situation adequately though was objectively and subjectively very anxious throughout. She was frequently tearful which she apologised for and appeared embarrassed by. Her affect conveyed a high level of emotion, mostly anxiety, frustration, sadness, and embarrassment. Her mood was objectively and subjectively low with increased anxiety. She acknowledged suicidal ideas in the past though denied that these were current or recent. Her thought form was normal. Her thought content revealed themes of self-criticism, shame and embarrassment with respect to her current situation and how it had developed. There were prominent negative themes as well as self-criticism in keeping with a depressive syndrome. There were no abnormal beliefs in the form of delusions or over-valued ideas, and no abnormal perceptions. Ms Veljanoksi was fully alert and orientated at interview.
I did not carry out a formal cognitive assessment as it is very likely this would have found some impairment due to Ms Veljanoski’s high anxiety and emotional distress at the time of her interview. Her attention and concentration were adequate for the purpose of the interview though were undoubtedly affected by her level of emotional distress at the time.”
The Medical Assessor provided his summary of injuries and diagnoses:
“Ms Veljanoski is a 45-year-old woman who lives with her partner and his seven-year-old daughter. She developed an adjustment disorder with mixed anxiety and depressed mood in the context of difficulties in the relationship with her manager in the latter months of 2022. Despite treatment over the last 18 months or so, this has progressed into a major depressive disorder with anxious distress comorbid with an alcohol use disorder.”
In providing his diagnosis the Medical Assessor did not identify the diagnostic criteria for his diagnosis of major depressive order with anxious distress comorbid with an alcohol use disorder.
Relevant to his assessment of the PIRS category of ‘concentration, persistence, and pace’, which he assessed to be Class 3, the Medical Assessor provided the following reasons for his decision:
“Ms Veljanoski describes a pervasive reduction in her concentration and memory. She attributes this to her low mood and increased levels of anxiety. She no longer reads novels though she does read some material on her phone at night to assist falling asleep. She estimates that she will do this for approximately 10 minutes. She does some online shopping though her partner will always check the order before it being submitted to ensure that there are no errors. Her poor concentration is a key reason to her abandoning driving. She can do some household chores such as washing clothes, though has had some accidents when cooking which may be related to impaired concentration. At interview her concentration is reduced due to her increased level of anxiety though an accurate quantification of this at assessment interview is not validly possible.”
Relevant to his assessment of the PIRS category of ‘travel’, which he also determined to be Class 3, the Medical Assessor provided the following reasons for his decision:
“Ms Veljanoski stopped driving in February of this year after a minor accident. She believes that her concentration is inadequate for driving and she is fearful of causing an accident.
Ms Veljanoski now will travel only when driven by her partner or another support person. She describes a marked increase in anxiety when a passenger in a car and so avoids travel if possible. She does not use public transport. She has left her farm only twice in recent months to go for a walk on a local cycle track for exercise.”
When explaining his reasons for his opinion and assessment of whole person impairment the Medical Assessor relevantly referred to the medical certificates and clinical notes of Ms Veljanoski’s general practitioner, Dr Uchendu, and the clinical notes of Ms Veljanoski’s treating psychiatrist, A/Prof Davies. However, the Medical Assessor did not refer to the clinical notes of Ms Veljanoski’s treating psychologist, Joe Pisana.
The Medical Assessor wrote of Dr Uchendu’s various medical certificates:
“Dr Uchendu makes a diagnosis of anxiety/depression resulting from workplace bullying.”
The Medical Assessor wrote of Dr Uchendu’s clinical notes:
“The entry of 9th January 2023 describes anxiety and mood symptoms developing in the context of workplace difficulties. The medication agomelatine is prescribed and referral to psychologist J Pisana.”
The Medical Assessor wrote of A/Prof Davies’ clinical notes relevant to the period 21 July 2023 to 9 November 2023:
“A/Prof Davies describes mood and anxiety symptoms plus excessive alcohol use. He gives a provisional diagnosis of moderate depression or adjustment disorder. He notes binge drinking of alcohol. He modifies medication.
Ms Veljanoski is impaired in concentration, though she reads, and is not very active in the day, though she can leave her home at times.
Ms Veljanovski rates her concentration as ‘same as usual’ on the General Health Questionnaire completed in July 2023, though on the WHODAS she indicates moderate difficulty in concentrating for more than 10 minutes and severe difficulties in learning a new task. She indicates severe difficulties in relation to other people and participating in society.”
Review of the treating medical evidence
Dr Uchendu
Dr Uchendu practises out of Windang Family Medical Centre. Ms Veljanoski has come under the general medical care of Dr Uchendu and a number of the Certificates of Capacity issued by Dr Uchendu are in evidence, all of which provided diagnosis of “Anxiety/depression resulting from workplace bullying” and medical management in the nature of medication and psychological review with Mr Pisana.
The clinical notes of Windang Family Medical Centre relevant to Ms Veljanoski, printed as of 6 June 2023, are in evidence. The clinical notes demonstrated Ms Veljanoski consulted with Dr Uchendu on 9 January 2023 with anxiety/depression with Dr Uchendu noting a history of “anxiety, work issues, bossy boss” and referring Ms Veljanoski for psychological review with Mr Pisana. It is evident from the clinical notes that Ms Veljanoski received psychological treatment on a regular basis and continued to present to Dr Uchendu with psychological fragility.
Mr Pisana
Mr Pisana practises out of Belvista Psychology. Ms Veljanoski has come under the psychological care of Mr Pisana and the clinical notes of Belvista Psychology as of 11 August 2023 are in evidence. The clinical notes demonstrated Ms Veljanoski was first reviewed by Mr Pisana on 10 January 2023 with complaint of psychological distress against a backdrop of work.
It is evident from the clinical notes that Ms Veljanoski continued to meet with Mr Pisana on a regular basis and when last reviewed on 7 August 2023 Mr Pisana relevantly wrote:
“Phone session, due to unable to drive from lack of sleep. Still not sleeping well. Has been taking melotin and this helps somewhat with sleep, Dr Davey has increased various medications, but she is not generally happy with taking a lot of medications. She reports that Dr Davey has now diagnosed her with severe anxiety disorder, possible PTSD and sleep disorder. She is not driving very much as her lack of sleep does not make her feels she is safe driving, and several times has had near misses and recently went through a red light which frightened her severely. Her condition now updated from Adjustment Disorder to Severe Anxiety Disorder, possible PTSD and Sleep Apnoea.”
A/Prof Davies
Ms Veljanoski has come under the psychiatric care of A/Prof Davies, and A/Prof Davies’ clinical notes as of 1 March 2024 are in evidence. The clinical notes demonstrated Ms Veljanoski first consulted with A/Prof Davies on 21 July 2023 with complaint of psychological distress against a backdrop of work. At that time A/Prof Davies provided a provisional diagnosis of moderate depression and adjustment disorder. At that time A/Prof Davies relevantly assessed Class 2 for the PIRS category of ‘travel’ and assessed Class 2 for the PIRS category of ‘concentration, persistence and pace’. Ms Veljanovski also completed a WHODAS questionnaire on 21 July 2023.
On review on 9 November 2023, A/Prof Davies described Ms Veljanoski as continuing to be “up and down”, with her drinking remaining significantly problematic. When last reviewed on 12 October 2023 A/Prof Davies described Ms Veljanoski as “still drinking a lot” and noted she reported having problems coping with day-to-day things and “feels she is being followed.” A/Prof Davies reported Ms Veljanoski’s concentration was poor “but she reads.” A/Prof Davies noted Ms Veljanoski remained under psychological care. He prescribed an increase in her antidepressant medication.
Review of the independent medical evidence
Ms Veljanoski was assessed by Dr Khan in his capacity as independent medical examiner on 16 August 2023, via videoconferencing, being the same mode of assessment used by the Medical Assessor. Dr Khan is a psychiatrist. Dr Khan recorded a consistent history of injury and recorded a history of care under Dr Uchende and Mr Pisana. Dr Khan relevantly noted Ms Veljanoski’s current functioning “negatively impacted” her travel and her concentration, persistence and pace. Following his interview with Ms Veljanoski, review of the information provided to him, which included the clinical notes of Windang Family Medical Centre and Belvista Psychology, Dr Khan provided diagnosis of major depressive disorder with anxious distress with development of the comorbid condition of alcohol abuse, both diagnosis being in accordance with DSM-4 diagnostic criteria, rather than DSM-5 diagnostic criteria.
Dr Khan described Ms Veljanoski’s psychological injury “severe in its extent”.
Dr Khan assessed Class 2 for the PIRS category of ‘travel’ with reasoning “Ms Veljanoski is able to travel to local places without a support person although she struggles with anxiety and avoidance of crowds” and assessed Class 3 for the PIRS category of ‘concentration, persistence and pace’ with reasoning “Ms Veljanoski struggles to maintain her attention and concentration. She has difficulty focusing on cognitively challenging tasks such as reading. Ms Veljanoski is easily distracted, and her memory is impaired.”
Dr Khan assessed Ms Veljanoski with 19% whole person impairment.
Ms Veljanoski was initially assessed by Dr Berry in his capacity as independent medical examiner on 14 April 2023 and provided a report dated 17 April 2023, which is not in evidence. Dr Berry is a psychiatrist. At that time, Dr Berry provided diagnosis of adjustment disorder, being diagnosis in accordance with DSM-5 diagnostic criteria.
Ms Veljanoski was re-assessed by Dr Berry on 22 November 2023, via videoconferencing, being the same mode of assessment used by the Medical Assessor and Dr Khan. Dr Berry reported a deterioration in Ms Veljanoski’s psychological injury since he assessed her last. Dr Berry noted Ms Veljanovski remained under the general care of Dr Uchende and Mr Pisina. Dr Berry described Ms Veljanoski as meeting with Mr Pisina on a fortnightly basis, with Ms Veljanoski reporting she “finds it very helpful to have someone to speak to.” Dr Berry relevantly said of Ms Veljanoski:
“She cooks a little but feels her reactions are slightly delayed and she has accidently burned herself a number of times.
…
She can drive locally on her own but cannot tolerate being in the car with other people as she feels anxious and out of control. She struggles with concentration when driving as she can be distracted by her thoughts. She has missed traffic lights changing colour on some occasions. She generally only drives to medical appointments.
…
She feels her concentration is poor. When watching television, she ‘checks out’ after 10 minutes. She cannot sustain focus for a movie. She will read things on her phone but does not have the concentration to read books.
She has not worked this year. She had one job interview and felt extremely anxious afterwards. She vomited and presented to hospital where she was admitted to a medical ward. They concluded the vomiting was likely related to anxiety and she was discharged. This was on 24 May 2023.”
Following his interview with Ms Veljanoski on this occasion and review of the information provided to him, which included Dr Khan’s report dated 16 August 2023 and clinical records of Dr Uchendu, Dr Berry said while he agreed with Dr Khan that the most appropriate diagnosis is that of a major depressive disorder with anxious distress, in light of the fact Ms Veljanoski was able to “cut down” her problematic drinking when she wanted to without reported withdrawal symptoms, he was not the opinion Ms Veljanoski currently met the diagnostic criteria for an alcohol use disorder.
Dr Berry assessed Class 2 for the PIRS category of travel with reasoning “she can travel independently locally. She relies on her partner for longer trips” and assessed Class 3 for the PIRS category of ‘concentration, persistence and pace’ with reasoning “her pace during the review today was largely normal. However, she reports issues with concentration across multiple domains – burning herself when cooking, issues with driving and inability to focus on reading except for short articles. I regard her impairment as moderate.”
Dr Berry also assessed Ms Valjanoski with 19% whole person impairment.
However, Dr Berry provided a supplementary report dated 7 March 2024 following review of clinical records of A/Prof Davies, notably without the opportunity to re-assess Ms Veljanoski. While Dr Berry confirmed the clinical records provided by A/Prof Davies did not cause him to alter his previously expressed opinion, in response to comment provided in correspondence from the South Coast Private’s solicitors, Dr Berry explained:
“The claimant’s concentration and focus throughout the assessment was largely normal. I awarded a class three for concentration, persistence and pace because she reported impairment in concentration across multiple domains (burning herself while cooking, issues with driving and being unable to read beyond short articles).
Decisions on PIRS are ultimately a clinical judgement based on the assessment and information provided. There is nothing in the clinical records of A/Prof Davies which cause me to consider changing my opinion. There are often variations between clinicians and variations in how a person presents during any given assessment.
However, I have gone back and reviewed my notes from my assessment of Ms Veljanoski on 22 November 2023. I note she had been searching for jobs on Seek and applied for a role (albeit that this caused anxiety and vomiting). I also note that she had found filling in paperwork related to her claim and medical treatment difficult and confronting. However, she had managed to do this.
Consequently, in light of my objective finding that her concentration was largely normal during the assessment and the fact she has been able to complete some intellectually demanding tasks I have reassessed my rating in this scale to a class two…
I have made no changes to rating to other scales.”
Dr Berry revised his assessment and assessed Ms Veljanoski with 9% whole person impairment.
Legal Considerations
Guidelines
Principles of permanent impairment assessments canvassed in the Guidelines relevantly include the ordering of additional investigations by a Medical Assessor.
Clause 1.37 provides:
“As a general principle, the assessor should not order additional radiographic or other investigations purely for the purpose of conducting an assessment of permanent impairment.”
Clause 1.38 provides:
“However, if the investigations previously undertaken are not as required by the Guidelines or are inadequate for a proper assessment to be made, the medical assessor should consider the value of proceedings with the evaluation of permanent impairment without adequate investigations.”
Clause 1.39 provides:
“In circumstances where the assessor considers that further investigations is essential for a comprehensive evaluation to be undertaken, and deferral of the evaluation would considerably inconvenience the claimant (e.g. when the claimant has travelled from a country region specifically for assessment), the assessor may proceed to order the appropriate investigations provided that there is no undue risk to the claimant. The approval of the referring body for the additional investigation will be required to ensure that the costs of the test are met promptly.”
Assessment of psychological impairment is undertaken in accordance with Chapter 11 of the Guidelines, which provides that AMA 5 Chapter 14 is excluded and replaced by this chapter.
Clause 11.4 provides:
“The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based.”
Clause 11.6 relevantly provides:
“It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but it is not the sole criterion to be sued. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time.”
Authorities
At this point it useful to note some authority we consider to be central to complaint made by South Coast Private.
We accept that in Ferguson v State of New South Wales[1] the court cited with approval NSW Police Force v Daniel Wark[2] where the court said:
“The pre-eminence of the clinical observations cannot be underrated. The judgment as to the significant 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.”
[1] [2017] NSWSC 140 (Ferguson).
[2] [2012] NSWCCMA 36.
We accept that in Nikolovski v McDonalds Australia Limited[3] the Appeal Panel appointed in that particular matter noted:
“A Medical Assessor takes various sources of information into account when rating concentration, persistence and pace. One important source is the interview itself, when the Medical Assessor can directly observe the worker’s capacity during the lengthy examination.”
[3] [2021] NSWPICMP 192.
However, we are mindful that the task of the Medical Assessor was described by the court in State of New South Wales v Kaur:[4]
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise…”
[4] [2016] NSWSC 346.
We are also mindful that justification of intervention by an Appeal Panel such as ours was also discussed by the court in Ferguson:[5]
“The Appeal Panel accepted that intervention was only justified: if the categorization was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[5] [2017] NSWSC 140 (Ferguson).
The matter of Ferguson was cited with approval by the court in Parker v Select Civil Pty Limited.[6]
[6] [2018] NSWSC 140.
In determining South Coast Private’s appeal, we are mindful too that in Campbelltown City Council v Vegan[7] 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.
[7] [2006] NSWCA 284.
Consideration
It is evident the task of the Medical Assessor was to assess Ms Veljanoski as she presented on the day of the examination and to apply his own clinical judgment in the application of the Guidelines. It is also evident the Medical Assessor was not bound to agree with findings of other assessors and nor he was required to choose between their assessments.
Despite identified error, the Appeal Panel considers the MAC to be thorough and well-reasoned.
The Appeal Panel does not accept South Coast Private’s submission the Medical Assessor should not have proceeded with assessment by telehealth in circumstances where mental state examination of Ms Veljanoski was “necessarily limited” by that particular mode of assessment. While it may be true as a generalised statement that medical assessment by telehealth is a “necessarily limited” mode of assessment, it is evident the Medical Assessor turned his mind as to whether to proceed with his assessment of Ms Veljanoski using this particular mode of assessment and chose to do so. The Medical Assessor’s reported findings on his mental state examination of Ms Veljanoski using this particular mode of assessment are comprehensive, with the Medical Assessor relevantly describing Ms Veljanoski as “fully alert and orientated” during assessment.
The Appeal Panel does not accept South Coast Private’s submission the Medical Assessor failed to order cognitive testing, particularly psychometric testing, in circumstances where he had raised concern that Ms Veljanoski’s attention and concentration, although adequate for the purpose of his interview with her “were undoubtedly affected by her level of emotional distress at the time.” The Appeal Panel considers there was no need for cognitive testing to be ordered as the Appeal Panel is of the view formal cognitive testing would not provide any new information about Ms Veljanoski’s attention and concentration, as the Medical Assessor identified clinically that these were impaired during his assessment. It is evident the Medical Assessor turned his mind as to whether he should order cognitive testing and chose not to do so, with reasoned explanation.
The Appeal Panel does not accept South Coast Private’s submission the Medical Assessor failed to provide adequate reasons for his assessment of the PIRS category of ‘concentration, persistence and pace’, in that the Appeal Panel is of the view the Medical Assessor clearly explained his path of reasoning relevant to his assessment of Class 3 for the PIRS category of ‘concentration, persistence, and pace’. The Medical Assessor identified clinically that Ms Veljanoski’s concentration was reduced due to her increased level of anxiety although “accurate quantification of this at assessment interview is not validly possible”. The Medical Assessor’s assessment of Class 3 for the PIRS category of ‘concentration, persistence and pace’ is evidently based on Ms Veljanoski’s self-report of her day-to-day impairment in this domain which was consistent with his clinical assessment. The Medical Assessor raised no concern regarding the reliability of Ms Veljanoski’s self-reporting.
While the Appeal Panel accepts the Medical Assessor failed to demonstrate he had regard to the assessment of Class 2 for the PIRS category of ‘concentration, persistence and pace’ detailed by Ms Veljanoski’s treating psychiatrist, A/Prof Davies, he did observe that A/Prof Davies contained a relevant rating of moderate difficulty in concentrating for more than 10 minutes and severe difficulties in learning a new task. Furthermore the Appeal Panel notes that A/Prof Davies provided no reasoning for his assessment of Class 2 for the PIRS category of ‘concentration, persistence and pace’ and the Medical Assessor is required to undertake his own assessment of the PIRS category of ‘concentration, persistence and pace’ having regard to Ms Veljanoski’s presentation on the day of assessment, which he did with extensive reasons
The Appeal Panel does not accept South Coast Private’s submission the Medical Assessor’s assessment for the PIRS category of ‘travel’ contains error. While Dr Khan, Dr Berry and A/Prof Davies (albeit the latter without reasoning) have provided assessments of Class 2 for the PIRS category of ‘travel’, the Medical Assessor is required to undertake his own assessment of the PIRS category of ‘travel’ having regard to Ms Veljanoski’s presentation on the day of assessment. While South Coast Private quibbles with the Medical Assessor’s reference to Ms Veljanoski’s unverified “minor accident three months ago” with comment Ms Veljanoski has become fearful of driving due to her poor concentration, and has in fact now stopped driving, the Appeal Panel notes it is evident from the clinical records of Mr Pisana that when last reviewed on 7 August 2023, which is just prior to Ms Veljanoski’s assessment with Dr Khan but after Ms Veljanoski’s assessment with Dr Berry, that Mr Pisana noted Ms Veljanoski attended review by telephone rather than by face to face review because she did not feel safe driving and “several times has had near misses and recently went through a red light which frightened her severely.” The Appeal Panel is of the view there is treating evidence demonstrating a deterioration over 2023 in Ms Veljanovski’s confidence and ability in driving that supports the Medical Assessor’s differing assessment of the PIRS category of ‘travel’ to that of Dr Khan, Dr Berry and A/Prof Davies. Although she may have stopped driving only after the accident in 2024, this would not have occurred had she not already been so impaired and unconfident as a result of her work injury.
While the Appeal Panel accepts the Medical Assessor provided a diagnosis of major depressive disorder with anxious distress comorbid with an alcohol use disorder without identifying diagnostic criteria with reference to DSM-5, the Appeal Panel is of the view the description of symptoms recorded by the Medical Assessor satisfy both the DSM-5 diagnostic criteria for major depressive disorder and the DSM-5 diagnostic criteria for alcohol use disorder.
CONCLUSION
The Appeal Panel is of the view that while the Medical Assessor was in error in failing to (a) demonstrate he had regard to the PIRS categories detailed in the clinical notes of Ms Veljanoski’s treating psychiatrist, A/Prof Davies, and (b) failed to identify the diagnostic criteria for his diagnosis of major depressive disorder with anxious distress comorbid with an alcohol disorder, the Appeal Panel does not consider either of these errors altered the Medical Assessor’s assessment of the PIRS categories of concentration, persistence and pace, and travel, being the PIRS categories with which South Coast Private quibble.
For the reasons discussed above, the Appeal Panel has determined that the MAC issued on 22 May should be confirmed.
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