Thompson v Campbelltown Catholic Club
[2021] NSWPICMP 73
•19 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Thompson v Campbelltown Catholic Club [2021] NSWPICMP 73 |
| APPELLANT: | Hayley Thompson |
| RESPONDENT: | Campbelltown Catholic Club |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Brian Noll Dr Patrick Morris |
| DATE OF DECISION: | 19 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Two applications for appeal against separate Medical Assessment Certificates (MAC), relating to the same set of proceedings; Panel declined to receive fresh evidence on the basis it was not evidence of such probative value that it was reasonably clear it would change the outcome of the case; Held- in the first appeal the Panel confirmed the assessment by the AMS and agreed that gait derangement was not an appropriate method of assessing the lower extremities; in the second appeal relating to a psychiatric injury, the Panel satisfied that the AMS excluded the effects of physical impairment in his assessment; the Panel found no error and no incorrect application of the relevant assessment criteria in assessment of self-care and hygiene and social and recreational activities; MACs confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
This matter concerns two applications for appeal against separate Medical Assessment Certificates (MAC), relating to the same set of proceedings (6199/20). The two appeals, namely M1-6199/20 and M2-6199/20, were listed to be heard concurrently.
For convenience, the Appeal Panel will refer to the parties by their role in the substantive dispute as applicant and respondent.
On 26 October 2020 the applicant, Hayley Thompson (the applicant), filed an Application to Resolve a Dispute claiming weekly benefits and lump sum compensation where liability and the degree of permanent impairment were in dispute. The applicant claimed that she sustained injury to her lower extremities and left upper extremity on 10 June 2018, and further injury to the right lower extremity together with a psychological injury on 29 December 2018. The respondent was Campbelltown Catholic Club (the respondent).
On 24 November 2020, the Workers Compensation Commission issued a Certificate of Determination – Consent Orders (COD). Amongst other things, the matter was referred to an Approved Medical Specialist (now known as Medical Assessor) to assess the applicant’s permanent impairment arising from:
“Date of injury: 10 June 2018
Body systems referred: Left lower extremity (ankle); right lower extremity
(ankle); left upper extremity (wrist)
Method of assessment: Whole person impairment
Date of injury: 29 December 2018
Body systems referred: Right lower extremity (ankle)
Method of assessment: Whole person impairment”
The COD also referred the matter to a Medical Assessor to assess whether the applicant had reached maximum medical improvement in respect of a psychological injury dated 29 December 2018, and, if so, the applicant’s whole person impairment (WPI) of that injury.
On 5 January 2021, Dr Greggory Burrow, a Medical Assessor (Dr Burrow), issued a MAC (the first MAC) in respect of the applicant’s physical injuries (set out above at [3]). Dr Burrow assessed the applicant’s impairment arising from the injury dated 10 June 2018 at 1%, comprising of 0% in respect of the left lower extremity (ankle), 0% in respect of the right lower extremity (ankle), and 1% in respect of the left upper extremity (wrist). Dr Burrow also assessed the applicant’s impairment arising from the injury, dated 29 December 2018, to the right lower extremity (ankle) at 3%.
On 2 February 2021, the applicant lodged an Application to Appeal Against the Decision of a Medical Assessor in respect of the assessment by Dr Burrow.
The applicant relied on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The respondent did not respond to the first appeal application.
On 8 February 2021, Dr Michael Hong, a Medical Assessor (Dr Hong), issued a MAC (the second MAC) in respect of the applicant’s psychological injury on 29 December 2018.
Dr Hong assessed that the degree of the applicant’s permanent impairment was fully ascertainable and proceeded to assess WPI. Dr Hong assessed the applicant to have 17% WPI in respect of the psychological injury.On 8 March 2021, the respondent lodged an Application to Appeal Against the Decision of a Medical Assessor in respect of the assessment by Dr Hong.
The respondent relied on the following grounds of appeal under s 327(3) of the 1998 Act:
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in each of the appeal applications. The appeals were referred to a Medical Appeal Panel for determination (concurrently).
The Appeal Panel has conducted a review of the original medical assessments 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 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Statement of the applicant dated 2 February 2021
The appellant submits that the evidence is relevant to a fact in issue. The appellant submits that the evidence was not available and could not reasonably have been obtained prior to the AMS assessment as the statement responds to an incorrect history taken by the Dr Burrow which could not have been foreseen by the applicant.
The respondent made no submissions in relation to the admission of the applicant’s statement dated 2 February 2021.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156. Hoeben J held that a statutory declaration addressing the way in which an AMS carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).”
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
The appellant submitted that the statement of the applicant was relevant to a fact in issue. The Appeal Panel has assumed that the fact in issue was the use of a walking stick by the applicant since September 2020 and also the history obtained by Dr Burrow that she did not use a stick or crutch.
The Appeal Panel considered that the use of a walking stick since September 2020 was evidence that was available before the examination by Dr Burrow. Indeed, it was odd that the use of a walking stick was not referred to by the applicant in her statement dated 15 October 2020. In the statement dated 15 October 2020 the applicant referred to using crutches after her injury until 1 December 2018 and also set out in some detail the disabilities that she continued to suffer from as a result of the work injuries. However, the Appeal Panel accepted that evidence relating to the history provided to Dr Burrow by the applicant was not available before the examination by Dr Burrow and could not have been reasonably obtained as it related to events that took place during the examination by Dr Burrow.
Although the statement of the applicant in part came within the literal definition of “fresh evidence” as referred to in s 328(3), the Appeal Panel decided to disregard that evidence since it was quite contrary to the purpose of the Act. The Appeal Panel does not understand the intention of the legislature to be that such criticisms of a Medical Assessors ought to be admitted as fresh evidence. The Appeal Panel believes that the purpose of the legislation is to give some prima facie credence to the opinion of a Medical Assessor in situations where he has examined the client and all the competing medical views. The system would not be able to operate properly if the Medical Assessor’s view could be overturned merely because of some untested documentary evidence as to the events that occurred during the examination. Further it should also be noted that the applicant’s evidence concerning the history of the use of a walking stick would have little, if any, probative value. The Appeal Panel decided that the statement of the applicant was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) the statement of the applicant dated 2 February 2021.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessors for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificates given by the Medical Assessors 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.
The applicant’s submissions in M1-6199/20 identified the ground for review as failure to apply gait derangement as the criteria for lower extremity impairment, include the following:
(a) Dr Burrow used impaired range of motion as his method of calculating lower extremity impairment.
(b) On page 7 of the MAC, Dr Burrow recorded the following:
"On the right, there is potential impairment related to gait derangement but SIRA instructs this modality must be used as a last resort. The appropriate impairment modality then is motion loss of the ankle subtalar joint.”
(c) The applicant conceded that under the Guidelines at clause 3.10 the method of gait derangement was only to be used as a method of last resort where there was no alternative assessment "most fitting the nature of the disorder". However, the applicant submitted that the method of assessment used by Dr Burrow did not adequately encompass the applicant's impairment and was not the method "most fitting the nature of the disorder."
(d) On page 3 of the MAC, Dr Burrow recorded that:
"Ms Thompson says that the right ankle is painful, gives way and swells. There are similar symptoms in the left ankle. She says she is limited to walking on the flat 500 metres, cannot run or hike, has difficulty squatting, kneeling and bending and can only manage one flight of stairs but does not use a stick or a crutch."
(e) Dr Burrow further noted at page 4 of the MAC that:
"She walked with a right leg limp and had a splint over her left wrist, as well as bilateral supportive ankle splits including more collateral support for the right ankle as well as inner soles."
(f) Dr Burrow did not doubt the veracity of the applicant's symptoms recording under Consistency of Presentation that:
"I do not believe that there is significant evidence of abnormal illness behaviour per se” and that “There may be a chronic pain syndrome."
(g) Having regard to the history accepted by Dr Burrow, the method of gait derangement ought to have been used to calculate the applicant’s level of WPI which would have given rise to a level of impairment under Table 7.5 in the AMA 5.
(h) Alternatively, more extensive reasons for not employing the method of gait derangement should have been provided.
The respondent made no submissions in M1-6199/20.
The respondent’s submissions in M2-6199/20, include the following:
(a) The AMS, Dr Hong, in applying the criteria mandated by the Guidelines, erred in his evaluation by ascribing incorrect classes to at least two of the six Psychiatric impairment rating scales (PIRS).
(b) Using the PIRS Dr Hong assessed the following: Self Care & Personal Hygiene Class 3, Social & Recreational Activities Class 3, Travel Class 2, Social Functioning Class 2, Concentration, Persistence and Pace Class 2 and Employability Class 4.
(c) The Categories in which Dr Hong erred include 'Social & Recreational Activities' along with 'Self Care & Personal Hygiene'.
(d) In connection with Social & Recreational Activities, Dr Hong ascribed a Class 3 impairment. According to Dr Hong in the PIRS Rating From, the applicant "did not attend social and recreational activities or take holidays. Her anxieties prevented her from engaging in her usual social and recreational activities'.
(e) Dr Hong recorded a history that the applicant becomes scared when she goes out and did not want to do anything. Despite this, her psychologist instructed her to go out at least three or four times a week, even to just get takeaway coffee and come home. Despite Dr Hong stating in absolute terms that the applicant did not attend social and recreational activities, he recorded within the history that she had visits from her family almost every day, she went dress shopping, there were a couple of friends who still visit her and she "occasionally" will go out in public and drink coffee with them. It was also confirmed that the applicant had been back at the pool and swimming, but tended to go when it is quiet and only about four to five people at the pool. On the weekend, when there were more people, her brother attended with her. Such history was inconsistent with a person who "did not attend social and recreational activities" or someone who was prevented from engaging in usual activities.
(f) The respondent referred to the decision in the matter of Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas).
(g) Dr Graham Vickery (who did not provide an assessment of permanent impairment as he believed the applicant had not reached MMI) in his report dated 1 September 2020, noted that the applicant was avoiding socialising in 2019 when "I couldn't leave the house but now I can go out with a friend or I meet a friend at a coffee shop when it is not so busy and with the use of mindfulness and relaxation strategies”.
(h) The respondent accepted that the PIRS tables do not propose a 'recipe approach' to an assessment and that Chapter 11.12 of the Guides describes the activities in the table as being examples. Whilst it was accepted that the applicant demonstrated some level of deficit, she was capable of independently interacting with her friends without a support person.
(i) Overall the history detailed by Dr Hong was fundamentally inconsistent with his rating under the PIRS Table. He communicated in absolute terms that that applicant did not attend social activities, however, the hobbies and interaction with others described within the MAC refuted a Class 3 rating. In light of the above evidence and consistent with Ballas, the respondent contends the functional impairment fits within Class 2 and Dr Hong erred in his assessment Social & Recreational Activities.
(j) In connection with Self Care & Personal Hygiene, Dr Hong ascribed a Class 3 impairment.
(k) Dr Hong in the PIRS Rating From stated that the applicant "family prompts her at times and without prompting. she does not shower or eat and cannot maintain adequate self-care. I have explained my finding in detail in other parts of my assessment. Is incapable of independent living without regular support. She has almost daily external assistance".
(l) The history contained within the MAC confirmed that the applicant lived on her own without dependants or a partner. Originally her parents were living with her, but moved to Forster 10 months prior. The applicant reported having a poor diet and "often ordered take-away food and sometimes she would skep [sic] meals and not eat for the whole day, or just have one meal in a day". Dr Hong confirmed that the applicant's sister who lived down the road came "almost every day to help, and a brother comes a few times a week to help her''.
(m) The current matter involves not only a psychological injury, but a concurrent physical claim related to the applicant's lower extremities and left wrist. At page 2 of the ARD, in her statement, the applicant listed the numerous disabilities, directly resulting from the physical claim, including the "interference with domestic and household activities", "interference with personal hygiene" and "interference with feeding myself”.
(n) Dr Vickery in his report dated 1 September 2020 acknowledged that there was limitation in her physical activities. The applicant described having to "stop and rest" due to pain in her left wrist and her right ankle and "I worry about overdoing it as then I won't be able to do things the next day”.
(o) Dr Richa Rastogi, in a report dated 8 May 20208, confirmed that the applicant was living with her parents till March 2020 and now relied on her brother and sister for domestic chores. It was specifically correlated that the applicant struggled with domestic chores and bending and squatting. She felt exhausted and fatigued mentally and physically. Dr Rastogi went on to state that the applicant would have a shower every few days and her self-care had diminished.
(p) Dr Rastogi in her assessment noted a Class 2 - Mild impairment as the applicant was ''skipping meals and showers and presented with limited self-care, does not put make up and needs prompting".
(q) Despite the fact that Dr Hong noted the applicant required almost daily external assistance, he did not address the fact that Self Care & Personal Hygiene was significantly impacted by physical complaints/disabilities requiring assistance.
Dr Hong failed to distinguish between the care required as a result of the psychological injury or physical injury. In effect, the respondent was left to speculate. Dr Hong did not take into consideration the applicant's physical limitations and the impact on Self Care & Personal Hygiene. Dr Hong did not provide proper reasoning as to how he arrived at a Class 3 assessment, in light of the concurrent physical injury. As such, it is submitted that Dr Hong has fallen into error. Based on the evidence (and consistent with Dr Rastogi), the respondent contends the applicant is more appropriately ascribed in Class 2 for Self Care & Personal Hygiene.(r) In consideration of the above, the applicant should be assessed as having a Median Class 2 with a range of impairment between 4-10% WPI. In applying the PIRS the applicant would more appropriately be ascribed the following: Self Care & Personal Hygiene Class 2, Social & Recreational Activities Class 2, Travel Class 2, Social Functioning Class 2, Concentration, Persistence and Pace Class 2 and Employability Class 4.
(s) Based on a score of 2 + 2 + 2 + 2 + 2 + 4 equalling a median Class 2 with an aggregate score of 14, demonstrating a total WPI of 7% WPI. Alternatively, if it is determined that Dr Hong fell into error for either Social & Recreational Activities or Self Care & Personal Hygiene the calculation would be: 2 + 2 + 2 + 2 + 3 + 4 equalling a median Class 2 with an aggregate score of 15, demonstrating a total WPI of 8% WPI.
(t) In the circumstances the MAC of Dr Hong should be revoked and a MAC for 7% WPI or 8% WPI be substituted.
The applicant’s submissions in M2-6199/20, include the following:
(a) In respect of Social and Recreational Activities the respondent asserted that
Dr Hong erred because he records in the PIRS scale: "Did not attend social and recreational activities or take holidays. Her anxiety has prevented her from engaging in her usual social and recreational activities". The respondent asserted that the use of the term "Did not attend" by Dr Hong was put in absolute terms which was inconsistent with the history taken which discloses participation in social and recreational activities.(b) This statement by Dr Hong was qualified by the use of the word "usual". More importantly, reading the MAC as a whole, it was clear that Dr Hong did not assign Class 3 impairment based on a history that the applicant does not participate in social or recreational activity whatsoever. Rather, the AMS took a detailed history of the applicant's engagement in Social and Recreational Activities which was entirely consistent with a Class 3 rating.
(c) Dr Hong’s reasons need to be read as a whole and not with an eye "finely tuned for error". McGinn v Ashfield Council [2012] NSWCA 238 (Ashfield) per McColl JA at [17]. Reading the MAC as a whole, no error was disclosed with respect to Class 3.
(d) In relation to the history taken by Dr Hong, the respondent identified a number of elements of the history taken by Dr Hong which were said to be inconsistent with a Class 3 rating. In respect of:
(i)"She had visits from her family almost every day". The applicant submitted having daily visits from family was in no way inconsistent with a Class 3 rating in social and recreational activities. Indeed, the PIRS scale in this category contemplates ongoing interaction with family. Ballas is authority for the proposition that there should be not be a co-mingling of the categories in the PIRS scale.
(ii)"She went dress shopping" (page 4 of the MAC). The applicant went dress shopping with a support person (her sister) and during this isolated example became overwhelmed with anxiety. This is consistent with a Class 3 rating.
(iii)There were a couple of friends who still visit her and she will "occasionally" go out in public and drink coffee with them. On page 4 of the MAC Dr Hong wrote: "She said a lot of good friends disappeared over time and she has no contact with them. There are a couple of friends who still visit her. She said that occasionally, she will go out in public to drink coffee, but generally she feels too edgy to be out". This was entirely consistent with a Class 3 rating as it describes someone who rarely goes out and only goes out with a support person.
(iv)Dr Hong noted that the applicant had been back at the pool and swimming, but tended to go when it was quiet and only about 4 to 5 people at the pool. On the weekend, when there were more people, her brother attended with her, otherwise her anxiety becomes overwhelming. This was consistent with a Class 3 rating. It was clear that swimming is a solitary activity for the applicant and consistent with her severe anxiety, she required a support person to attend with her if she went on the weekend.
(e) While the respondent submitted that the applicant had some level of deficit, she was capable of independently interacting with her friends without a support person, this submission was not to the point. The history detailed above was consistent with the applicant losing all but a select group of friends, with whom she would occasionally visit in public in limited circumstances. Clearly, she was not "independently” interacting with her friends without a support person. Rather, these close friends are more accurately described as support persons. There was no basis to second guess the clinical judgment of the AMS in this respect.
(f) That friends and family can be considered "support persons" was clearly contemplated by the Class 3 descriptor which says "Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person".
(g) The assessment of Dr Hong and the history taken were consistent with a Class 3 rating in the area of social and recreational activities. The PIRS scale is not a recipe approach to an assessment. However, even taking a literal approach to the PIRS scale the applicant can be comfortably categorised within Class 3 for the abovementioned reasons.
(h) In respect of Self Care and Personal Hygiene the respondent submitted that
Dr Hong erred in assigning Class 3 because he has not engaged with the extent to which the applicant's physical injuries affect her capacity for self-care.(i) Dr Hong has dealt with the applicant's primary psychological impairment appropriately. It was clear that Dr Hong assigned Class 3 impairment in Self Care and personal hygiene having regard to the applicant's lack of motivation to perform her self-care tasks.
(j) There was no gap that in the reasoning of Dr Hong, who specifically indicated that the applicant requires "prompting" to participate in self-care, and has relied on this finding in his assessment that she required regular support. It was apparent here that Dr Hong was referring to the applicant's difficulties with motivation arising from her psychological injury.
(k) Dr Hong made it clear that he had excluded the effects of the physical impairment in his assessment. There was no basis for the submission that he has not taken the effects of physical impairment into account and the path of reasoning was clear.
(l) There was no reason to prefer the report of Dr Rastogi over Dr Hong and it is noted that Dr Hong made note of Dr Rastogi's report and explained why he has arrived at a different conclusion with respect to self-care on page 7 of the MAC.
(m) The respondent is seeking to cavil with the findings with the AMS, Dr Hong.
(n) The Appeal should be dismissed and the findings of Dr Hong confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In respect of the First Appeal Application, the Delegate determined that there is an arguable case of error under s 327(3)(d) of the 1998 Act in relation to Dr Burrow’s assessment of permanent impairment to the lower extremity. In respect of the Second Appeal Application, the Delegate determined that there is an arguable case of error under s 327(3)(d) of the 1998 Act in relation to Dr Hong’s assessment of permanent impairment of the psychological injury.
Appeal in M1-6199/20
Under “Present symptoms” Dr Burrow noted:
“Ankles: Ms Thompson says that the right ankle is painful, gives way and swells. There are similar symptoms in the left ankle. She says she is limited to walking on the flat 500m, cannot run or hike, has difficulty squatting, kneeling and bending and can only manage one flight of stairs but does not use a stick or a crutch.”
Under “Findings on Physical Examination” Dr Burrow noted:
“She walked with a right leg limp and had a splint over her left wrist, as well as bilateral supportive ankle splints including more collateral support for the right ankle as well as insoles.
…
Examination of the lower extremities showed correctable pes planus. There was normal lower extremity alignment otherwise. There was no focal ankle tenderness but there was global discomfort medially, laterally and anteriorly.
Right Ankle range of motion included:
MOVEMENT RIGHT LEFT
Extension 10° 15°
Plantar flexion 25° 25°
Inversion 25° 25°
Eversion 15° 15°”Under “Details and Dates of Special Investigations”, Dr Burrow noted that the right ankle scan on 20 July 2018 was reported by Dr Cheema as showing a normal study with no soft tissue, bone or cartilage damage. X-rays of both ankles on 19 June 2019 were reported by Dr Kobilski as being normal. Both ankle ultrasounds were reported as being normal, there being no joint effusion.
Under “Summary” Dr Burrow wrote:
“Ms Thompson was involved in a series of work incidents where she fell. The initial incident involved symptoms related to her left wrist, and both ankles.
Subsequent imaging showed no oedema, bone bruising nor frank ligamentous injury.
Ankles
She has been investigated by Dr Viswanathan who acknowledged there was no pathology on MR scan but suggested a diagnosis of bilateral ankle instability based on ‘sprains’, shared her case with colleagues to discuss the possibility of bilateral calcaneal osteotomies and has decided to continue non-operative treatment as the review group suggested that surgery was not indicated according to Ms Thompson.
No surgery is planned for the short or medium term. She has continued symptoms and disabilities.”Under “Consistency of Presentation” Dr Burrow wrote:
“Whilst Ms Thompson’s complaints of severe pain are greater than what we would expect from the type of injury, particularly as there has been no structural injury identified by MR scan or objective evidence of instability of the left wrist or either ankle, and I acknowledge there are significant other mental health issues, possibly related to workplace bullying and harassment, however there is no evidence of CRPS, there may be a chronic pain syndrome; I do not believe that there is significant evidence of abnormal illness behaviour per se.
This is also echoed in the opinion by Dr Powell where he concludes ‘No structural injuries were identified but she continued to have pain difficulties’”.Dr Burrow assessed 0% WPI of the right lower extremity (ankle). He wrote:
“Lower Extremity assessment
SIRA Table 3.5: There is no potential impairment related to limb length discrepancy, muscle atrophy, weakness, ankylosis, arthritis, amputation, skin loss, peripheral nerve deficit, CRPS or vascular disorders.
On the right, there is potential impairment related to gait derangement but SIRA instructs this modality must be used as a last resort.
The appropriate impairment modality assessment then is motion loss of the ankle – subtalar joint.
Right lower extremity (ankle): Motion impairment: Ankle subtalar joint: Revised AMA-5
Table 11: There is mild loss of ankle dorsiflexion: 7% lower extremity impairment. There is no impairment for plantar flexion, inversion or eversion.
3% WPI
Left lower extremity (ankle):
With regard to the left lower extremity, the appropriate assessment tool is motion impairment of the ankle subtalar joint.
There is no motion impairment of the ankle or subtalar joint.
I note there is potential impairment for DBE associated with ankle ‘ligamentous instability’. However there is no scan evidence of ankle ligament deficiency, no ligamentous instability on physical exam of either ankle and it follows that stress films are not appropriate or required. There is no impairment related to ‘instabilty’ as there is no examination evidence of instability of either ankle.”The applicant submitted that Dr Burrow erred or made the assessment on the basis of incorrect criteria in using impaired range of motion as his method of calculating lower extremity impairment and not gait derangement. In the alternative, Dr Burrow should have provided more extensive reasons for not employing gait derangement as the method of assessment.
The Appeal Panel reviewed the history recorded by Dr Burrow, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above. The Appeal Panel accepts the findings on examination that Dr Burrow made in the MAC.
The Guidelines at Paragraph 3.3 provide that the “most specific method of impairment assessment should be used.”
The Guidelines at Paragraph 3.10 provide:
“Assessment of gait derangement is only to be used as a method of last resort. Methods of impairment assessment most fitting the nature of the disorder should always be used in preference. If gait derangement (AMA5 Section 17.2c, p 529) is used, it cannot be combined with any other evaluation in the lower extremity section of AMA5.”
The Guidelines at Paragraph 3.11 provide: “Any walking aid used by the subject must be a permanent requirement and not temporary.”
Section 17.2c of AMA 5 at page 529, under “Gail Derangement” provides:
“Gait derangement is present with many different types of lower extremity impairments and is always secondary to another condition. An impairment rating due to a gait derangement should be supported by pathologic findings, such as x-rays
….
Section 17.2c does not apply to abnormalities based only on subjective factors such as pain or sudden giving way, as with, for example, an individual with low-back discomfort who chooses to use a cane to assist in walking.”The Appeal Panel noted that Dr Burrow concluded that no structural injury in the ankles had been identified by investigation and there was no objective evidence of instability in either ankle. The Appeal Panel agreed with Dr Burrow’s conclusions. Dr Burrow then made an assessment of impairment based on range of motion.
The applicant was fitted with orthotics and ankle supports but there was no radiological evidence to indicate the presence of any foot or ankle abnormality for which supports would be required on a permanent basis.
The Appeal Panel noted that Dr Bodel did not make an assessment based on gait derangement.
The Appeal Panel were of the view that there was no error or application of incorrect criteria in Dr Burrow’s assessment. The Appeal Panel agreed with Dr Burrow that assessment of gait derangement was a method of last resort. Further, AMA 5 at Section 17.2c provides that impairment due to gait derangement should be supported by pathologic findings and therefore the absence of any clinically apparent abnormality and the absence of any evidence of pathological abnormality (based on the radiological reports of the x-rays and ultrasound examination of both ankles and the MRI scan of the right ankle) would preclude an assessment of impairment based on gait derangement.
The applicant submitted in the alternative, that Dr Burrow should have provided more extensive reasons for not employing gait derangement as the method of assessment. The Appeal Panel considered that Dr Burrow provided adequate reasons. It is not necessary that the AMS refer to every document submitted or explain in detail the criteria applied to reach his professional judgment (Campbelltown City Council v Vegan [2006] NSWCA 284).
Dr Burrow clearly considered the various methods of assessment of impairment of the ankles and concluded that the appropriate impairment modality assessment then was motion loss of the ankle – subtalar joint. The Appeal Panel considered that this method of impairment assessment was appropriate given the clinical findings and investigations. The Appeal Panel concluded that there was no demonstrable error in the MAC of Dr Burrow and that there has been no incorrect application of relevant assessment criteria.
Appeal in M2-6199/20
Under “Present symptoms” the AMS, Dr Hong, noted:
“Since the described workplace bullying, Ms Thompson reported that her anxiety has been the predominant problem and that she becomes scared of everything, and she cannot trust her own judgement. When she goes out she becomes scared, and she often feels she wants to “curl up under a rock”, and she does not want to do anything. Her psychologist instructs her to go out at least three or four times a week, even just to get a takeaway coffee and come home, and she tries to comply.
On specific enquiry, Ms Thompson reported experiencing the following symptoms:§Depressed variable mood with reduced enjoyment and motivation.
§Being easily fatigued.
§Ongoing passive suicidal thought.
§Appetite and weight problem since the subject injury.
§Disrupted sleep and middle insomnia – she worries and is unable to switch off her mind at night.
§Feeling tense and difficult to relax.
§Having a low tolerance for frustration.
§Being quiet and socially withdrawn.”
Under “Social activities/ADL” Dr Hong wrote:
“Ms Thompson lives on her own and has no dependants. She does not have a partner.
Ms Thompson reported having a poor diet and often orders takeaway food, and sometimes she would skip meals and not eat for the whole day, or have just one meal in a day.
Ms Thompson said the only exercise she can do now is swimming which is not
weightbearing, but during COVID-19 and the pool was closed, she gained about 20 kg due to a combination of lack of activity and poor diet.
Ms Thompson's parents were living with her, and they moved to Foster almost 10 months ago. Since then, her sister, who lives down the road, comes almost every day to help her, and a brother comes a few times a week to help her. She has poor motivation to attend to her self-care or to eat regularly, and generally she orders takeaways when there is no-one to prepare food for her. Ms Thompson said she rarely cooks now, as a result of a lack of motivation.
Ms Thompson’s family made comments about her lack of self-care and not showering, and they often prepare meals for her. Even though her parents had moved away, the siblings come almost every day.
Ms Thompson can shower on her own and has a sit down chair and does not require assistance but has no motivation to do it regularly.
Ms Thompson also reported that suicidal ideation has continued, but she has no plan or intent to act anymore, because after the overdose she discovered how upset her parents and siblings were, and she would not want to put them through it again. She said if it was not for them, particularly seeing her family regularly, her thoughts of self-harm and risk would be higher.
Ms Thompson finds it hard to do physical tasks and has a cleaner come to help her do the vacuuming and mopping. She told me she could drive for about 30 minutes, and beyond that the ankle could not tolerate the pressure of using the brake and accelerator. Her brother does the gardening for her.
Ms Thompson said that before the bullying started she was a happy, outgoing person, and her colleagues often said she was too perky. She recalled she was the life of the party. She liked to go bush walking, picnic with friends and go to the gym five days a week. She also enjoyed reading books and cross-stitching.
Ms Thompson has been back at the pool and swimming, but tends to go when it is quiet and only about four to five people at the pool. On the weekend, when there are more people, her brother comes with her, otherwise her anxiety becomes overwhelming.
Ms Thompson's father celebrated his 60th birthday and paid for a trip to America to Disneyland for the whole family. She said that because of her anxiety she did not go.
Ms Thompson does not belong to a club anymore and does not play sports. She enjoys reading books, and this can be crime or science fiction, and she will read for 45 to 60 minutes a day. She follows patterns when doing cross-stitching and can do it for about half an hour to 45 minutes.
Ms Thompson went dress shopping with her sister and said that immediately after she left the shop, she could not remember the sales assistant’s name. Her sister was really surprised because the sales assistant was also called Hayley. Ms Thompson explained that whenever she is around strangers, her anxiety becomes overwhelming and nothing goes into her brain.
Aside from doing cross-stitching, Ms Thompson also does some colouring in, watches television and listens to the Headspace app to practise meditation.
Ms Thompson has visits from her family almost every day. She said a lot of good friends disappeared over time and she has no contact with them. There are a couple of friends who still visit her. She said that occasionally she will go out in public to drink coffee with them, but generally she feels too edgy to be out.”
Under “Summary of injuries and diagnoses”, Dr Hong wrote:
“Given the amount of time that has passed and the treatment Ms Thompson has had, I consider MMI has been reached. I have diagnosed a chronic adjustment disorder on the basis of her described symptoms and the mechanism of her psychological injury.
I have excluded the effects of Ms Thompson's pain and physical injuries from my impairment assessment.”
The AMS is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“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…
70. 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.
71. 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…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
In the matter of Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) Bell P and Payne JA said (Emmett JA concurring):
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to 'social and recreational activities' on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94. 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, i.e. 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.”
The Panel reviewed the appellant’s submissions and the evidence in this matter.
The respondent submitted that Dr Hong, in applying the criteria mandated by the Guidelines, erred in his evaluation by ascribing incorrect classes to the categories of Self Care & Personal Hygiene and Social & Recreational Activities Class.
Social and Recreational Activities
The respondent contended that overall the history detailed by Dr Hong was fundamentally inconsistent with his rating of Class 3 in respect of Social & Recreational Activities. The respondent argued Dr Hong had stated in absolute terms that that applicant did not attend social activities when the hobbies and interaction with others described within the MAC refuted a Class 3 rating. The respondent submitted that in light of the above evidence and consistent with Ballas, the functional impairment fitted within Class 2 and Dr Hong had erred in his assessment.
Pursuant to Table 11.2 of the Guides, the examples under 'Social & Recreational Activities', are described as follows:
“Class 2 - "Mild impairment: occasionally goes out to such events e.g. without
needing a support person, but does not become actively involved (e.g. 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."
Dr Hong rated the applicant as Class 3 in this category noting: “She does not attend social and recreational activities, parties or take holidays. Her anxiety prevents her from engaging in her usual social and recreational activities”.
Dr Hong provided a lot of detail in relation to this category. The applicant no longer attends gym, which she used to attend five days a week, no longer bush walking or picnicking with friends. The applicant does not belong to a book club anymore.
The applicant in her statement dated 15 October 2020 described having daily sleep disturbance, stress, anxiety and depression, loss of social interaction, interference with domestic and household activities, interference with personal hygiene, interference with feeding herself and interference with social and recreational activities including going to the gym and general socialising.
Dr Rastogi, in her report dated 8 May 2020, noted that the applicant reported nightmares from abuse at work and was reliving events that happened at work and some of them were associated with working in future and feeling victimised. The applicant said that she slept for four hours only and was overthinking and had anxious ruminations.
Dr Rastogi noted that the applicant was living with her parents till March 2020 and now she relied on her brother and sister for domestic chores. Dr Rastogi reported that the applicant felt exhausted and fatigued mentally and physically. Dr Rastogi noted that she would have a shower every few days and her selfcare had diminished.
Under “Current functioning /Daily functioning” Dr Rastogi wrote:
“• ADL’s - able to shower but every third day and misses her meals occasionally
needing prompting
• Driving - able to drive restricted due to poor frustration and concentration as
well as pain needing breaks
• Social - isolated and lost all friendships and barely goes out prefers to be at
home, avoids people
• Household and domestic chores - struggle to do household chores and lacks
motivation and drive, things piling up but also due to pain and limited bending
and weightbearing.
• Interests and hobbies - stopped social outings and sporting activities
• Concentration limited, can only read newspaper briefly.”Dr Rastogi rated the applicant as Class 3 for Social and Recreational Activities noting: “Moderate Impairment as remains socially reclusive with limited contact with family and avoids social outings and lost friendships, prefers to be at home.”
Dr Vickery, in his report dated 1 September 2020, wrote:
“Ms Thompson was avoiding socialising in 2019 when “I couldn’t leave the
house but now I can go out with a friend or I meet a friend at a coffee shop
when it is not so busy and with the use of mindfulness and relaxation
strategies.
There is almost daily contact with a close friend as well as having contact with
three other close friends.
Ms Thompson reported being an avid reader and she can read for up to anhour. She enjoys doing cross-stitch.
…Ms Thompson is close to her sister who “lives down the road” and she has
frequent contact with her and her niece and nephew. There is also a closerelationship with her other two siblings and her parents.”
Dr Vickery made a diagnosis of an Adjustment Disorder in partial remission. He did not consider that the applicant had has reached Maximum Medical Improvement on the basis of the history provided.
The Appeal Panel noted that Dr Vickery’s history in relation to the reason as to why the applicant no longer went to the gym or bushwalking was different to that obtained by Dr Hong and Dr Rastogi. In particular, the Appeal Panel noted that Dr Hong had reported that the applicant’s anxiety prevented her from engaging in her usual social and recreational activities. There were also differences in the histories obtained by the doctors as to contact with friends. The history obtained by Dr Hong was more up to date and the Appeal Panel accepted this history.
The Appeal Panel considered whether Dr Hong had erred in making a Class 3 rating for social and recreational activities.
Dr Hong provided a detailed assessment. He obtained a history that the applicant engaged in activities when told by her family, friends and psychologist to do them. Dr Hong noted that her psychologist had instructed her to go out at least three or four times a week, even just to get a takeaway coffee and come home, and she tried to comply. Dr Hong noted that the applicant had been back at the pool swimming but tended to go when it was quiet and only four or five people were there. At weekends when the pool was busier, the applicant was accompanied by her brother otherwise her anxiety became overwhelming. Because of her anxiety she could not go on a trip to Disneyland in America which her father has organised for the family to celebrate his 60th birthday. Although the applicant had visits from her family almost every day, the Appeal Panel noted that such visits took place because the applicant required support and assistance from family members. The applicant said a lot of good friends disappeared over time and she has no contact with them. She did say that occasionally she will go out in public to drink coffee with friends, but generally she felt too edgy to be out.
The respondent submitted that Dr Hong had stated in absolute terms that that applicant did not attend social activities when the hobbies and interaction with others described within the MAC refuted a Class 3 rating. Dr Hong’s reasons need to be read as a whole. This statement by Dr Hong was qualified by the use of the word "usual". The Appeal Panel was satisfied that reading the MAC as a whole, it is clear that Dr Hong does not assign Class 3 impairment based on a history that the applicant does not participate in social or recreational activity whatsoever. Dr Hong has taken a detailed history of the applicant's engagement in Social and Recreational Activities which he considered was consistent with a Class 3 rating.
The Appeal Panel considered that overall the activities that the applicant did freely were “individual activities” and there was no significant social activity unless she was prompted by family or friends. On balance, the Appeal Panel considered that the history was consistent with descriptors in Class 3.
Based on the evidence before the Appeal Panel, and for the reasons provided by Dr Hong in the MAC, the Appeal Panel considered that it was appropriate for Dr Hong on the evidence to make an assessment of Class 3 for social and recreational activities. The material before Dr Hong and his findings supported his determination that the applicant had a class 3 rating for impairment for social and recreational activities. The Appeal Panel was satisfied that there was no demonstrable error in the MAC and that Dr Hong did not apply incorrect criteria contained in Class 3 of the PIRS in this category.
Self-Care & Personal Hygiene
The respondent contended that although Dr Hong noted the applicant required almost daily external assistance, he did not address the fact that Self-Care & Personal Hygiene was significantly impacted by physical complaints/disabilities requiring assistance. The respondent submitted that Dr Hong failed to distinguish between the care required as a result of the psychological injury or physical injury and Dr Hong did not take into consideration the applicant's physical limitations and the impact on Self Care & Personal Hygiene. Further,
Dr Hong did not provide proper reasoning as to how he arrived at a Class 3 assessment, in light of the concurrent physical injury. The respondent contended the applicant was more appropriately classified as Class 2.Pursuant to Table 11.1 of the Guides, the examples under Self Care & Personal Hygiene, are described as follows:
“Class 2 - "Mild impairment: Able to live independently, looks after self adequately,
although may look unkempt occasionally, sometimes misses a meal or
relied on take-away food.’
Class 3 - "Moderate impairment: Can't live independently without regular support.
Needs prompting to shower daily and wear clean clothes. Does not
prepare own meals, frequently misses meals. Family members or
community nurse visits (or should visit) 2-3 times per week to ensure
minimum level of hygiene and nutrition”.Dr Hong rated the applicant as Class 3 in this category noting:
“Ms Thompson’s family prompts her at times and without prompting, she does not shower or eat and cannot maintain adequate self-care. I have explained my finding in detail in other parts of my assessment. Ms Thompson is incapable of independent living without regular support. She has almost daily external assistance.”
Dr Hong provided considerable detail in relation to this category. The applicant reported having a poor diet and often ordered takeaway food, and sometimes she would skip meals and not eat for the whole day, or have just one meal in a day. She had gained about 20 kg due to a combination of lack of activity and poor diet. Dr Hong noted that the applicant’s parents were living with her, but moved to Foster almost 10 months ago. He noted that since then, her sister, who lives down the road, came almost every day to help her, and a brother came a few times a week to help her. Dr Hong reported that the applicant had poor motivation to attend to her self-care or to eat regularly, and generally she ordered takeaways when there was no-one to prepare food for her. The applicant said that she rarely cooks now, as a result of a lack of motivation.
Dr Hong noted that the applicant’s family made comments about her lack of self-care and not showering, and they often prepare meals for her. He reported that her siblings came almost every day.
Dr Hong noted that the applicant could shower on her own and had a sit down chair and did not require assistance but had no motivation to do it regularly. The applicant said that she found it hard to do physical tasks and has a cleaner come to help her do the vacuuming and mopping. She said that her brother did the gardening for her.
The applicant in her statement dated 15 October 2020 described having interference with domestic and household activities, interference with personal hygiene and interference with feeding herself.
Dr Rastogi, in her report dated 8 May 2020, assessed the applicant as Class 2 in Self-Care & Personal Hygiene and having a mild impairment in this category noting: “as she is skipping meals and showers and presented with limited self-care, does not put make up and needs prompting”.
Dr Vickery, in his report dated 1 September 2020, wrote: “There is regular showering every few days however there are ‘some days I stay in my pyjamas maybe twice a week.’ There is reduced appetite.”
The Appeal Panel considered whether Dr Hong had erred in making a Class 3 rating for Self-Care & Personal Hygiene.
It was significant in the view of the Appeal Panel that under “Summary of injuries and diagnoses”, Dr Hong wrote:“ I have excluded the effects of Ms Thompson's pain and physical injuries from my impairment assessment.”
Dr Hong provided a detailed assessment in this category. The Appeal Panel noted that
Dr Hong carefully identified lack of motivation as being the reason for her rarely cooking. He also noted that she had no motivation to shower regularly.
The respondent argued that Dr Hong did not address the fact that Self Care & Personal Hygiene was significantly impacted by physical complaints/disabilities requiring assistance and failed to distinguish between the care required as a result of the psychological injury or physical injury.
The Appeal Panel considered that Dr Hong did in fact take into consideration the physical injuries in making his assessment including the assessment on the category of Self Care & Personal Hygiene and excluded the effects of the applicant’s pain and physical injuries from his assessment. Dr Hong was not required to provide detailed reasoning as to how he arrived at a Class 3 assessment, in light of the concurrent physical injury. It was clear that
Dr Hong assigned Class 3 impairment in Self Care and Personal Hygiene having regard to the applicant's lack of motivation to perform her self-care tasks. Further, Dr Hong specifically indicated that the applicant requires "prompting" to participate in self-care and relied on this finding in his assessment that she required regular support. The Appeal Panel was satisfied that Dr Hong was referring to the applicant's difficulties with motivation arising from her psychological injury.
Dr Hong referred to Dr Rastogi's report and explained why he has arrived at a different conclusion with respect to self-care on page 7 of the MAC. The Appeal Panel considered, on balance, that the history obtained by Dr Hong was consistent with Class 3 rating for Self Care & Personal Hygiene.
Based on the evidence before the Appeal Panel, and for the reasons provided by Dr Hong in the MAC, the Appeal Panel considered that it was appropriate for Dr Hong on the evidence to make an assessment of Class 3 for Self-Care & Personal Hygiene. The Appeal Panel was satisfied that Dr Hong did not apply incorrect criteria contained in Class 3 of the PIRS and that there was no demonstrable error in the MAC.
In conclusion, the Appeal Panel did not consider that there has been an incorrect application of relevant assessment criteria, that is, the relevant Guidelines including the PIRS Guidelines or any demonstrable error in the assessments of Dr Burrow and of Dr Hong.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 January 2021 by Dr Greggory Burrow and the MAC issued on 8 February 2021 by Dr Michael Hong should be confirmed.
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