Transdev Sydney Ferries Pty Ltd v Coe
[2024] NSWPICMP 19
•12 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Transdev Sydney Ferries Pty Ltd v Coe [2024] NSWPICMP 19 |
| APPELLANT: | Transdev Sydney Ferries Pty Ltd |
| RESPONDENT: | John Coe |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 12 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against assessment for psychiatric injury by employer; whether Medical Assessor (MA) had failed to consider relevant evidence; whether MA had erred in calculation of employability category of the psychiatric impairment rating scale; Held – employer submissions as to relevant evidence unsupported by evidence and based on speculation; MA plainly aware of evidence referred to; employability finding confirmed on evidence; Ferguson v State of New South Wales, Jenkins v Ambulance Service of New South Wales, and Glenn William Parker v Select Civil Pty Ltd considered; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 September 2023 Transdev Sydney Ferries Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 September 2023.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 28 June 2023 an amended referral was made by the President’s delegate to the Medical Assessor seeking a WPI assessment caused by a psychological/psychiatric disorder which occurred on 4 July 2020.
Mr Coe had been working for Sydney Ferries since 2013 as a Deck General Purpose Hand.
On 4 July 2020 he arrived on time to work as it was a Saturday and the trains were not running. It was expected that he would arrive early. He was humiliated and sworn at by the ferry engineer.
The next day he was replaced by another deck hand and moved to another vessel. He felt embarrassed and humiliated as he believed those at the workplace knew what had happened.
A factual investigation was carried out and a report was given on 4 September 2020.[1] It was established that there was a meeting three days later on Monday 7 July 2020.
[1] Appeal papers page 575.
The authors of the report stated:[2]
“At the meeting {Mr Coe} found out that a complaint had been made about him being late to work on 4 July 2020. The claimant explained to Windle and Stains that he was not late to work and recounted how he had been asked to come in early to work in his own time and that he had public transport issues and as such had only been able to present to work on-time. Stains defended the claimant at the meeting and advised Windle that members of the union should not be expected to present early for work in their own time. Windle accepted that same and accepted that the claimant had not been late for work and so deemed that the claimant had done nothing wrong. The claimant by his own account felt vindicated and 'so happy' at the end of the meeting.”
[2] Appeal papers page 575.
In his statement dated 27 March 2023 Mr Coe referred to this meeting in passing.
In any event the factual report related that after he had some accrued leave, Mr Coe decided he would make a formal grievance against the two members on 4 July who had humiliated him.
The report reads:
“Following the meeting the claimant decided that he wanted to make a formal grievance about the two members who had humiliated him on 4 July, engineer ‘Siad’ (actually spelt Sayed) and boat master Gary Fry. The claimant states that he spoke separately to ….. MUA secretary and …., Union Delegate about his intention to lodge the grievance. He states he was told that he could make a grievance about Fry but not 'Siad'. The claimant states that he was informed that 'Siad' was part of the union and as such no complaints were to be made against him. The claimant advised that he could not just make a complaint about Fry and not 'Siad', as 'Siad's' behaviour was equally as bad ….”
The factual report related that Mr Coe then decided that he would not make a complaint as he received assurances that the matter would be managed. In the event the union did not take any action on the matter so Mr Coe went ahead and lodged his grievance.
This resulted in his being called “dog” and “give up” and a “letter writer”. The report continued:[3]
“The claimant advises that because of his action of lodging the grievance and then arguing with people from the union on the telephone, people from the union stopped taking his calls and returning his calls. The claimant advised that about 70% of his contacts at the union started to ignore his calls. He advises that at the same time, he started receiving menacing telephone calls whereby when he answered the calls, the caller either hang up, said nothing and then hung up or called him a name such 'dog' and then hung up. The claimant advises that everyone who remained in contact with him told him that the gossip about him at the union was intense and it was unfavourable; and that he was viewed as a dog.”
[3] Appeal papers 576.
In a further report dated 21 September 2020[4] the authors interviewed a senior operations manager Ray Windle. The report stated that Windle provided a copy of Mr Coe’s grievance which was consistent with the information he had provided to the investigators.
[4] Appeal papers page 578.
At page 580 the investigator reports:
“Windle confirms that the names that the claimant alleges that he was called by the union in reference to wanting to pursue the grievance (give up, dog and letter writer) were all known phrases of the waterfront. He advises that being called a dog was particularly damning for a worker. Windle though did not know of the names of any persons from the union that had called the claimant such names; and stressed that information he had received about the claimant and the union had all been passed to him by others after they had themselves received such information second hand.”
Mr Coe went on rostered leave and was in contact with his union delegates who told him that he would receive an apology and return to his previous role. None of those things happened and the level of harassment reached the point where he ceased worked on 28 July 2020 and has not worked since.
In his statement Mr Coe said that before any meeting (presumably 7 July):[5]
“The union delegates approached me and stood over me asking ion after question without giving me time to answer. This was in front of other coworkers which caused humiliation”
[5] Appeal papers page 13.
Mr Coe told the Medical Assessor that he was a light drinker but he started drinking alcohol much more heavily after this incident and also smoking marijuana very heavily.
He was admitted as an inpatient into a drug and alcohol detox unit in 2021 but he has since relapsed.
In May 2023 he was incarcerated on assault and domestic violence charges, which he said occurred when he was intoxicated, he has not drunk alcohol or smoked marijuana since. He was released shortly before his assessment, and was due to return to court the following week.
The Medical Assessor assessed a 26% WPI from which he deducted 1/10th leaving a combined table value of 23%.
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 it was not necessary for the worker to undergo a further medical examination because no demonstrable error was found.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [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 employer submitted that the Medical Assessor had made a demonstrable error when assessing the WPI.
It also submitted that the Medical Assessor had failed to take into consideration the fact that Mr Coe had just been released from gaol and was in fact due to attend court the following week.
Thirdly the appellant employer submitted that there had been an error in the employment category in Psychiatric Impairment Rating Scale (PIRS) assessment.
THE MAC
At page 19 the Medical Assessor said:
“Mr Coe, who said he was previously a light drinker, started drinking alcohol much more heavily in mid-2020 after this incident at work. He was drinking alcohol on a daily basis at a quantity of 24 cans of beer or more than 14 cans of 6% mixed bourbon. He was also smoking marijuana heavily. He said that he was admitted to a drug and alcohol inpatient detox unit at Nepean Hospital for eight or nine days in 2021 but relapsed after that and started drinking alcohol heavily again. He was having drug and alcohol counselling and attending AA and NA. He said that he has not drunk alcohol or smoked marijuana since May 2023, when he entered prison on assault and domestic violence charges which he said occurred when he was intoxicated.”
Mr Coe was recently discharged from 3½ months in prison on remand. He was going to Court the week after this assessment. He said that he was in prison for a charge of assault on his wife’s boyfriend. He said this assault occurred when he was intoxicated with alcohol.”
At [7] the Medical Assessor gave his summary:
“• summary of injuries and diagnoses:
Mr Coe has the psychiatric conditions of Major Depressive Disorder, Panic Disorder, Agoraphobia and Alcohol Use Disorder in early remission according to DSM-5 diagnostic criteria. All these conditions arose as a result of work-related stresses that Mr Coe experienced in 2020 whilst he was working as a deckhand for Sydney Ferries.
consistency of presentation.
Mr Coe was consistent in the presentation of his history and symptoms. He did not appear to be exaggerating or minimising his clinical condition.”
At [10c] the template for the MAC states:
“c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.”
With regard to the PIRS category of employment, the Medical Assessor said:[6]
“…..Dr Rastogi rated Mr Coe a Class 3 for Employability whereas I have rated him Class 5. I rated Mr Coe a Class 5 because the severity of his psychological symptoms including his severely depressed mood, frequent suicidal ideation, high levels of anxiety and agoraphobic avoidance of leaving his home prevent him from working at all.”
[6] Appeal papers page 23.
In his PIRS Table, the Medical Assessor gave the following reasons:[7]
“Totally impaired. In my opinion, Mr Coe cannot work at all because of the severity of his psychological symptoms including his severely depressed mood, frequent suicidal ideation, severe anxiety and agoraphobic avoidance of leaving his home. I note that he has not worked at all since July 2020.”
SUBMISSIONS
[7] Appeal papers page 28.
Appellant employer
The appellant employer noted that the Medical Assessor had recorded a history that Mr Coe had been recently discharged after three and a half months in remand. It was submitted that the Medical Assessor had failed to consider how the factors of incarceration and indeed Mr Coe’s actions which led to his incarceration, (the assault of his wife’s boyfriend whilst intoxicated) might have “affected the assessment of the claimant’s mental health/psychiatric injury and/or exacerbated his symptoms, particularly given he was released from prison just prior to the examination.”
Secondly the appellant employer submitted that the Medical Assessor failed to take into account the fact that Mr Coe was due to attend court the following week after the examination by the Medical Assessor, and particularly to consider how this upcoming event might have affected Mr Coe’s presentation on the day of assessment.
Thirdly the appellant employer submitted that the Medical Assessor’s rating of Mr Coe’s employability as class 5 (totally impaired) failed to address the evidence before him, namely the clinical notes from Mr Coe’s general practitioner which certified that Mr Coe was “looking for alternative jobs” on seven occasions between 8 February 2022 and 2 March 2023.
The appellant employer submitted that the MAC should accordingly by revoked and a fresh MAC issued “and for the claim to be redetermined”.
No re-examination was sought by the appellant employer, but it may be that it was in fact seeking a re-examination in view of the order sought that the assessment be redetermined.
Mr Coe
Mr Coe referred to the various references made by the Medical Assessor to his recent difficulties with the law which we have reproduced above.
It was clear that the Medical Assessor had a full history of those recent events and that they had not exacerbated his symptoms, it was submitted.
Mr Coe referred to the Medical Assessor’s reasons finding him to be totally impaired in the employment category of the PIRS, which we have also reproduced above.
Mr Coe kindly listed a schedule of the work certificates issued by his GP between 31 July 2020 and 3 June 2023 – a total of 43. He argued that he had been certified as having no work capacity in all of the certificates except seven, which certified an ability to do limited hours of suitable duties -usually between 12 and 15 hours. These were dated various dates between 18 May 2021 and 19 November 2021 with one period between 11 February and 11 March 2022.
After that date there were a further 18 certificates up to 3 June 2023 that certify that Mr Coe has no current work capacity.
DISCUSSION
The Psychiatric Impairment Rating Scale (PIRS)
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[8] 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.”
[8] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[9].
[9] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[10] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said 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].”
[10] [2017] NSWSC 887.
In Glenn William Parker v Select Civil Pty Ltd,[11] another case regarding assessment of psychiatric disorder, Harrison AsJ cited at [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])…..”
[11] [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.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a. if the categorisation was glaringly improbable;
b. if it could be demonstrated that the AMS was unaware of significant factual matters;
c. if a clear misunderstanding could be demonstrated; or
d. if an unsupportable reasoning process could be made out.
There has been no submission that the Medical Assessor was unaware of the significant factual matters relied on the appellant employer – indeed such awareness was conceded. Thus the effect of the submission was that the Medical Assessor had “failed to consider” the effect of the assault and imprisonment in his assessment, in as much as they were more or less contemporaneous with his assessment of Mr Coe on 23 August 2023. This same argument was pressed with regard to Mr Coe’s upcoming court appearance, which was to occur the week following.
There is, of course, no evidence to support these submissions. The appellant employer’s concession that the Medical Assessor was aware of these facts is an indication that, to the contrary, he did consider them. We were not alerted to any inconsistency in the Medical Assessor’s reasoning, which we found to be exemplary.
The logic of the appellant employer’s submissions seemed to be that these facts were of such significance that, had the Medical Assessor properly reflected on them, he would have been compelled to find that Mr Coe’s presentation had been affected by his recent troubles with the law. Such a hypothesis is simply speculation.
The Medical Assessor was in full possession of all the relevant facts. He noted that Mr Coe’s conviction had been caused when he had been under the influence of alcohol, and that one of the diagnoses of Mr Coe’s injury was an alcohol use disorder. The Medical Assessor was aware that Mr Coe had been working on the ferries for seven years when he suffered his injury, and that he did not have such a disorder at that time. He noted that Mr Coe had been relatively stable for 12 months. The appellant employer could not point to any specific comment made within the Medical Assessor’s reasons that would have generated any suspicion that Mr Coe’s presentation was inconsistent with the assessment, beyond a simple recital of the facts regarding the offence, the incarceration, and the upcoming court attendance. The Medical Assessor was careful to note Mr Coe’s presentation, saying it was consistent with his history and symptoms, and that he did not appear to exaggerate his clinical condition.
The history of Mr Coe’s injury is that he had been working effectively since 2013 doing a job that he said on a number of occasions he loved doing. He was significantly disturbed by not only losing his job but the manner in which it occurred. The shock of his encounters with the union, and to a lesser extent with the employer, was the cause of his accelerated intake of alcohol and his use of other drugs such as marijuana.
The evidence is that Mr Coe was so upset that he was becoming intoxicated and ringing members of the union and alienating himself further from his previously socially agreeable workplace. We are satisfied that it was Mr Coe’s slide into alcohol dependency which led to the criminal charges against him were thus attributable to the injury he suffered.
The Medical Assessor’s comments when considering the category of Social Functioning is further evidence, if such were needed, of his awareness of Mr Coe’s recent history:[12]
“Moderate impairment. Mr Coe has been separated from his wife since January 2023 due to aggression related to alcohol intoxication. Assault and domestic violence incidents have occurred and he has spent time in prison on remand.”
[12] Appeal papers page 27.
We find the assessment of employability to be made after due consideration of the relevant evidence. The schedule compiled by Mr Coe of his Workcover certification from the GP is consistent with a Class 5 rating for this category. We note in any event that the opinion of a Medical Assessor in assessing WPI is not necessarily compatible with the calculation of an injured worker’s capacity to earn in a claim before the Commission for weekly compensation.
We further adopt the Medical Assessor’s reasons for not accepting the view of Dr Rastogi. Although she certified a Class 3 rating regarding Mr Coe’s employability, which was inconsistent with her opinion of the same date that:[13]
“He is totally incapacitated since the [accident] till date and will need vocational assessment regarding his future capacity in a less stressful work environment with rehabilitation.”
[13] Appeal papers page 100.
For these reasons, the Appeal Panel has determined that the MAC issued on
4 September 2023 should be confirmed.
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