State of New South Wales (TAFE NSW) v Sauro
[2023] NSWPICMP 60
•27 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (TAFE NSW) v Sauro [2023] NSWPICMP 60 |
| APPELLANT: | State of New South Wales (TAFE NSW) (incorrectly sued as Sydney Institute of Technology) |
| RESPONDENT: | Eraldo Sauro |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 27 February 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; assessment under psychiatric impairment rating scale; PIRS; alleged errors with respect to concentration, persistence and pace and employability; Jenkins v Ambulance Service, Ferguson v State of New South Wales and Parker v Select Civil considered; assessment of concentration, persistence and pace inconsistent with worker’s abilities; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 November 2022 the State of New South Wales (TAFE NSW) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 November 2022.
TAFE NSW 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 has been made out. The Appeal Panel has 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 Sauro was employed by TAFE NSW as a teacher of photography. He suffered a psychological injury on 13 February 2015 as a result of conflict with his then manager and other colleagues. He returned to work after the injury, working in other locations.
The Medical Assessor assessed 15% whole person impairment. TAFE NSW challenges the assessment in respect of two of the tables of the Psychiatric impairment rating scale (PIRS).
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 the worker to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
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 and in submissions prepared by its solicitor, Mr Tuxford, TAFE NSW submitted that the Medical Assessor erred in assessing Mr Sauro in Class 3 for Concentration, persistence and pace and in Class 3 for Employability. TAFE NSW submitted that those assessments were both demonstrable errors and the application of incorrect criteria because Mr Sauro remains certified by his general practitioner fit to perform his pre-injury hours being 20 hours per week. TAFE NSW noted the Medical Assessor’s history that Mr Sauro is working in other locations and said that there is no suggestion that his duties were different to the tasks he was performing before the injury. It said that assessment in Class 2 for Concentration, persistence and pace was more appropriate.
With respect to Employability, TAFE NSW conceded that Mr Sauro had not returned to his pre-injury location but said that he was able to work at other campuses, again noting that his general practitioner certified him fit for pre-injury hours. It said that assessment in Class 2 was more appropriate on the available evidence.
In reply, and in submissions prepared by Mr McManamey of counsel, Mr Sauro said that a disagreement with the opinion of a treating general practitioner is not a demonstrable error and that the Medical Assessor was entitled to rely on his own findings and clinical judgement. The Medical Assessor recorded a history consistent with Mr Sauro’s statement and made the same assessment as Dr Teoh, qualified for Mr Sauro. Mr Sauro said that in any event, the general practitioner certified him fit for suitable duties, not pre-injury duties without restriction.
With respect to Employability, Mr Sauro submitted that the Medical Assessor found that he was fit for a less stressful role and that his work performance is affected by poor concentration and memory and poor distress tolerance. He highlighted the opinion of Dr O’Neill who examined him for TAFE NSW who said that he copes because he undertakes one-on-one teaching and avoids the staffroom where his condition could be triggered, thus describing a person having difficulty performing limited hours of less arduous duties.
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 Campbelltown City Council v Vegan[1] 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.
[1] [2006] NSWCA 284.
Principles of assessment
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment, moderate impairment. What follows in each class are examples which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[2] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[2] [2015] NSWSC 633 at [65].
Campbell J considered the categorisation of impairment under the PIRS in Ferguson v State of New South Wales (Ferguson). His Honour said[3]:
“The Appeal Panel accepted that intervention was only justified: if the categorisation 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.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
[3] [2017] NSWSC 887At [24] – [25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said[4]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
Concentration, persistence and pace
[4] [2018] NSWSC 140 at [70]-[71].
The Medical Assessor described the tasks required of Mr Sauro at work:
“Normally his work involved delivering content to assessment. He taught students in the college, who were at Certificate and Diploma level of photography study. He also marked assignments. Some of the students may have disability and some are mature age students.
He reported that he is still doing teaching work, but he struggles to do some work he could do normally. He said he finds it hard to complete his responsibility, particularly with marking and recording the student attendances.
He confirmed that there was a student who engaged in self-harm and pulled a knife. He found it very distressing and took couple of weeks off work. He then went back to work on reduced hours. He said he gradually got better and he is no longer affected by that incident.”
The Medical Assessor said:
“He reported his concentration and memory is very poor, he seems to be ‘stuck in a loop’ mentally. He mixed up appointment times, he forgets his students’ names, he has trouble writing email and marking assignments, and he cannot focus while at work.”
He noted that Mr Sauro described being distracted and not concentrating. He said:
“He cooks and buys the groceries. He said he buys the same items, even though he already has it and did not need to buy more, as he memory is not good.”
And
“Normally, he enjoyed doing wood work and he was restoring a tall boy. He stopped doing this long time ago as he does not have the concentration or the patience for it. He has a dark room and still does some digital photography, but finds that he is not interested anymore and does not want to take photography with friends.”
The Medical Assessor diagnosed chronic major depressive disorder. He assessed Mr Sauro in Class 3 for Concentration, persistence and pace and said:
“Mr Sauro described having poor concentration. He makes mistakes with his work and struggles with intellectually demanding tasks. He no longer does woodwork as it is too cognitively demanding.”
Other relevant evidence
The most recent information in the file which pre-dates the MAC is Mr Sauro’s statement dated 19 April 2022, structured by reference to the PIRS Tables. He said that before the injury he was employed on a part time basis working 15 hours per week. His duties required him to teach photography to students, create unit content, assess and supervise students’ work, attend staff meetings and undertake general duties incidental to teaching. There is no evidence that he does not continue to perform those duties, though he does perform them with some difficulty.
With respect to Concentration, persistence and pace, Mr Sauro said that before the injury he was able to meet the demands of his job and enjoyed reading. He said:
“Since my injury, my concentration and short-term memory has deteriorated severely. I have poor concentration and find it difficult to focus on intellectually demanding tasks. I feel as though I can’t read anymore because I am persistently preoccupied with negative thoughts and I find it difficult to concentrate. I find it more challenging to complete daily tasks and usually lose focus as I become frustrated.”
Dr Teoh assessed Mr Sauro at the request of his solicitors in mid 2020. He assessed Mr Sauro in Class 3. His brief reasons are unenlightening and repetitive:
“He has poor concentration and persistent preoccupation with negative thoughts. He has poor concentration. He has been feeling hopeless and helpless.”
Mr Sauro saw Dr Kumar at the request of TAFE NSW at about the same time. Dr Kumar considered that he had not reached maximum medical improvement. He provided some additional history:
“He is now working 15 hours a week. He said he did increase the number of hours in another job. He worked with an NDIS group assisting a person with disability with his education in photography. Mr Nolan said this person was aggressive and at one stage had a knife pulled on him.”
On 31 March 2021 Mr O’Neill, psychologist, assessed Mr Sauro for the purpose of considering if ongoing psychological treatment was reasonably necessary. He prepared a detailed report and does not disclose that Mr Sauro maintained concentration throughout the assessment. He undertook some basic psychometric testing and said:
“Mr Sauro completed the Personality Assessment Inventory - Plus. This is a 344-item questionnaire that screens for signs of psychological distress, personality disorder, psychiatric disturbance, problems with drug and alcohol abuse, tendencies towards aggressiveness, suicidal ideation, the presence of social stressors, availability of social support, likely response to psychological intervention, and traits of dominance and warmth.
Mr Sauro's ratings on the reliability and validity scales fell within the normal range.”
None of the doctors who examined Mr Sauro said that he had difficulty maintaining concentration throughout the examination, though the Medical Assessor noted that
Mr Sauro’s narrative was disordered.
Consideration
An examination of the examples in the PIRS table shows that assessment in Class 3 understates Mr Sauro’s abilities in the areas relevant to the assessment of Concentration, persistence and pace. The examples in the PIRS for Class 2 are:
“Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks the periods of up to 30 minutes, then feels fatigued or develops headache.”
The examples for Class 3 are:
“Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The evidence shows that Mr Sauro can continue to teach a post-school course which is cognitively and creatively demanding, albeit with some difficulties. He is required to understand and convey the artistic and technical aspects of photography. His teaching is likely to require him to concentrate for more than 30 minutes. His work requires him to provide complex instructions, not merely to follow them, and given his duties have not changed substantially, to create content designed for students beyond school years. The Medical Assessor noted that Mr Sauro continues to assess students undertaking certificate and Diploma level courses, although “finds it hard”.
The evidence shows that Mr Sauro no longer undertakes some hobbies. While he no longer reads for pleasure, the evidence shows that, despite his perception of a subjective deterioration, his function for many years in a cognitively demanding role, albeit at reduced hours and possibly demands, shows his capacity is clearly greater than an ability to read nothing more than newspaper articles.
The assessment by the Medical Assessor understated Mr Sauro’s abilities and constitutes a demonstrable error. Comparing Mr Sauro’s ability to the examples in the relevant PIRS table shows that it is not a matter about which “reasonable minds may differ”. The appropriate assessment is in Class 2.
Employability
The Medical Assessor recorded that Mr Sauro typically worked 35 to 55 hours per week before his injury. That is at odds with the other information in the file, including Mr Sauro’s own statement in which he said that he was employed by TAFE NSW on a part time basis.
The Medical Assessor described Mr Sauro’s work:
“Mr Sauro told me that he currently has capacity to work 16 hours per week. This has not been upgraded. He said he was tested for a period at the National Disability Insurance Scheme where he worked up to 26 hours per week, but was soon after downgraded. He said that increasing his hours at work make him more hypervigilant. Prior to being offered his hours at Ultimo TAFE, he said he was doing 16 hours per week between Penrith TAFE and Campbelltown TAFE as a vocational education teacher. He is now maintaining the same hours, but doing up to 10 hours per week at Ultimo TAFE of recent. He said he copes better doing his one on one teaching and tends to avoid staffrooms where he could be retriggered by listening to or engaging in negative talk from peers. He said his psychologist has encouraged him to avoid these environments.”
The Medical Assessor gave the following reasons for assessing Mr Sauro in Class 3:
“Mr Sauro cannot work in same location.
He can work in a less stressful role and average around 20 hours per week.
He cannot perform all of his pre-injury duties.
His work performance is affected by his poor concentration and memory, and poor distress tolerance.”
As noted above, Mr Sauro said in his statement that he worked 15 hours per week before the injury:
“Prior to my injury, I kept up with the demands of my job and enjoyed my work. I was motivated to complete my employment duties to the best of my ability and took pride in my work.
Since my injury, I find it extremely difficult to keep up with my daily work duties. I find that I now have to try to take more breaks during class because I constantly feel on edge. I find my duties hard to manage. When I think of my treatment at work, I experience a wave of increased anxiety and stress. I am worried that if I increased my hours, I may not be able to cope with the workload and the pressure of it.”
In the passage cited in Mr Sauro’s submissions, Mr O’Neill said (in March 2021):
“Mr Sauro told me that he currently has capacity to work 16 hours per week. This has not been upgraded. He said he was tested for a period at the National Disability Insurance Scheme where he worked up to 26 hours per week, but was soon after downgraded. He said that increasing his hours at work make him more hypervigilant. Prior to being offered his hours at Ultimo TAFE, he said he was doing 16 hours per week between Penrith TAFE and Campbelltown TAFE as a vocational education teacher. He is now maintaining the same hours, but doing up to 10 hours per week at UltimoTAFE of recent. He said he copes better doing his one on one teaching and tends to avoid staffrooms where he could be retriggered by listening to or engaging in negative talk from peers. He said his psychologist has encouraged him to avoid these environments.”
The examples in the PIRS table for Class 2 are:
“Mild impairment: Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect to stories of the pre-injury job. Can work in the same position, but no more than 20 hours per week (e.g. no longer happy to work with specific persons, or to work in a specific location due to travel required).”
The examples for Class 3 are:
“Moderate impairment: cannot work at all in the same position. Can perform less than 20 hours per week in a different position, which requires less skill always qualitatively different (e.g. less stressful).”
The assessment in class 3 was open to the Medical Assessor based on the adjustments Mr Sauro has made to his work and his decision to avoid the staff room. While Class 2 may also have been appropriate, the assessment does not disclose an error, being an assessment on which reasonable minds may differ.
Assessment
When the assessment for Concentration, persistence and pace is adjusted, the median class score remains 3. The aggregate score becomes 14 and the percentage impairment is 13%.
For these reasons, we have determined that the MAC issued on 28 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2669/22 |
Applicant: | Eraldo Sauro |
Respondent: | State of New South Wales (TAFE NSW) |
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 Dr Michael Hong 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological injury | N/A | 13 | 0 | 13 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0
3
0