Szalkay v State of New South Wales (Ambulance Service of New South Wales)
[2021] NSWPICMP 85
•3 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Szalkay v State of New South Wales (Ambulance Service of New South Wales) [2021] NSWPICMP 85 |
| APPELLANT: | Andrew Szalkay |
| RESPONDENT: | State of New South Wales (Ambulance Service of New South Wales) |
| APPEAL PANEL: | Member John Wynyard Dr Nicholas Glozier Dr Douglas Andrews |
| DATE OF DECISION: | 3 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 7% WPI for psychological/psychiatric injury; findings re PIRS categories of social and recreational activities and employability challenged; activities of tai chi and visiting a Buddhist Temple said to be solitary activities and not appropriate to the social and recreational activities category; Medical Assessor (MA) said to have failed to apply the provisions of the 1987 Act with regard to earning capacity; appeal against 1% allowance pursuant to Chapter 1.32 for effects of treatment as being too low; Held- activities within scope of social and recreational activity category; Ballas v Department of Education (State of NSW) applied; employability governed by different considerations to assessment of earning capacity under the 1987 Act; Jaffaire v Quality Castings Pty Ltd considered; appeal against quantum allowed by MA for effects of treatment rejected; no evidence of apparent substantial or total elimination of permanent impairment; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 February 2021 Andrew Szalkay, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 February 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 19 November 2020 a delegate made an amended referral to the MA for assessment of WPI caused by the psychological/psychiatric disorder that occurred on a deemed date of 25 December 2018.
Mr Szalkay lives alone and was born in 1971. As at the deemed date of injury he had worked in the Ambulance Service as a Paramedic for about 23 years. He was under psychiatric care prior to his ceasing work. Mr Szalkay was particularly affected after his mother’s death and had a psychiatric admission not long after to help manage his mental health and also for the purposes of alcohol detoxification. His mother died of cardiac and renal failure, and part of his job was often to manage cardiac arrests which reminded him of his mother’s death.
He continued under treatment with a psychiatrist, Dr Kin Chiam, and was slowly improving when in late 2017 a young female officer with whom he was working lodged a list of concerns regarding his behaviour over trivial matters such as leaving food on the dashboard of the ambulance truck. These concerns were never turned into any formal complaints.
He also related that one day he cited the fatigue policy to his employer when he went home. His use of that policy then became one of the concerns with his managers, and he felt intimidated from using that policy again.
Mr Szalkay was exposed to various trauma in the course of his employment and his dependency on alcohol consumption increased in times of stress.
The MA diagnosed Post Traumatic Stress Disorder (PTSD)with anxiety and depressive symptoms, and alcohol use disorder.
The MA found a 7% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested to be re-examined by an MA who was a member of the Appeal Panel, however no re-examination was called for as the Panel did not find any error in what was a comprehensive and thorough MAC.
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 which have been considered by the Appeal Panel.
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[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 (Vegan).
The issues raised by the appellant concerned the Psychiatric Impairment Rating Scale (PIRS).
Mr Szalkay submitted that the MA had fallen into error in his assessment of two of the six categories (or scales - the terms are interchangeable) of the behavioural consequences of the appellant’s psychiatric condition. These were the categories of social and recreational activities, and employability. Mr Szalkay also submitted that the MA had erred in only allowing 1% WPI for the effect of treatment.
The Psychiatric Impairment Rating Scale (PIRS)
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[2] provides:
“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.”
[2] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[3].
[3] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[4] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said:
“23. By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. 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.
25. 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[5]. 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’: Appeal Panel reasons at [37].”
[4] [2017] NSWSC 887 (Ferguson).
[5] [2015] NSWSC 633 (Jenkins).
In Glenn William Parker v Select Civil Pty Ltd,[6] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[6] [2018] NSWSC 140 (Parker).
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the MA in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the MA was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Ballas v Department of Education[7] the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (or scale), and failure to do so would result in appellable error.
The MAC
[7] [2020] NSWCA 86 at [94].
Social and recreational activities
The MA said[8]:
“He goes to the shops only every two weeks. He said he will put a hat on and ensure there is nobody about before he goes out, and tends to get anxious when he sees people behind him…
Mr Szalkay rings a few people and has less contact with his friends. He said he has not felt the same since his psychological injury. He does not go to parties he said because of the COVID restriction. He also said that he does not visit his brother partly because of the coronavirus. When he goes out, he always wears a mask, because of his diabetes he is more susceptible to infection.
Mr Szalkay went to the Buddhist temple and did a few courses there and has not attended since the COVID-19 pandemic lockdown started. He went to Tai Chi classes and Qigong at a woman’s house, and when it shifted online he stopped going. He also likes to make jewellery and attended lapidary classes and likes to fashion jewellery out of opals. Because the machines are all at the club and the club has been closed since coronavirus, he has not been attending. Mr Szalkay reported he wants to go again. He actively engaged in those activities and attended on his own, and did not need prompting.
Normally Mr Szalkay likes to play the guitar and piano. He continues to play the guitar occasionally.”
[8] Appeal papers page 34.
In considering the reports of other medico-legal experts, the MA said[9]:
“In terms of WPI rating, Dr Rastogi rated 3 for social and recreational activities and Dr Bisht rated 2. Dr Rastogi explained he does not get involved in social activities and does not like attending social events due to loss of interest. Dr Bisht explained Mr Szalkay only occasionally attends social gatherings, avoids talking to neighbours and that before coronavirus, he attended Tai Chi and a Buddhist temple and regularly attended the lapidary club. In my assessment, I took the history that Mr Szalkay was attending social and recreational activities regularly, with fewer friends since his work injury. He does not require prompting or a support person. He ceased the recreational activities due to the COVID-19 pandemic lockdown. He still wants to attend some of these activities but has had significant anxiety around the coronavirus particularly because he is a diabetic. Overall, I consider this is consistent with a rating of 2.”
[9] Appeal papers page 35.
In his Table 11.8 PIRS rating form, the MA allocated a class 2, saying[10]:
“He does not need a support person and attends various recreational activities, and is able to actively engage in those activities and is not quiet and withdrawn.
He went to lapidary club and Tai Chi regularly and enjoyed interaction with people there. He ceased due to COVID-19 restrictions. He wants to go again once he feels the risk of infection is reasonable.”
[10] Appeal papers page 40.
SUBMISSIONS
The appellant repeated some of the comments by the MA under “social activities/ADL” which we have reproduced above, selecting that part of the MA’s history that Mr Szalkay would go to a Buddhist Temple and do some courses, and that he did courses in Tai Chi and Qigong.
The appellant advised that he had found some information about Tai Chi and Qigong in various publications on the internet, medical journals and practitioner websites. These sources of information were not otherwise identified.
It was submitted that the primary purpose of those two activities were “far removed from socialising”. They were more closely related, it was submitted, to a “treatment maintenance program” to keep the appellant’s “PTSD at bay”. The appellant considered it “dubious” to refer to a Buddhist Temple as a “primarily social activity”. Moreover, we were advised that lapidary was the practice of shaping stones, minerals or gems stones and again was not a “primarily social activity”.
The appellant also referred to the finding by the MA that Mr Szalkay was reluctant to leave home unless there was nobody about and nobody behind him as being inconsistent with a class 2 value.
We were referred to Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas). In Ballas the Court of Appeal examined the limits of the discretion given to an MA under Chapter 11 of the Guides. As we have indicated above, the Court found that the conduct assessed must be consigned to the correct category (or scale).
In Ballas the court held that a person involved in a solitary activity such as gambling on poker machines could not be seen to be involving herself in social and recreational activities. The appellant sought to draw a parallel inference in the circumstances of Mr Szalkay’s case, which were said to involve “rare involvement” and “sporadic engagement” in “solitary activities” and a “preference for social isolation.”
DISCUSSION
The descriptors for this category are set out at Table 11.2 of the Guides:
“Class 1
No deficit, or minor deficit attributable to the normal variation in general relation: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively engaged with these.
Class 2
Mild Impairment: occasionally goes out to such events eg. Without needing a support person but does not become actively involved (eg. Dancing, cheering favourite team).
Class 3
Moderate Impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved. Remains quiet and withdrawn.”
We were not assisted by the reference by the appellant to “various articles” as the basis for his submission that the primary purpose of Tai Chi and Qigong was for treatment for persons suffering from PTSD. There was no evidentiary support for such a claim, and no suggestion that Mr Szalkay’s motive for attending these classes was solely for treatment, although Dr Malik, Mr Szalkay’s psychiatrist, recommended that Mr Szalkay’s attendance continue as Mr Szalkay found it “useful.”[11]
[11] Appeal papers page 117.
We are unable to infer from that entry that there was no element of social and recreational activity inherent in Mr Szalkay’s attendance at Tai Chi classes. We note that attendance for these lessons, and for Qigong, was at a woman’s house, and that when the lessons shifted online, Mr Szalkay ceased participation – an indication that it was a social activity that Mr Szalkay participated in.
The MA noted that Mr Szalkay’s recreational activities which also include going ‘to parties’ and to ‘visit his brother’ ceased ‘because of the coronavirus’ and the COVID 19 pandemic lockdown. He took a history that Mr Szalkay still wanted to attend the activities, and was actively engaged in them but had a lot of anxiety about the coronavirus. Behavioural consequences due to COVID 19 concerns are not relevant to the subject enquiry.
We do not agree with the description by the appellant that the act of going to a Tai Chi class or a Qigong class was inconsistent with Mr Szalkay’s social and recreational activities. We see nothing inconsistent with those descriptors in a person going to partake of physical exercise such as Tai Chi or Qigong, in company, as was described by Mr Szalkay.
Equally, a person who attends a Buddhist Temple is involving him/herself in social and recreational activities just as much as a person who attends a church service. The activities described were social activities which were age, sex and culturally appropriate to a person in Mr Szalkay’s position.
Employability
The MA allocated a class 4 value, saying[12]:
“Mr Szalkay wants to do some work. My estimation is that he can work, but he cannot work more than 1 or 2 days at a time, less than 20 hours per fortnight. His pace would be reduced and attendance would be erratic.”
[12] Appeal papers page p 41.
Submissions
The appellant kindly reproduced the definitions under Table 11.6 of the Guides regarding class 4 and class 5 classifications. Mr Szalkay submitted that the only possible class appropriate to his condition was a class 5 or, in the alternative, that the MA had failed to provide “any, let alone sufficient”, reasons for his class 4 assessment.
The appellant then submitted that the concept of incapacity was “well settled” for the purposes of the Workers Compensation Act. We read with interest the applicant’s supporting argument, which was concerned with the concept of incapacity, as defined under the Workers Compensation Act 1987 (the 1987 Act).
Discussion
Table 11.6 of the Guides provides the following descriptors for classes 4 and 5:
“Class 4 Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 Totally impaired: Cannot work at all.”
The submissions of the appellant must be rejected. They are misconceived, with respect, in that they have conflated the criteria by which this category is defined in the Guides with the provisions of the 1987 Act regarding claims for weekly benefits.
As pointed out above, Chapter 11.12 provides for the impairment in each category of the PIRS to be rated using “class descriptors”. Whilst the descriptors are provided as examples only for the guidance of the MA, they nonetheless delineate the broad scope of the category being considered.
The criteria for assessing employability within the broad scope of those examples is different to the criteria set out in the Workers Compensation Act, or even the passages set out from Mills by the appellant.[13]
[13] See generally the discussion by DP Roche in Jaffairie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 [266-269].
To extend the line of reasoning advanced by the appellant, an MA would also be required to apply the terms of s 32A of the 1987 Act as to the definition of suitable employment (amongst other concepts) which are inimical to the definition contained in the descriptors. Such a finding would be beyond jurisdiction, and this ground is accordingly rejected.
The appellant also submitted under this heading that the MA did not make reference to the report of his medico-legal expert, Dr Richa Rastogi, Consultant Psychiatrist, in which she ascribed a class 5 value for employability.
It is not necessary for an MA to comment on every opinion that is referred to him/her. An MA is required by the Guides to assess the degree of permanent impairment, by him/herself making a clinical assessment and by applying the diagnostic material within the Guides. Medical Assessors are not in a position of having to accept which of two conflicting bodies of evidence they should accept.[14]
[14] Jones v The Registrar WCC [2010] NSWSC 481 at [49] (Jones) per James J.
We have referred to Vegan above and the requirement for reasons to be given. These also apply to Medical Assessors[15]. The reasoning described by the MA discloses no error: there were no disputes of fact in his conclusion, and he explained the basis of his assessment clearly. The appellant has done no more than raise a mere difference of opinion about which reasonable minds might differ.
[15] Jones at [34].
Treatment effect
The AMS said:
“1% adjustment for treatment effects can be added, as Mr Szalkay reported substantial benefit from the provided treatment, and without treatment his impairment would be significantly greater.”
The appellant argued that proper interpretation of Chapter 1.32 was that “the more effective a specific treatment, the greater the allowance”.
Discussion
Chapter 1.32 of the Guides provides:
“1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
With respect, we do not accept the interpretation advanced by the appellant. The Guideline is quite specific, so that any additional WPI, be it 1%, 2% or 3%, is conditional upon there being “apparent substantial or total elimination of the claimant’s permanent impairment”, regardless of the relative purported efficacy of a specific treatment. The MA used the term “substantial benefit,” which we find to be a different concept to that of “substantial elimination.” There is a logical inconsistency in the appellant submitting that Mr Szalkay is more seriously impaired than has been found by the MA, but at the same time arguing that the adjustment for the effects of treatment should be increased because there was an apparent substantial or total elimination of that same impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 February 2021 should be confirmed.
7
0