Tibbey v Central Coast Council
[2023] NSWPICMP 510
•13 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tibbey v Central Coast Council [2023] NSWPICMP 510 |
| APPELLANT: | Mark Tibbey |
| RESPONDENT: | Central Coast Council |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 13 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against 7% WPI in psychological injury case: whether Medical Assessor had exposed his path of reasoning; Held – path of reasoning conspicuous by its absence, presumption of regularity rebutted by lack of reasoning, appellant re-examined; Wingfoot Australia Partners Pty Ltd v Kocak, El Masri v Woolworths Ltd, and Western Sydney Local Health District v Chan applied; Bojko v ICM Property Service Pty Ltd & Ors, Ferguson v State of New South Wales, and Glenn William Parker v Select Civil Pty Ltd referred to; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 May 2023 Mark Tibbey (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 May 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guide) 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 10 February 2023, the delegate of the President referred this matter for a WPI assessment caused by a psychiatric/psychological disorder, which occurred on a deemed date of 12 October 2022.
Mr Tibbey was exposed to significant episodes of extreme violence from a co-worker along with threats made against him and his family. He obtained an apprehended violence order against the fellow worker but felt unsupported by management who in fact enabled the conduct of his assailant.
The Medical Assessor assessed 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because as explained below, a demonstrable error was found and a re-examination was required to re-assess the worker’s entitlement.
We note that the appellant failed to tick the appropriate box under the grounds of appeal in his Form 10 Appeal Against a Decision of Medical Assessor. However, the issue was raised in the section of the form entitled Supporting Documentation.
Section 42 of the Personal Injury Commission Act 2020 provides that the “guiding principle” for proceedings within the Personal Injury Commission (Commission) is to facilitate the real issues in the proceedings and s 43 provides a proceedings in any matter before the Commission are to be conducted with as little formality and technicality as a proper consideration of the matter permits.
Although proceedings before a Medical Panel are not strictly speaking matters that are before the Commission as a matter of comity, it is appropriate that the Appeal Panel observed those statutory requirements.
FRESH EVIDENCE
We note that the “Grounds of Appeal” template herein refers to a ground of appeal as being the “availability of additional relevant information” in addition to the criteria contained within the parenthesis that follows. We shall discuss this further below.
Mr Tibbey sought to introduce a further statement of evidence which he had made dated 16 May 2023.
We note that no submissions were made as to whether the additional evidence was admissible or not. We note further that Central Coast Council (the respondent) did not raise any question as to the admissibility of Mr Tibbey’s latest statement.
Mr Tibbey’s additional statement was two paragraphs in length. Mr Tibbey referred to the statement within the MAC by the Medical Assessor that:
“[Mr Tibbey] says he is not allowed to work on WorkCover but would like to eventually return to work, perhaps in disability services.”[1]
[1] Appeal papers page 22.
Mr Tibbey stated that the record was not reflective of the comments he had made or that he intended to communicate. He said:
“The comments I made were ironic, were made in jest and with exasperation in my tone. In hindsight what I said was not very well worded. Nevertheless, what is recorded by the medical assessor does not record what I said or what I meant to communicate.”
Mr Tibbey thought that he had said words to the effect:
“Maybe I should work in disability services because I already work with some of the most fucking retarded people ever.”
Mr Tibbey stated that his comment was not intended to be taken literally, which the Medical Assessor appears to have done.
Mr Tibbey submitted that appeared to represent an obvious miscommunication and misunderstanding.
DISCUSSION AS TO FRESH EVIDENCE
The respondent, not having made any submissions in respect of this additional evidence, may be presumed to have conceded that it is admissible.
Section 327(3) provides relevantly:
“(3) The grounds for appeal under this section are any of the following grounds-
(a) ….
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against)….
(c)…
(d)….”
Section 328(3) of the 1998 Act provides:
“Procedure on Appeal
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The issue of the admissibility of a statement by a claimant concerning the factual accuracy of what was recorded by the Medical Assessor has been considered in a number of cases. The latest was Luck v Workers Compensation Nominal Insurers & Ors.[2] In that case Weinstein J found that the Appeal Panel had properly rejected the claimant’s statement regarding the conduct of the assessment with the Medical Assessor, but quashed the decision of the Appeal Panel in any event because it had used parts of the statement which it had already rejected in dismissing the appeal.
[2] [2023] NSWSC 842.
In Lukacevic v Coates Hire Operations Pty Limited[3] the majority, Hodgson JA and Handley AJA found that the statement by the claimant criticising the conduct of the Medical Assessor was inadmissible. Giles JA dissented, holding that the contents of the statement contained the grounds of the appellant’s appeal, and the Appeal Panel wrongfully exercised a discretion in rejecting the appellant’s statement, as it was unreasonable to do so in that context. The principle enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[4] was applicable, where the exercise of discretion was so unreasonable that no reasonable person would have exercised it, Grove JA decided.
[3] [2011] NSWCA 112 (6 May 2011).
[4] [1947] EWCA Civ 1; 1948 1KB 223.
In Lukacevic Hodgson JA, Handley AJA agreeing stated at [78]:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
We note that Lukacevic was referred to in Luck, but in a different context.
We note further in Luck that counsel relied on dicta from Petrovic v BC Serv No 14 Pty Limited and Ors,[5] whereby Hoeben J held that the term “additional relevant information” in s 327(3)(b) of the 1998 Act applied to a restricted class of evidence. His Honour said, from [31]:
“ ….. 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 subs 327(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.
…
34 There is another consideration which I have taken into account. If the function of the Registrar under s327 is to be in reality that of a gatekeeper, then statutory declarations such as were sworn in this case should not be regarded as ‘additional relevant information’ for the purposes of s327(3)(b). If they are, it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.
35 Once a matter has come before a MAP, the situation is different. As I indicated in Zuanic v Gypro-tech (Australia) Pty Limited [2006] NSWSC 739; (2005-6) 66 NSWLR 206 the powers of the MAP under s324 and 328(3) are quite extensive. It is also not without significance that subs328(3) does not have the qualification of ‘additional relevant information’. Such matters as were contained in the statutory declarations could be considered by the MAP at that stage.”
[5] [2007] NSWSC 1156.
Thus, in Petrovic, Hoeben J was dealing with the powers of the gatekeeper under s 327(3) of the 1998 Act, whereas in Lukacevic the Court of Appeal was concerned with the provisions of s 328(3). Although in Luck it was held that interpretation by Hoeben J of s 327(3)(b) applied to a determination by a Medical Panel, the wording of s 328(3) is different, as found by Hoeben J, as the words “additional relevant information” in s 327(2) are not repeated in s 328(3). It does not seem, with respect, that this distinction was the subject of any submissions before Weinstein J.
We would observe in passing that the Form 10 Application might perhaps cause some confusion as it repeats the relevant ground of appeal set out in s 327(3)(b), namely:
“(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against).”
It can be seen that Mr Tibbey was referring to a conversation that occurred during the assessment with the Medical Assessor. Accordingly, it is on its face admissible, as it was not available and could not reasonably have been obtained prior to the assessment.
As will be seen the whole of Mr Tibbey’s case in this appeal is not dependent on this statement, it only relates to the category in the Psychiatric Impairment Rating Scale (PIRS) pertaining to employment.
We are satisfied that it does have substantial prima facie probative value. It is certainly very particular and is also quite plausible.
As will be seen the reasons given by the Medical Assessor have not been adequate to demonstrate the Medical Assessor's path of reasoning. One of the reasons for that is that he has been most cursory in his explanations.
We accordingly admit the short statement.
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.
Further medical examination
Dr Graham Blom of the Appeal Panel conducted an examination of the worker on 22 September 2023 and reported to the Appeal Panel.
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 [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 appellant submitted that the Medical Assessor had failed to give adequate reasons in a MAC that was too brief and too general to explain his actual path of reasoning in sufficient detail to enable a Court to see whether his opinion did or did not involve any error of law.
The MAC
As to Mr Tibbey's social activities and activities of daily living, the Medical Assessor recorded the following:[6]
“Social activities/ADL: reduction in ADLs. Reduction in social activities. Able to travel independently. He attends to his garden. He goes fishing. He enjoys walks. He has stopped making guitars and playing in a rock band. He goes to Sydney to spend time with family. He does some of the cooking. He showers every few days. He says he is ‘not allowed to work’ on WorkCover but would like to eventually return to work, perhaps in disability services.”
[6] Appeal papers page 21.
In considering the opinions of the other medical practitioners, the Medical Assessor said:[7]
“Dr Smith 26/8/22 diagnosed PTSD, PDD with MDE and alcohol use disorder WPI 26% Dr Davies 30/11/22 thought that MMI had not been reached. I think that MMI has been reached as the symptoms have persisted for years and the impact is unlikely to change significantly in the next 12 months. My WPI calculation reflects improvement in the condition since August 2022.”
[7] Appeal papers page 22.
The PIRS was in the following terms:
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
Name
MARK TIBBEY
Claim reference number
(if known)
DOB
Age at time of injury
Date of Injury
12/10/22 - deemed
Occupation at time of injury
Council worker
Date of Assessment
27/4/23
Marital Status before injury
Psychiatric diagnoses
1.PTSD
2. PDD
3. Alcohol Use Disorder
4.
Psychiatric treatment
Medication, psychiatrist, psychologist
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Reduction in ADLs and cooking
Social and recreational activities
3
Has withdrawn from social and recreational activities
Travel
2
Is able to drive independently
Social functioning
2
Family relationships are strained
Concentration, persistence and pace
2
Subjectively impaired concentration
No deficits during interview
Employability
3
Is currently moderately impaired
Is not currently working but is able to slowly perform in
a less stressful role in a different environment
Score
Median Class
2
2
2
2
3
3
2
Aggregate Score Impairment
Total
%
+
+
+
+
+
14
7
SUBMISSIONS
Mr Tibbey submitted that the MAC was notable for its brevity and lack of detail. It was submitted that the history taken by the Medical Assessor was not sufficient to explain the ratings he gave in the PIRS table and was inadequate to demonstrate that he had considered all the aspects of the PIRS criteria.
We were referred to Wingfoot Australia Partners Pty Ltd v Kocak[8] and it was noted that the dicta in Wingfoot also applies to the duties of a Medical Assessor. We were referred in that regard to El Masri v Woolworths Ltd.[9]
[8] [2013] HCA 43; 252 CLR 480.
[9] [2014] NSW SC 134.
In the light of the dicta in Wingfoot it was submitted that the Medical Assessor had failed to show the path of reasoning by which he came to the assessments he gave.
Mr Tibbey submitted that this was evident in each of the categories that the Medical Assessor was required to assess, in the following respects.
Self-care and personal hygiene
The reasons given in the PIRS table, it was submitted, was so lacking in detail that it was not possible to follow the Medical Assessor’s reasoning with any clarity. A claimant’s ability to care for himself and his appearance, independently or otherwise, appeared to be central to the descriptors set out in Table 11.1 of the Guides, Mr Tibbey submitted, and the reasons given were too inadequate to explain how they were applied to Mr Tibbey.
Social and recreational activities
The same submissions were made with respect to the reasoning of the Medical Assessor in this category, the descriptors for which appear in Table 11.2 of the Guides. Again, it was submitted that the Medical Assessor had not taken a proper history and that his reasoning was inadequate to explain his assessment.
Moreover, Mr Tibbey submitted that the activities mentioned such as attending a garden and enjoying walking were not “social activities”.
Again, there was no reference to the descriptors within the category.
Travel
Mr Tibbey submitted that the history recorded was so truncated that it failed to record the limits of Mr Tibbey’s ability to travel, and did not provide any comparison with his pre-injury function. It was not possible to follow the Medical Assessor's path of reasoning in this category either.
Social functioning
The same criticism was made by Mr Tibbey as to the assessment in this category. He noted that there was no history taken of the strain or separation from his partner or loss of friendships or loss of relationship with his siblings or his children.
Mr Tibbey submitted that the Medical Assessor failed to consider almost all of the factors within the category.
Concentration pace and persistence
Mr Tibbey essentially made the same submissions as to the assessment by the Medical Assessor in this category. The reasons he gave in the PIRS made no reference to the relevant table, Table 11.5, and particularly the descriptors regarding completing a course of study, reading ability or other matters therein set out.
Mr Tibbey submitted that the assessment was deficient in that there was no explanation given for the classification that was made by the Medical Assessor. It was submitted that in particular the Medical Assessor had failed to include any subjective deficits.
Employability
It is this category that Mr Tibbey addressed in his additional statement which we have admitted. It was at this stage of his submissions and that Mr Tibbey sought leave to rely on the evidence, which is an inappropriate way to approach the procedural requirements set out in the Application to Appeal. Submissions are required to be made regarding the admissibility of additional relevant evidence. As discussed above, there is a body of authority and statutory requirement that impinges on whether a document is admissible as fresh evidence or not.
Be that as it may, Mr Tibbey submitted that in making this assessment the Medical Assessor misunderstood his flippant comment, and used it to find Mr Tibbey was able to find some employment. There was also a contradiction whether the Medical Assessor meant that there was a current moderate capacity for work in the face of his comment that he was currently not working.
Moreover was submitted there was no evidence before the Medical Assessor that would support his conclusion that Mr Tibbey had a moderate impairment in any event – apart from the flippant comment, as we understood the submission.
Mr Tibbey submitted that in view of these matters only re-examination would rectify the errors made.
Respondent
The respondent submitted that Mr Tibbey had failed to make out that incorrect criteria had been applied by the Medical Assessor.
Alternatively, it submitted that the matter could be dealt with on the papers and not be the subject of a further assessment.
The respondent disputed that the path of reasoning used by the Medical Assessor was not apparent, accepting that his reasons were “economical”.
We referred to the PIRS table (Table 11.8) in that regard.
The respondent referred to Chapter 11.6 and Chapter 1.6 of the Guides. It submitted that “at a global level” Mr Tibbey did not identify any relevant error in the history obtained nor in the PIRS categories that the Medical Assessor assessed.
The additional statement took the matter no further as, it submitted, as “primacy attaches to the opinion of the MA….”
We referred to Ferguson v State of New South Wales[10] regarding the pre-eminence of the clinical observations made in psychiatric cases.
[10] [2017] NSWSC 887.
The respondent submitted that it was apparent that the Medical Assessor did have regard to all the relevant facts and that he had available to him the competing qualified opinions of Drs Smith and Davies, which he had considered at page three.
The Medical Assessor had explained the difference in his approach by referring to the improvement in Mr Tibbey's conditions since August 2022.
The Medical Assessor was not obliged to exhaustively record the history, it was submitted. and it was a matter for him as to the significance of the matters that he did report on.
The Medical Assessor, it was submitted further, did what he was both entitled and legally obliged to do.
We were referred to Glenn William Parker v Select Civil Pty Limited[11] as authority for the proposition that for error to be established there has to be shown more than a mere difference of opinion.
DISCUSSION
[11] [2018] NSWSC 140 at [66].
The 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[12] 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.”
[12] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[13].
[13] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[14] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [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 [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’: Appeal Panel reasons at [37].”
[14] [2017] NSWSC 887.
In Glenn William Parker v Select Civil Pty Ltd,[15] 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]) ...”
[15] [2018] NSWSC 140.
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.”
As indicated, we are of the view that the issues raised by the appellant go considerably further than a mere difference of opinion. In Western Sydney Local Health District v Chan[16] Adams J also adopted the dicta in Wingfoot as being applicable to the task of a Medical Assessor. He said:
“In Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel’s task in that case is analogous to the role of the AMS under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
[47] The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[48] The reasons that s 68(2) of the [Accident Compensation] Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”
[16] [2015] NSWSC 1968 at [13].
We note in Wingfoot at [55] the Court also said:
“…The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. ...If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record ...”
The reasons given by the Medical Assessor fell far short of enabling the Panel to make any evaluation of the basis of his assessments in the PIRS categories. Chapter 11 of the Guides contain six tables, each of which sets out five classes of descriptors. As noted above, they are not criteria, but are examples of the sort of behavioural conduct that inform the severity of the impairment in each category. It is not sufficient to explain the reasons for the decisions in each category by a shorthand method which leaves the parties to speculate about what part of the class description a Medical Assessor was referring to, and indeed what evidence he/she was relying on. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court (or an appellate body such as the Panel) to see whether the opinion does or does not involve any error of law. The MAC does not reach that standard.
The reasons given for a class 2 rating in the category of self-care and personal hygiene cited “reduction in ADLs and cooking.” The descriptor was in class 2 are:
“Mild impairment: able to live independently; looks after self adequately, though may look unkempt occasionally, sometimes misses a meal or relies on takeaway food.”
It can be seen that there is no reference to the activities of daily living (ADLs) nor “cooking.” The reasons might equally apply to class 1:
“No deficit, or minor deficit attributable to the normal variation in the general population.”
Mr Tibbey’s own description in his statement of 21 December 2022 was perhaps more compatible with a class 3 rating:
“Moderate impairment: can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes stop does not prepare own meals, frequently misses meals. Family member or community nurse visits or should visit two – three times per week to ensure minimum level of hygiene and nutrition.”
Mr Tibbey said:[17]
“My day-to-day functioning remains significantly affected. I require daily support from my wife, Kim and must be prompted by her to perform general tasks or take care of my personal hygiene. My wife makes me go and get a haircut and encourages me to change clothes stop I will not often shower or shave unless she has asked me to and fine [sic – find] that there is no reason for me to get dressed on a morning as I try not to avoid leaving the house whenever I can [sic].”
[17] Appeal papers page 35 at [12].
There was no attempt by the Medical Assessor to engage with this evidence, nor indeed the assessment by Dr Glenn Smith, consultant forensic psychiatrist, who on 27 August 2022 made the following comments regarding self-care and personal hygiene:[18]
“Mr Tibbey stated that he showers only every couple of days due to reduced motivation. He stated that his wife prepares most of the meals but sometimes he buys takeaway food. He stated that he has a cleaner come every two weeks for around two hours. He performed some yard work including mowing and gardening.”
[18] Appeal papers page 45 at 58.
This inattention to the evidence before him also infected the reasoning given by the Medical Assessor in all the other categories. We note the submissions by the respondent, and agree that the reasons given by the Medical Assessor were indeed “economical.” They were, however, also unable to be understood sufficiently to enable the Panel to see whether the MAC does or does not involve any error.
We did not follow the respondent’s submission that “primacy attaches to the opinion of the MA.” Moreover its submission that the Medical Assessor had regard to all the relevant facts was not supported by reference to any portion of the MAC. It is difficult from a reading of the MAC to infer that the Medical Assessor had in fact read all the material before him. Whilst there is a presumption of regularity which attends administrative action, and thus a presumption that a Medical Assessor will have read all the material before him,[19] the paucity of reasoning exhibited rebuts that presumption. There is nothing more than the most peremptory reference to the other expert opinions, and the reference at [10c] of the MAC to the diagnoses and assessments of Dr Smith and Dr Davies falls far short of the standard required as set out in Vegan and Wingfoot. The Medical Assessors path of reasoning was conspicuous by its absence, and whilst reasons need not be extensive or provide a detailed explanation, the standard set out in Vegan requires a minimum explanation of the criteria applied in reaching a medically professional judgement, which the Medical Assessor has failed to do.
[19] Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175 at [36].
The report of Dr Blom follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W451/23 |
Appellant: | Mark Tibby |
Respondent: | Central Coast Council |
Date of Determination: | 8 June 2023 |
Examination Conducted By: | Dr. Graham Blom |
Date of Examination: | 22nd September 2023 |
1.The workers medical history, where it differs from previous records
As brevity and lack of detail of the original MAC were cited as part of the Grounds of Appeal, I have reviewed the History of the Incident and subsequent related events in full including events following the previous MAC.
Mr Tibby began working as a crew member/truck driver at Central Coast Council, from late 2018. From very early on in his employment he was harassed, intimidated and threatened with violence by a co-worker, ‘John M’. Mr Tibby had been told by his co-workers that ‘John M’ had a lengthy and serious history of violence and crime and so he believed that the threats were credible and as a result was extremely frightened by them, especially as these threats included regular and repetitive threats of extreme violence against him. Mr Tibby complained on multiple occasions to his supervisors, but no action was taken and in fact it appeared to Mr Tibby that he seemed to be teamed with ‘John M’ on a frequent basis.
As these threats and general harassment continued Mr Tibby initially responded with anger and then distress leading to deteriorating feelings of anxiety and panic. He became increasingly anxious, prior to work and remained anxious for much of the workday. If he had to work with ‘John M’ or in some other way was confronted with him, he had panic attacks. He began drinking, from his account about eight – 10 standard drinks/day. He became increasingly preoccupied with the threats and constantly ruminated about what could happen which resulted in him waking feeling angry, anxious and overwhelmed. He felt increasingly frightened even away from the workplace and began to worry about the possibility of ‘John M’ invading his home so that he began sleeping with a crowbar next to his bed because of his fears. Because of his ongoing anger and anxiety, his relationship with his wife, whom he had only married in October 2018, began to deteriorate, marked by increasing conflict and strain. He began to feel depressed with low mood and episodes of tearfulness. He became withdrawn and avoidant and generally distrustful of other people. Because of his fear of attack, he was hypervigilant and easily startled. He began experiencing flashbacks towards the end of 2019 or early in 2020, which were triggered by visiting sites where ‘John M’ had made threats. His motivation dropped, his concentration and focus became impaired and generally, he struggled with any pleasure in his life. He had consulted his general practitioner on multiple occasions during 2019 and 2020, he said, although he does not appear to have been given any active treatment. Mr Tibby said that he generally approached his GP for days off work, usually related to his being aware that he would have to work with ‘John M’, during those days.
Eventually he became so overwhelmed that by the end of 2020. He ceased work and his general practitioner provided a Workers Compensation Certificate. He however was not initiated on any treatment for his deteriorating symptomatology. In May 2021, he returned to work but again was subjected to threats of violence by ‘John M’ which were yet again ignored by his supervisors. He approached the police with his concerns at this point. Soon after this ‘John M’, who at this time no longer worked with the council approached Mr Tibby while he was working stating that he was going to, amongst other things ‘kill you’. Needless to say, Mr Tibby found this extremely frightening and distressing and again approached the police who recommended an Apprehended Violence Order (AVO). Mr Tibby again took time off work and at this point was referred to a psychologist and initiated on the antidepressant medication, sertraline, however, he only remained on this for a period of weeks because of side-effects that he experienced. Mr Tibby returned to work around August 2021 but at this stage was advised by his co-workers that ‘John M’ had made threats that he was going to come to his house and assault him with a baseball bat. Mr Tibby was terrified and in fact organised surveillance cameras for his house and placed a sharpened axe at his front and back door. He had found the initial psychological treatment that he had been referred to not helpful, but was later referred to another psychologist, Mr Susan Stern whom he saw on a fortnightly basis. He has found her interventions useful and has continued to see her. Mr Tibby ceased work in late 2021 and has never returned. He was subsequently medically retired, he said without consultation, and about which he feels very angry.
Throughout 2021 and 2022, Mr Tibby’s depression and anxiety persisted at times becoming extremely severe. He said that he has taken at least two or three overdoses of Panadeine Forte with alcohol, hoping that he would go to sleep and not wake up although I was not clear if he actually presented to hospital for any of these.
During 2022 Mr Tibby continued contact with his psychologist and also consulted a psychiatrist, Dr Rastogi, on a few occasions. He said that he was trialled on several antidepressant medications, although was unable to remember which ones. In any case, he did not continue with any of these because of side-effects. He has not been on any medications now for over a year and there are no plans to undertake any further trials of medications.
Over this period his symptomatology has not improved. He has remained anxious, depressed with marked withdrawal and avoidance with ongoing heavy use of alcohol.
2. Present Treatment.
Mr Tibby is currently only receiving minimal treatment. He consults his psychologist, Ms Stern, on an ad hoc basis, roughly every six weeks or so depending on need. He currently is not taking any psychotropic medication nor is there any plan to take any in the future.
He consults his general practitioner approximately every month.
There is currently no plan for any other form of active treatment future.
3. Present Symptoms.
Mr Tibby continues to experience a wide range of psychiatric symptomatology. He remains withdrawn and avoidant and deeply distrustful of other people. Despite spending most of his time at home, he remains anxious and hypervigilant and generally fearful of being attacked or assaulted. As a result, he lives in essentially fortress conditions. He has multiple surveillance cameras around his house and a dash-cam in his car. He said that his fences are lined with spikes as is his side gate so that anyone who attempts to access his property illegally. ‘Would be torn to pieces.’. He has axes, which he regularly sharpens, at both his front door and back door to prevent intrusion. He continues to sleep with a crowbar next to his bed.
He relentlessly ruminates about what happened to him and is particularly focused on the unfairness of the events at his workplace, associated with feelings of anger, fear and a sense of helplessness. He continues to have regular nightmares waking either distraught or in panic. Generally, his sleep is quite disturbed. He has daytime flashbacks -these are usually triggered by driving past a place where he previously worked. These flashbacks are associated with extreme anxiety.
His mood is low, and he is regularly tearful. He describes feeling worthless and hopeless and experiences considerable guilt about the impact of his illness on his wife. His motivation tends to fluctuate, and his energy is generally low. He frequently naps in the afternoon. He has little interest and drive and limited capacity for pleasure. His concentration is poor, and he particularly struggles with focus and memory, finding it difficult to persist at tasks that require concentration.
He continues to drink alcohol at dangerous levels, consuming approximately 8 to 10 standard drinks/day, usually as beer (about six cans full-strength beer/day). Although he ‘tries’ to have one or two alcohol free days. He only achieves this, however, with the support of his wife who distracts him, during periods of craving. Nevertheless, he experiences craving most days. He did not describe any withdrawal symptoms.
4. Social Activities/ADLs.
Mr Tibby continues to live at home with his wife. He appears to do very little during the day tending to spend a considerable amount of time in the garden listening to the birds occasionally doing some gardening or mowing. He does very little housework and is dependent upon his wife for the meals that he eats. If she does not cook, he tends to eat poorly nutritious food such as Weet-Bix, because they are easy to prepare. Alternatively, he does not eat at all because he can’t be bothered. He tends to drink excessive amounts of alcohol most days of the week and is only constrained by the intervention of his wife. His hygiene is poor, he only showers infrequently, usually when prompted by his wife. He does not attend to his grooming and has over a week’s beard growth, which is uncared for, as well as unkempt, straggly hair.
He is markedly withdrawn and avoidant and has extremely limited social activity. He mostly spends time with his wife and occasionally will go for a walk with her. He also walks alone very occasionally and does some gardening. Otherwise, he has very limited social activity. He said that if a friend visited, he would ‘offer him a beer.’ But this is an infrequent occurrence.
He is able to drive alone in the local area, although generally is reluctant because of his anxiety and withdrawal. If he drives outside of the local area. His wife always drives for him because of his level of anxiety, and his poor attention.
His relationship with his wife is strained and there is reasonably regular conflict due to his irritability and avoidance. Nevertheless, his wife is clearly devoted to him, and they have not separated nor has there been any violence in the relationship. I asked about his relationship with his daughter, which is very limited, but from his description, it is clear that this state of affairs existed prior to his injury and was not a result of his injury. He has lost most of his friends because of his withdrawal avoidance and irritability.
He struggles with concentration and focus and persistence. He certainly would not be able to follow complex instructions or engage in a course. In fact, he said that he finds it difficult to read a newspaper article and if he wants to know what’s happening in the news his wife reads to him. He has the television on much of the time, although this is more for background noise, and he struggles to actually follow a movie or anything but very simple and brief television series.
He is markedly withdrawn and avoidant with substantial symptomatology of both anxiety and depression. His concentration is poor, and he is vulnerable to disruption into more serious disorder. He has not worked now for about two years and given his level of symptomatology and impairment will not be able to be employed in any capacity in the foreseeable future.
5. Mental State Examination.
At the beginning of the interview, Mr Tibby was withdrawn irritable and had a remarkably flattened affect, with an apparent limited capacity for interaction. When I asked about the events leading up to his injury, and he began recalling events at the council, he became increasingly enraged about what had happened, to the point that it was difficult to interrupt him. Gradually, however I was able to engage with him in a more productive manner and obtain a history of events and particularly its impact upon him. Nevertheless, throughout the interview he was easily sidetracked into recall of events at the council and his rage about them. At other times he became profoundly distressed and tearful, especially when he was thinking about or trying to describe his symptoms. He poignantly described the level of guilt that he feels about the impact of his illness upon his wife, whom he had only married a few months prior to starting at the council.
He presented as an unkempt man whose hair was straggly and uncombed and who had an uncared for growth of beard. He was wearing a fleece. He had no difficulty managing the teleconference application and the quality of the transmission was good.
Mr Tibby was markedly emotionally volatile, although this overlaid a general reduction in at affect beyond anger and tearfulness. He appeared sad, worn and had an air of having given up. In many ways, he presented as a defeated man. He talked of previous suicidal ideation and attempts but was not suicidal at this time.
There was no evidence of hallucinations, delusions or formal thought disorder. He did not present as psychotic.
His cognitive function was somewhat impaired, although he generally managed to persist at the interview although at times he struggled with memory and remaining focused on the task at hand. This was consistent however with his overall presentation and did not present to me as organic impairment.
6. Diagnosis.
Currently the DSM 5 classificatory system. Mr Tibby meets the criteria for the following diagnoses:
·Post Traumatic Stress Disorder – chronic.
·Persistent Major Depressive Disorder
·Alcohol Misuse Disorder.
7. My brief comments regarding the other medical opinions and findings submitted by the parties.
The Medical Assessment of Dr Gerard Chew.
As mentioned in the Appeal, the MAC is remarkably brief with only limited reasoning for his PIRS findings I agree with Dr Chew’s diagnosis of post-traumatic stress disorder and Alcohol Use Disorder. Dr Chew diagnoses Mr Tibby’s depressive symptoms as Persistent Depressive Disorder which is a less acute, more chronic form of depression. I believe that Mr Tibby’s presentation at this interview is sufficient warrant the diagnosis of a Major Depressive Disorder which is persistent (chronic). It may be that the severity of Mr Tibby’s depression varies between Persistent Depressive disorder with episodes of Major Depressive Disorder.
I disagree with several of Dr Chew’s PIRS ratings, including self-care, concentration and persistence, and employability rating him a higher on each scale. For the reasons described. I do not believe that Mr Tibby would be able to live independently without regular support from his wife, in that he needs repetitive prompting to shower, does not prepare his own meals. If he had to manage on his own, it is likely his nutrition and personal hygiene would be grossly inadequate, and his alcohol use would spiral into very severe disorder.
Mr Tibby most certainly demonstrated difficulties with concentration during this interview and described substantial problems with concentration and focus and memory.
I am unable to understand why Dr Chew believes that Mr Tibby would be able to work in any other role given the level of his symptoms and impairment. I do not believe he is able capable of working at all.
The report of Dr Glen Smith dated 27 August 2022.
Dr Smith provides a thorough and extensive history. I agree with his diagnoses. I also agree with most of his PIRS class ratings except for those of travel and social functioning. Dr. Smith notes that Mr Tibby said that ‘he only rarely drive alone and he is hypervigilant looking at the front and rear cameras while he is driving’. Whilst I am sure Mr Tibby is hypervigilant while driving, nevertheless, he clearly described capacity to drive in the local area. Therefore, class II is more appropriate.
For social functioning. Dr Smith states ‘Mr Tibby described marked strain in the relationship with his wife due to the issues and he has slept in the back studio sometimes ‘when I’m in a rage and angry.’ He stated that he has wanted to leave because he thought that would be safe for his family, but his wife convinced him to stay.’ While I agree with most of what Dr Smith describes nevertheless there has not been any separation nor has there been violence. Whilst there is conflict in the relationship and Mr Tibby sometimes separates himself from his wife because of his anger, it is clear from his description that she remains quite devoted to him, and that the relationship is intact, therefore I believe class II is more appropriate given the PIRS descriptors.
The report of Associate Prof Gordon Davies, dated 30 November 2022.
Prof Davies makes a diagnosis of Major Depression, using the ICD 10 system. He does not make a diagnosis of PTSD and does not appear to have taken a history of the extent of the threats and intimidation Mr Tibby endured nor the level of anxiety that he experienced in response. I believe that the threats and intimidation meet criteria A of for the diagnosis of PTSD. Mr Tibby also clearly described significant re-experiencing phenomena, hypervigilance, avoidance and withdrawal, emotional disruption and significant levels of impairment, all of which go to the diagnosis of PTSD, which I think is appropriate. Mr Tibby also described excessive alcohol use, which is medically unwise, almost certainly increase in his level of anxiety and depression and associated with craving such that I believe a diagnosis is warranted for this.
Prof Davies said that Mr Tibby has not reached maximum medical improvement and therefore did not undertake a Whole Person Impairment rating. It has already been established in the medical assessment that MMI has been reached, and this has not been disputed by either party.
8. Evaluation of Permanent Impairment
All PIRS categories were appealed against, so I have re-examined all six categories and come to a new Whole Person Impairment. I have rated Mr Tibby as having 22% Whole Person Impairment. I have attached my PIRS table.
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
Name
Mark Tibby
Claim reference number (if known)
DOB
16 May 1968
Age at time of injury
54 years
Date of Injury
12 October 2022, deemed
Occupation at time of injury
Crew member/truck driver
Date of Assessment
22 September 2023
Marital Status before injury
Married
Psychiatric diagnoses
1. PTSD – chronic
2. Persistent Major Depressive Disorder
3. Alcohol Use Disorder
4.
Psychiatric treatment
Currently psychological treatment only, previously medications
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
3
He does very little housework and is dependent upon his wife for the meals that he eats. If she does not cook, he tends to eat poorly nutritious food such as Weet-Bix, because they are easy to prepare. Alternatively, he does not eat at all because he can’t be bothered. He tends to drink excessive amounts of alcohol most days of the week and is only constrained by the intervention of his wife. His hygiene is poor, he only showers infrequently, usually when prompted by his wife. He does not attend to his grooming and has over a week’s beard growth, which is uncared for, as well as unkempt, straggly hair.
Social and recreational activities
3
He is markedly withdrawn and avoidant and has extremely limited social activity. He mostly spends time with his wife and occasionally will go for a walk with her. He also walks alone very occasionally and does some gardening. Otherwise, he has very limited social activity. He said that if a friend visited, he would ‘offer him a beer.’ But this is an infrequent occurrence
Travel
2
He is able to drive alone in the local area, although generally is reluctant because of his anxiety and withdrawal. If he drives outside of the local area. His wife always drives for him because of his level of anxiety, and his poor attention.
Social functioning
2
His relationship with his wife is strained and there is reasonably regular conflict due to his irritability and avoidance. Nevertheless, his wife is clearly devoted to him, and they have not separated nor has there been any violence in the relationship. I asked about his relationship with his daughter, which is very limited, but from his description, it is clear that this state of affairs existed prior to his injury and was not a result of his injury. He has lost most of his friends because of his withdrawal avoidance and irritability.
Concentration, persistence and pace
3
He struggles with concentration and focus and persistence. He certainly would not be able to follow complex instructions or engage in a course. In fact, he said that he finds it difficult to read a newspaper article and if he wants to know what’s happening in the news his wife reads to him. He has the television on much of the time, although this is more for background noise, and he struggles to actually follow a movie or anything but very simple and brief television series.
Employability
5
He is markedly withdrawn and avoidant with substantial symptomatology of both anxiety and depression. His concentration is poor, and he is vulnerable to disruption into more serious disorder. He has not worked now for about two years and given his level of symptomatology and impairment will not be able to be employed in any capacity in the foreseeable future.
Score
Median Class
2
2
3
3
3
5
=3
Aggregate Score Impairment
Total WPI
22%
2+2
+3
+3
+3
+5
18
We adopt the report of Dr Blom.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 May 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W451/23 |
Applicant: | Mark Tibbey |
Respondent: | Central Coast Council |
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 Gerald Chew 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 | 12/10/22 - deemed | 11 | 22 | nil | 22 | |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
12
0