Towney v Secretary, Department of Communities and Justice (Corrective Services)
[2024] NSWPICMP 368
•6 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Towney v Secretary, Department of Communities and Justice (Corrective Services) [2024] NSWPICMP 368 |
| APPELLANT: | Cecil Towney |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 6 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) correctly applied the Guidelines, including chapters 1 and 2 of AMA5; whether MA made correct diagnosis; whether MA’s ratings of appellant’s impairment in self-care and personal hygiene, social functioning, concentration persistence and pace correct; MA did not abide paragraph 11.4 of the Guidelines in that he did not specify the diagnostic criteria by which he made his diagnosis, but otherwise MA correctly applied the correct criteria in making his assessment; the failure of the MA not to specify diagnostic criteria did not make a difference to outcome; discussion of the relevance of diagnosis to assessment of impairment; Held – MA made no error with respect to ratings of appellant’s impairment in challenged Psychiatric Impairment Rating Scale; Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 March 2024 Cecil Towney, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
12 February 2024.The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant worked for the New South Wales Government between July 2010 and
April 2016 for what was then known as the Department of Family and Community Services, but which is now known as the Department of Communities and Justice. In accordance with s 26(1) and Part 2 of Schedule 1 of the Government Services Employment Act 2013, the Secretary of that department, was the employer of the appellant.The appellant suffered a psychological injury as a consequence of his employment. He claimed compensation from the respondent’s insurer for permanent impairment from his injury. He relied on a report of psychiatrist Dr Thomas Oldtree Clark dated 26 August 2020 to support his claim. Dr Clark had examined the appellant on 25 August 2020 and in his report advised he had diagnosed the appellant’s injury as persistent depressive disorder and that he had assessed the appellant’s degree of permanent impairment from his injury was 15% whole person impairment (WPI).
To respond to the appellant’s claim for compensation, the respondent’s solicitors arranged for the appellant to be examined by psychiatrist Dr Samuel Lim on 30 October 2020. On
31 October 2020 Dr Lim provided a report in which he advised his diagnosis of the appellant’s injury was an adjustment disorder. Dr Lim further advised that the appellant’s injury was predominantly caused by events relating to a performance management plan the appellant was required to undertake. Dr Lim also advised that he assessed the degree of the appellant’s permanent impairment from his injury was 1% WPI.Relying on that report of Dr Lim, the respondent’s insurer issued notices to the appellant under s 78 of the 1998 Act on 21 December 2020 and again on 22 February 2021 in which it advised him it denied liability for his claim for compensation. It advised its reasons for denying liability was that it considered his injury was wholly or predominantly caused by reasonable “management action” taken by its insured in respect of performance appraisal, which disentitled him to compensation in accordance to s11A of the Workers Compensation Act 1987 (the 1987 Act). As an alternative, it denied his claim on the basis that the degree of his permanent impairment from his injury was not at least 15% which it was required to be by s 65A(3) of the 1987 Act for him to be entitled to compensation for permanent impairment. It advised him that it relied upon the report of Dr Lim.
The appellant subsequently instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. The matter was referred to a Commission Member, namely Mr Cameron Burge, who conducted an arbitration on
27 September 2023 to determine the dispute between the parties regarding whether the appellant’s injury was wholly or predominantly caused by reasonable action of the respondent with respect to performance appraisal.On 3 September 2023 Member Burge found that the appellant’s injury was not wholly or predominantly caused by reasonable action of the respondent in relation to performance appraisal. He directed the matter be remitted to the President of the Commission for referral to a Medical Assessor to determine the degree of the appellant’s permanent impairment from his injury. That was duly done by a delegate of the President.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor detailed in the MAC the circumstances that gave rise to the appellant’s injury. The Medical Assessor recorded that the appellant described he had low self-esteem since suffering his injury and felt “less of a man”. The Medical Assessor recorded that the appellant’s mood is generally good. The Medical Assessor recorded that the appellant described feeling fatigued much of the time and that his concentration was not as good which he attributed as being due to his worries.
The Medical Assessor noted that the appellant smokes cannabis daily and that this relaxes him. The Medical Assessor noted that for approximately three years the appellant had not taken any prescribed medication for a mental health problem and had not had any psychological or specific treatment for mental health problems for several years.
The Medical Assessor recorded that from his mental state examination of the appellant he found that the appellant managed the interview well and communicated clearly with normal speech and that his affect was appropriately reactive depending on the material under discussion. The Medical Assessor recorded that the appellant was a little tearful when discussing matters about his employment but that his affect would brighten when discussing positive things such as his grandchildren. The Medical Assessor observed that the appellant’s mood was euthymic. The Medical Assessor recorded that the appellant was fully alert and orientated at the interview and appeared grossly cognitively normal.
The Medical Assessor at Part 7 of the MAC provided the following summary of the appellant’s injury and his diagnosis of it:
“Mr Towney is a 58-year-old married father of three children and nine grandchildren. He developed psychological symptoms including low mood, increased anxiety, sleep
disturbance and low self-esteem in the context of difficulties in his workplace, particularly the relationship with his manager and 2014 and 2015. Despite moving on from this workplace in April 2016 he continues to have a number of symptoms consistent with a chronic adjustment disorder with anxiety. The difficulty with adjustment is to the long term effect on his self-esteem which was adversely affected in the workplace during 2014 and 2015.”
The Medical Assessor assessed the appellant’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), as detailed paragraphs 11.11 and 11.12 of the Guidelines. The Medical Assessor rated the appellant’s impairment in self-care and personal hygiene as Class 1, in social and recreational activities as Class 1, in travel as Class 1, in social functioning as Class 2, in concentration, persistence and pace (CPP) as Class 2, and in employability as Class 2. The Medical Assessor observed the median of his class scores is 2 and the aggregate is 9, which accorded with 4% WPI. The Medical Assessor certified he assessed this is the degree of the appellant’s permanent impairment from his injury.
The appellant in his appeal against the MAC has challenged the Medical Assessor’s ratings of his impairment in self-care and personal hygiene, social functioning and CPP. The Medical Assessor provided the following reasons in the PIRS rating form in the MAC for rating the appellant’s impairment in self-care and personal hygiene as Class 1:
“Mr Towney describes no significant deficit in his ability to self-care and attend to his personal hygiene. He dresses each day for work and on return will shower and change clothes. He cooks meals for himself and can provide care as necessary to his grandchildren.” Mr Towney meets with several friends each weekend at a local club. He enjoys watching rugby league either on television or by attending local matches.
The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in social functioning as Class 2:
“Mr Towney has had long-standing difficulties in the relationship with his wife.
There have been periods of separation and Mr Towney is again currently contemplating living elsewhere for a while due to the tensions in the marital relationship. Some of the impaired relationship is due to his lowered self-esteem. He can maintain positive relationships with wider family members, his children and grandchildren. He has a number of friends that he meets with regularly.”
The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in CPP as Class 2:
“Mr Towney is able to work full-time. He notices that his concentration can be impaired by anxious cognitions though is able to focus attention for periods of up to 30 minutes if necessary. His attention at interview appears unimpaired, and he was able to problem solve a technical problem during the interview.”
The Medical Assessor compared the assessment he made with the assessment
Dr Clark had made. The Medical Assessor observed that Dr Clark provided a diagnosis of persistent depressive disorder. The Medical Assessor said he found the appellant did not now meet the diagnostic criteria for persistent depressive disorder. The Medical Assessor also observed that at the time Dr Clark had assessed the appellant, the appellant was in a worse social and family situation and was not working.The Medical Assessor also compared his assessment with the assessment Dr Lim had undertaken. The Medical Assessor observed that Dr Lim had diagnosed the appellant’s injury as adjustment disorder and the Medical Assessor agreed with that.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor made “several decisions pertaining to the appellant’s psychiatric diagnosis and permanent impairment without appropriate reference and application to chapters 1 and 2 of the American Association Guides to the Evaluation of Permanent Impairment (5th Edition)”. The appellant did not specify what specific part or criteria of Chapters 1 and 2 of AMA5 the Medical Assessor failed to refer.
The appellant submitted the Medical Assessor failed to comply with paragraph 11.4 of the Guidelines in that the Medical Assessor did not specify the diagnostic criteria by which he made a diagnosis of his injury. The appellant submitted the Medical Assessor’s failure to do that resulted in the Medical Assessor incorrectly diagnosing him. The appellant submitted that the Medical Assessor did not address why he did not meet the criteria for mental disorder other than adjustment disorder with anxiety.
The appellant submitted that the Medical Assessor dismissed without providing reasons why his symptoms did not align with the criteria for a diagnosis of major depressive disorder or persistent depressive disorder. The appellant submitted that had the Medical Assessor applied the relevant diagnostic criteria of DSM-5 the Medical Assessor would have identified that a diagnosis of adjustment disorder is inconsistent with his symptoms and a diagnosis of persistent depressive disorder, as made by Dr Clark, was more compatible with his symptoms.
The appellant submitted that the Medical Assessor’s assessment that he has 4% WPI does not align with his having symptoms of anxiety and to his having low mood and persistent symptoms of low and reduced self-esteem and excessively worrying. The appellant submitted that the assessment did not align with a deterioration of his relationship with his wife and other family members. The appellant submitted that the assessment did not align with his having persistent fatigue and having poor concentration.
In reply, the respondent submitted that the issue of the diagnosis of the appellant’s psychiatric condition was not at issue in the proceedings in the Commission between the parties. The respondent submitted that the Medical Assessor noted that the diagnostic criteria for the diagnosis that Dr Clark made was not met with respect to the appellant at the time of assessment.
The respondent submitted that the Medical Assessor’s ratings of the appellant’s impairment in social and recreational activities, social functioning and CPP was based on the evidence before the Medical Assessor.
The respondent submitted that the appellant’s contention that the Medical Assessor based his assessment on the incorrect criteria is not made out.
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.
The appellant did not specify how the Medical Assessor failed to apply any instruction within Chapters 1 and 2 of AMA5. The instructions within those chapters, broadly speaking, provide general guidance regarding basic matters relating to an assessment of impairment. Chapter 11 of the Guidelines requires a Medical Assessor to be familiar with the content of those chapters when assessing the degree of permanent impairment of a worker from a psychiatric injury. The Medical Assessor, on the Appeal Panel’s analysis of the MAC, has not done anything inconsistent with what is contained within those chapters.
The appellant’s submission regarding paragraph 11.4 of the Guidelines is correct. That is, this paragraph requires a Medical Assessor to specify in the MAC the diagnostic criteria by which the Medical Assessor has made a diagnosis. The Medical Assessor did not do that in this case. It is apparent to the Appeal Panel however that the diagnostic criteria upon which the Medical Assessor relied to make his diagnosis of chronic adjustment disorder with anxiety was the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). Consequently, the Medical Assessor has not made his assessment based on incorrect criteria. Further, whilst the Medical Assessor erred by not specifying in the MAC the criteria by which he made his diagnosis, that error is immaterial in that it does not, of itself, change the outcome in this matter.
It is necessary that a Medical Assessor make a diagnosis of a worker’s work injury, so as to abide the instruction of paragraph 11.4 of the Guidelines, but what is critical with respect to the assessment of a worker’s impairment from a psychiatric injury is the effect the injury has on the worker’s functioning. Different clinicians may arrive at different diagnoses, and this may be merely an expression of opinion on which reasonable minds might differ. It may also be due to a misapplication of diagnostic criteria. The role of the Medical Assessor however is, having made a diagnosis or diagnoses, to assess the impairment that results from the injury based on how the worker functions. They are different things and the impairment level is not a function of diagnosis.
Saying that somewhat differently, whether the Medical Assessor could have made a different diagnosis of the appellant’s injury did not affect his assessment of the appellant’s permanent impairment from his injury because, as is required by paragraphs 11.11 and 11.12 of the Guidelines, the appellant’s impairment from his injury was determined by reference to how seriously impaired the appellant’s function was as a consequence of his injury in the six categories of activity and conduct comprising the PIRS. Whether the Medical Assessor could have made a different diagnosis of the appellant’s injury did not affect that.
The Appeal Panel notes that at the time of assessment the appellant reported that his mood was good. He reported he worries and that his concentration is not as good as it was prior to his injury. The Appeal Panel, which is an expert panel, considers these symptoms are of borderline clinical significance, and that based on the criteria of DSM-5 the diagnosis the Appeal Panel would make is persistent depressive disorder in partial remission. The diagnosis Dr Clark made some two and a half years ago of persistent depressive disorder could not be made at the time the Medical Assessor examined the appellant because the appellant did not then have a depressive disorder. It was in remission. The appellant’s illness was more serious some years ago but his symptoms have now resolved such that they now have borderline clinical significance. His presentation some years ago, that allowed a diagnosis Dr Clarke then made, is not the same now such that the same diagnosis that can now be made.
The Appeal Panel, having offered an alternative diagnosis than the Medical Assessor, does not however consider the Medical Assessor’s diagnosis was wrong. It merely reflects a difference of opinion. It was open to the Medical Assessor, based on what he set out in the MAC, to conclude that criteria A-E of DSM-5 for a diagnosis of adjustment disorder were met in this matter. In any event, given that the Medical Assessor rated the appellant’s impairment by reference to PIRS, the fact that alternate diagnoses were available, does not, of itself, affect the outcome in this matter.
The Appeal Panel discerns no error with respect to the Medical Assessor’s rating of the appellant’s impairment in social and recreational activities. The descriptors provided in Table 11.1 for a Class 1 rating for social and recreational activities are:
“No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.”
The descriptors provided for a Class 2 impairment are:
“Mild impairment: occasionally goes out to such events and without a support person, but does not become actively involved (e.g. Dancing, cheering favourite team).”
The Medical Assessor rated the appellant’s impairment as Class 1 and explained that the appellant meets every weekend at a local club with several friends. The Medical Assessor explained that the appellant also enjoys watching rugby league on television and also attends local matches. Within the body of the MAC the Medical Assessor also recorded that the appellant enjoys a number of things, including spending time with friends. In the Appeal Panel’s view this correlates with a level of impairment described by the descriptors for a Class 1 impairment. It does not match an impairment described by the descriptors for a Class 2 impairment. The appellant regularly goes to social events, rather than occasionally. The appellant indicated to the Medical Assessor that he gets involved in the events to which he goes.
The descriptors provided in Table 11.4 of the Guidelines for a Class 2 impairment in social functioning are:
“Mild impairment: existing relationship strained. Tension and arguments with partner or close family member, loss of friendships.”
The descriptors provided for a Class 3 impairment are:
“Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Medical Assessor rated the appellant’s impairment as Class 2. The Medical Assessor’s explanation included that the appellant is contemplating moving away from his wife because of tensions in their marital relationship. The impaired relationship between the appellant and his wife is due to his lower self-esteem. The appellant’s lower self-esteem is a consequence of his psychological injury. Given that, the Appeal Panel considers that the Medical Assessor was wrong not to rate the appellant’s impairment in social functioning as Class 3. The fact that the appellant is contemplating moving away from his wife reveals severe strain in their established relationship. That equates with a Class 3 impairment.
The descriptors provided in Table 11.5 for a Class 2 impairment for CPP are:
“Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding task for periods of up to 30 minutes, then feels fatigued or develops headache.”
The descriptors provided for a Class 3 impairment are:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans) make significant repairs to motor vehicles, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Appeal Panel discerns no error with the Medical Assessor’s rating of the appellant’s impairment in CPP as Class 2. The Medical Assessor’s reasoning for his rating included that the appellant’s attention at interview was unimpaired and that he was able to solve a technical problem during the interview. The Medical Assessor’s reasoning also included that the appellant reported his concentration can be impaired due to his anxiety but he is able to focus for periods of up to 30 minutes if required. The Medical Assessor explained that the appellant is working full time. The Medical Assessor’s reference to that when rating the appellant’s impairment in CPP was to consider the conduct of the appellant to concentrate and to persist with activities. Hence the appellant working full time, insofar as it involved conduct of concentration and persistence, was relevant to the rating of the appellant’s impairment in CPP. The appellant having the capacity to concentrate and persist with tasks so as to able to work full time indicates he has a mild impairment in CPP.
Because the Appeal Panel has found that the Medical Assessor did make an error with respect to his rating of the appellant’s impairment in social functioning, the Appeal Panel must correct that error. It does so by rating the appellant’s impairment as Class 3. That makes no difference to the median class of the appellant’s scores, but increases the aggregate score to 10 which converts to 5% WPI in accordance with Table 11.7 of the Guidelines. The Appeal Panel assesses the degree of the appellant’s permanent impairment to be that.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5339/23 |
Applicant: | Cecil Towney |
Respondent: | Secretary, Department of Communities and Justice |
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 Alan Doris 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) |
| Psychiatric/ psychological disorder | 28/10/2018 | Chapter 11 | Chapters 1 and 2 | 5% | - | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 5% | |||||
0