State of New South Wales (NSW Police Force) v Sochacki
[2024] NSWPICMP 300
•16 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (NSW Police Force) v Sochacki [2024] NSWPICMP 300 |
| APPELLANT: | State of New South Wales (NSW Police Force) |
| RESPONDENT: | Robert Sochacki |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 16 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; psychiatric impairment rating scale; appeal only re-categorisation of social and recreational activities, based on a statement in one report 10 months before Medical Assessment Certificate (MAC); Ballas v Department of Education and Minister for Immigration and Ethnic Affairs v Wu Shan Liang referred to; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 March 2024 State of New South Wales (NSW Police Force) (the Police Force) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Clayton Smith, who issued a Medical Assessment Certificate (MAC) on 14 February 2024.
The Police Force 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out – that the Medical Assessor had made a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds 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
Mr Sochacki ceased working as a police officer on 30 October 2022 as a result of suffering post-traumatic stress disorder. He claimed permanent impairment compensation, based on a report by Dr George who assessed 22% whole person impairment (WPI) in a report dated 9 June 2023.
The Police Force relied on a report by Dr Kumar dated 5 September 2023. Dr Kumar considered that Mr Sochacki’s condition had not reached maximum medical improvement.
The Medical Assessor assessed 19% WPI, assessing Mr Sochacki under the Psychiatric Impairment Rating Scale (PIRS) in class 2 for self care and personal hygiene, travel and social functioning and in class 3 for social and recreational activities, and concentration, persistence and pace. The Medical Assessor assessed Mr Sochacki in class 5 for employability.
The appeal concerns only the assessment for social and recreational activities.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr Sochacki to undergo a further medical examination because the assessment made by the Medical Assessor was open to him and does not disclose error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, the Police Force noted that social and recreational activities are those which involve interactions with other people. It said:
“The appellant employer submits, in the context of the claimant ceasing his consumption of alcohol, his recent history of non-attendance at the local bowling club was not directed to the claimant’s ability to interact with other people. It reflected the consequence of the respondent worker’s changes in alcohol consumption habits. It is not a behavioural manifestation of functional impairment to that domain.
Therefore, the appellant employer submits that the MA took into account irrelevant considerations in the context of assigning a class to the Social and Recreational activities scale.”
The Police Force referred to an Initial Assessment Report of WorkRehab, a rehabilitation provider, dated 6 April 2023 which recorded that Mr Sochacki “meets weekly down at the local pub with a group of close mates.” It said that the Medical Assessor did not refer to that history or say how it was inconsistent with his current “non-attendance.”
In reply, Mr Sochacki said that the Police Force made an assumption in asserting that his limitation of alcohol consumption was the reason for not attending the club was an assumption. He noted that the report of WorkRehab predated the examination by the Medical Assessor by nine months and that the Medical Assessor was required to report on his presentation on the day of the examination. He noted that the Medical Assessor identified other social interactions that he found difficult, which supported assessment in class 3 and said that the ground of appeal had not been made out.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
The MAC
The Medical Assessor was required by the Guidelines to assess Mr Sochacki on the day of the examination and to use his clinical judgement in reaching a diagnosis and assessing permanent impairment.[3]
[3] Guidelines paragraph 1.6.
The Medical Assessor set out a brief history of the injury, being the development of post-traumatic stress disorder as a result of cumulative exposure to trauma while employed as a police officer. He summarised Mr Sochacki’s treatment. He noted that Mr Sochacki was not working with a rehabilitation consultant because he had no capacity for work.
The Medical Assessor described Mr Sochacki’s present symptoms:
“He said he is better equipped to manage the symptoms of PTSD than he was 12 months ago, and his condition has plateaued. He said he copes with symptoms of post-traumatic stress disorder principally through avoidance. He told me, ‘I know the rules of the game, what’s going to trigger me, and I manage my symptoms’. He avoids social media and news. Loud or unexpected noises trigger him. He startles easily. He is intolerant of uncertainty. He avoids public transport. He avoids making decisions and has trouble making complex decisions.
…
He reacts to everyday stressors with denial and avoidance or by losing his temper. He hates to be challenged. He said he becomes irrational to the extent that it is frightening for his family. He has anticipatory anxiety around conflict. He said although he is volatile, there has been no physical violence. He prefers to withdraw but is scared of losing control.”
Describing Mr Sochacki’s general health, the Medical Assessor said:
“He said he was a regular binge drinker, up to 10 beers a day on a Friday. He said he had a pattern of binge drinking for years. He said he would zone out and watch the NRL. He has not had alcohol since September 2023. He denied illicit substance use, problem gambling or any forensic history. He is a non-smoker.”
Describing his social activities, the Medical Assessor said:
“…He no longer participates in activities with his children. He is not engaged in any recreational activities. For his daughter’s 18th birthday, they went to the Prince Hotel in Kirrawee, which he found stressful and anxiety provoking. He rarely eats at a restaurant. Last Christmas, he went to a family Christmas lunch a suburb away. He had to leave after 20 minutes.
He has no hobbies or interests. He cannot attend the local club. He is a member of the Heathcote Bowling Club, but last went months ago.
…
He is intolerant when driving and has road rage.
…
He has two friends: an ex-colleague with whom he speaks on the phone and who has come to his house twice in a year. His other friend is in a worse condition than him and left the police force two months before he did with PTSD. They talk on the phone. He speaks to his sister on the phone from the United States.”
The Medical Assessor summarised his examination findings and confirmed the diagnosis of post-traumatic stress disorder. He said:
“Mr Sochacki presented as a consistent historian. There was no apparent exaggeration, hyperbole or malingering. His presentation was consistent with the medical evidence provided by his treating clinicians, the mechanism of injury, and his mental state examination.”
Other evidence
The appeal is based solely on a statement in an initial assessment report by a rehabilitation provider, Ms Burns, from Work Rehab dated 6 April 2023. The purpose of the report was to “identify opportunities to assist Mr Robert Sochacki to improve wellbeing through increased psychosocial engagement and self-managed activities of daily living.” Mr Sochacki’s current status was considered by reference to physical injuries as well as post-traumatic stress disorder. Ms Burns met Mr Sochacki in a café and recorded:
“Mr Sochacki arrived to the assessment early and selected a seat in the café with his back to the window so that he could easily see the door, see outside, and see the entirety of the café’s interior… Mr Sochacki was observed on several occasions to become agitated with the noise level in the café and expressed at one stage wanting to ‘punch a woman in the throat’ who was with a small toddler in the café. This was a reaction to the crying child and demonstrated a high level of agitation despite Mr Sochacki’s claim that he ‘would never actually do that (punch someone in the throat).’”
Ms Burns said that Ms Sochacki’s leisure activities included meeting weekly “at the local pub with a group of close mates” and “drinking alcohol to the point of inebriation.”
In his statement dated 1 December 2022, Mr Sochacki said:
“Due to my injury, I have lost friendships which I valued because I am emotionally numb towards people and have little motivation to maintain these relationships. The limited relationships that I do maintain with friends have been affected and I struggle to socialise with them. This is more true the longer the process goes on. I just don't have the energy. I don't trust people I once did and frankly they might not want to hear about my limited world I now live in.”
Shortly before Ms Burns’ report was prepared, Mr Sochacki’s psychiatrist, Dr Malik, wrote a report for the Police Force dated 21 February 2023 that Mr Sochacki suffered post-traumatic stress disorder, major depressive disorder and:
“iii)-Alcohol Use Disorder - in partial remission (DSM V code 303.90/ICD 10 code Fl0.20).
As evidenced by repeated pattern of using alcohol in larger amounts than intended with a persistent desire to cut down and control alcohol use. A great deal of his time was spent in activities necessary to obtain alcohol and to recover from its effects. He has cravings for alcohol and the recurrent alcohol use has led to relationship strife. He continued alcohol use despite persistent interpersonal problems.”
Shortly after Ms Burns’ report was prepared, Mr Sochacki saw Dr George at the request of his solicitors. In his report dated 9 June 2023 Dr George said:
“He indicated that he has struggled with his mood over the last few years. He has become more socially isolated and more socially withdrawn. He said that he has got to a point where he does not care about the fact that he is not seeing friends or socializing to any degree. He does not want people to know that he is off work because he suffers PTSD.”
When assessing WPI under the PIRS, Dr George said:
“SOCIAL AND RECREATIONAL ACTIVITIES: Mr Sochacki has become socially isolated and socially withdrawn. He is not engaging in hobbies or interests. He is no motivated to engage in activities or with other people. Previously, he refused invitation or made excuses not to go out. He said people do not invite him now. Class 3.”
Dr Kumar saw Mr Sochacki at the request of the Police Force in September 2023. Dr Kuma wrote:
“Mr Sochacki reported that he does not socialise. He added that since December last year until now, he has only attended his daughter’s 18th birthday in April, which he said was a disaster.
He said that he started getting panic attacks and had a breakdown and had to leave which he said he found extremely embarrassing. He added that when he did go out on his daughter’s birthday, he was hypervigilant, he was anxious, and he believed that people were looking at him and he had to leave. He does not engage in any recreational activities.”
Consideration
In Ballas v Department of Education (State of NSW) (Ballas),[4] Bell P and Payne JA explained the operation of the Guidelines:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.
In the present case, it was plainly ‘arguable’, to use the language of Vannini[5], that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ … This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.”
[4] [2020] NSWCA 86 at [94-[95].
[5] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324.
Their Honours said:[6]
“Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.
…
The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities.”
[6] At [96] and [100].
The Medical Assessor considered Mr Sochacki’s conduct by reference to the correct scales.
Generally, the Police Force’s submissions do not take account of the Medical Assessor’s role as an administrative decision maker and the statement of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[7] is apposite:
“… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
[7] [1996] HCA 6, 185 CLR 259, 272.
There are a number of reasons why the Police Force’s submissions cannot be accepted.
First, our review of the evidence set out above shows that the history recorded by Ms Burns is at odds with the contemporaneous evidence in the file in which medical practitioners describe Mr Sochacki’s inability to attend social gatherings in early 2023. We observe that Ms Burns’ report is internally inconsistent - it is difficult to picture a person so stressed as Mr Sochacki was by the noise of a child in a café being able to go to the pub or club regularly.
Second, Ms Burns’ report was prepared more than 10 months before the examination by the Medical Assessor. Her observations at that time are not relevant to the Medical Assessor’s obligation to assess Mr Sochacki as he presented on the day of the examination, nor is the history she obtained more relevant than that the Medical Assessor took himself. The Medical Assessor noted that Mr Sochacki was better equipped to manage his symptoms than he was 12 months before and does so mainly through avoidance.
The reference in the Police Force’s submissions to going to the pub “after his condition had reportedly stabilised” seeks to apply chronological accuracy to events which are part of a continuum. There is no basis to interpret the Medical Assessor’s reference to 12 months as being exactly one year before his examination.
Third, the Police Force’s appeal depends on the assumption that Mr Sochacki stopped going to the club because he reduced his drinking. Merely because both of those things have happened, does not mean that one was a result of the other. Dr Mallik noted that Mr Sochacki wanted to stop drinking in February 2023 and alcohol use disorder was part of his diagnosis.
There is no evidence that Mr Sochacki currently has any recreational activities, and his social interaction is severely constrained. Assessment in class 3 for social and recreational activities was open to the Medical Assessor and appropriate on the history obtained.
For these reasons, we have determined that the MAC issued on 14 February 2024 should be confirmed.
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