Tutton v Secretary, Department of Communities and Justice
[2021] NSWPICMP 11
•8 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tutton v Secretary, Department of Communities and Justice [2021] NSWPICMP 11 |
| APPELLANT: | Jimmie Tutton |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL: | Marshal Douglas Professor Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 8 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker suffered psychiatric injury; submitted AMS’s assessment of his impairment for several of the PIRS categories did not accord with evidence and was contrary to assessment of his IME; Appeal Panel held that AMS was entitled to give pre-eminence to his clinical observations of the appellant and the history he obtained at the time he assessed the appellant; AMS’s classifications of appellant’s impairment in the various PIRS categories was justified by AMS’s findings and history; MAC upheld. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 November 2020 Jimmie Tutton lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Graham Blom, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 3 November 2020.
The Appeal Panel observes that on 28 February 2021 the Workers Compensation Commission (WCC) ceased to be, and the Personal Injury Commission was established. In accordance with changes set out in Schedule 6 of the Personal Injury Commission Act 2020, an Approved Medical Specialist of the WCC is now known as a Medical Assessor and an Arbitrator is now known as a non-presidential Member. Given that at the time Dr Graham Blom issued the MAC he was an Approved Medical Specialist of the WCC, and bore the title Approved Medical Specialist, the Appeal Panel shall use the acronym AMS in these reasons refer to him.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines set out the practice and procedure in relation to the medical appeal process under s 328 of Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment in 2013 with the New South Wales State Government working as a youth worker with the Department of Justice (now the Department of Communities & Justice). His employer is the Secretary of that Department (the respondent).
The appellant was subjected to several incidents during the course of his employment that resulted in his suffering a psychiatric injury. On 6 March 2019 he consulted psychiatrist Dr Richa Rastogi, at the request of his solicitors, who in a report to his solicitors of the same date, advised that she had diagnosed the appellant’s injury to be an Adjustment Disorder with Mixed Depression Mood and Anxiety. Dr Rastogi also reported that she had assessed the appellant had 17% whole person impairment (WPI) from that injury.
The appellant’s solicitors on 21 June 2019 wrote to the respondent’s insurer advising it that the appellant claimed compensation from it under s66 of the Workers Compensation Act 1987 (the 1987 Act) for 17% WPI resulting from his injury. The appellant’s solicitors provided the insurer with a copy of Dr Rastogi’s report of 6 March 2019.
The respondent’s solicitors then organised for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht. That occurred on 12 August 2019. In a report to the respondent’s solicitors dated 16 September 2019, Dr Bisht advised that he had diagnosed the appellant’s injury also as Adjustment Disorder with Mixed Anxious and Depressed Mood. He reported however that he had assessed that the appellant’s permanent impairment from that injury was only 7% WPI.
On 18 August 2019 the insurer wrote to the appellant, care of his solicitors, and notified him, in accordance with s78 of the 1998 Act, that it disputed liability to pay him the compensation he claimed for 17% WPI resulting from his injury. The insurer advised the appellant that its reason for denying liability for his claim was that the degree of his permanent impairment resulting from his injury was less than 15% WPI which was lower than the statutory threshold imposed by s65A(3) of the 1987 Act. The insurer provided him with the report of Dr Bisht upon which it relied to support its position.
In August 2020 the respondent initiated proceeding in the WCC seeking a determination of his disputed claim for compensation. The matter was referred to Arbitrator Mr William Dalley, who on 2 September 2020 made the following direction with the consent of the parties:
“1. The claim pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar for referral to an Approved Medical Specialist to determine the degree of whole person impairment arising from psychological/psychiatric injury to the applicant deemed have occurred on 10 October 2017.
2. The applicant is willing and able to submit to examination by means of videoconference.
3. The material to be supplied to the Approved Medical Specialist should include:
a) the Application to Resolve a Dispute and attached material, and
b) Reply and attached material.”
On 4 September 2020 the WCC issued a referral to the AMS.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines.
Based on its preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because for reasons explained below, the Appeal Panel has come to the view that neither of the grounds of appeal on which the appellant relied is established. The Appeal Panel cannot therefore revoke the MAC, and its power to require the appellant to be re-examined is not enlivened.[1]
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The AMS’s examination of the appellant occurred on 26 October 2020 by means of zoom video conferencing. The AMS recorded the following within Part 4 of the MAC regarding the appellant’s present symptoms:
“Overall his mood has improved and generally he is not consistently down although when triggered his mood can drop. He said he is not as irritable and anxious as he previously was but feels he is much more volatile and easily triggered now than he was prior to his injury. He is particularly vulnerable to any mention of the events at Juvenile Justice.
His sleep has improved, he said but it is not back to normal. On a few nights a week
he will sometimes have difficulty getting off to sleep and more concerning for him is
that he regularly wakes in sweats. He did not do this prior to his injury.His motivation and energy have greatly improved over the last twelve months and he
is much more able to engage in activities. He spends time with children going to their
sporting fixtures however he is not as engaged as he previously was. His concentration is generally improved although he says he has occasional periods when he has ‘blanks’, by which he means difficulty in recalling or focusing. His capacity for pleasure is much improved as is his libido although again he says these are not back to normal. Whilst he is able to mix comfortably with his wife and children now he still tends to be somewhat withdrawn with any but the closest of friends. He tends not to like to socialise but does so with encouragement from his wife. He is more prone to anxiety when socialising. As mentioned his alcohol intake has returned to his pre-injury intake which is occasional and relatively light. His appetite has returned to normal. There is no feelings of worthlessness, self-criticism or suicidality currently.”The AMS, also within Part 4 of the MAC, recorded the following regarding the effect of the appellant’s injury on his social activities and activities of daily living
“Mr Tutton now showers himself and manages his own hygiene without any difficulties. As mentioned his appetite has returned to normal. He is able to help his wife with the household chores.
Mr Tutton remains somewhat anxious and avoidant of social interaction. He however
is aware that this is problematical for his family and with his wife’s encouragement he
does go out to dinner with her and the family and also occasionally visits his friends
with his family. As mentioned he does go to the children’s sport alone and enjoys this
although he is not actively involved and remains somewhat isolated from the others. He is able to drive without any difficulties both in the local area and longer distances when necessary.There is still occasional conflict and difficulties with his wife because of his
withdrawal and tendency to become more irritable than prior to his injury. His libido
remains reduced.Whilst he has started his new business he has trouble focusing and concentrating
and is somewhat slower than he normally would be in tasks requiring concentration
and focus.He is currently running his own business although not full-time. He says he would
devote approximately 25- 30 hours/week running the business.”
The AMS recorded his findings from his examination of the appellant in Part 5 of the MAC in these terms:
“Mr Tutton was seen via teleconference facility, Zoom Professional. He was alone in
the room. He presented as a slightly unshaven man although his hair was neatly
trimmed. He was neatly and tidily dressed. He appeared to be approximately normal
weight. He related with warmth although there was occasional irritability and
frustration quite evident when he began talking about events that occurred in Juvenile
Justice. On occasions I had to redirect him as he became increasingly frustrated and
resentful about what had happened and how unfair he felt that it was.He did not present at all as depressed. There was no evidence of suicidality.
As mentioned he was occasionally irritable and at times was clearly somewhat
stressed and anxious although he was able to manage this throughout the interview.
He managed to attend with focus through a one hour interview, and generally
maintained a reasonable coherent and chronological history.
There was no evidence of hallucinations, delusions or formal though disorder.
Mr Tutton appeared motivated to get well and presented as a reliable, honest and
forthright witness.There was no significant impact or evidence of cognitive impairment beyond the mild symptomatology that he described.”
The AMS, similar to Dr Rastogi and Dr Bisht, diagnosed that the appellant’s injury was Adjustment Disorder with Depressed Mood and Anxiety.
The AMS noted as part of his assessing the appellant’s permanent impairment from the appellant’s injury that the appellant had developed irritability, low mood as well as loss of motivation and energy and some sleep and appetite disturbance. The AMS noted that the appellant’s symptoms were “for a period” reasonably serious, but that the appellant had received psychiatric treatment, primarily in the form of cognitive behavioural psychological techniques and judicious use of sedative medications. The AMS recorded within both Part 7 and 10a of the MAC that as a consequence of that treatment and also the appellant’s own motivation there had been significant improvement in the appellant’s symptomatology. The AMS nevertheless noted that the appellant continued to have occasional recurrence of symptoms and had not completely recovered.
In accordance with [11.11] of the Guidelines the AMS assessed the consequences of the appellant’s injury within the several areas of functions specified within [11.11]. He recorded his classifications and his reasons for his classifications within Table 11.8 appended to the MAC. They were as follows:
Self Care and personal hygiene
1 Mr Tutton is able to manage his own personal
hygiene and self-care. He is eating reasonably well.Social and recreational activities 2 He has to be encouraged to go out to dinner with his wife and family or to attend functions with friends but is able to engage when he does go. He goes to his children’s sporting events which he enjoys but tends to remain somewhat withdrawn and is not as actively
involved as previously.Travel 1 He has no difficulty with travelling. Social functioning 2 He still tends to become more irritable than he
previously did and this causes some tension with his wife and children. This is made somewhat worse by his tendency to withdraw. His libido is reduced.Concentration, persistence and pace
2 He occasionally experiences blanking periods and is somewhat slowed up in his thinking and focus. Employability 2 He has started his own business but only works 25 - 30 hours/week. Whilst this business is not at all similar to his previous job the intellectual and demands are roughly qualitatively similar.
The AMS observed that the median of his classifications was 2 and that the aggregate of his scores was 10. The AMS noted that, in accordance with Table 11.7 of the Guidelines that median and aggregate correlated with 5% WPI. The AMS accordingly certified that the appellant’s permanent impairment from his injury was 5% WPI.
The AMS noted that his assessment of the appellant’s impairment differed from Dr Rastogi’s assessment, in that his classifications in the relevant functional areas differed from Dr Rastogi’s classifications in all but social functioning. The AMS further noted that Dr Rastogi’s examination, by reference to which Dr Rastogi had assessed the appellant’s impairment, was done in March 2019. The AMS expressed the view that the appellant “has clearly improved significantly since” Dr Rastogi’s assessment.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the AMS erred, such that the MAC contains a demonstrable error and made his assessment on the basis of incorrect criteria with respect to his classification of his impairment in the areas of “social and recreational activities”, “social functioning”, “concentration, persistence and pace” and “employability”:
With respect to the area of “social and recreational activities”, the appellant submits that Dr Rastogi noted that he had become reclusive and avoids social events and was socially withdrawn and isolated and not socially active. The appellant notes that Dr Rastogi had assessed his impairment in this area of function as being moderate. The appellant highlights that the AMS had noted he was not engaging as much as he had previously and is somewhat withdrawn with his closest friends and that there were times when he “blanks”, and the appellant submits, given that, the AMS ought to have assessed his impairment as being moderate in this area, rather than mild, as Dr Rastogi had done.
The appellant also submits that because his present symptoms include difficulty in getting to sleep and waking up in sweats and having occasional conflict and difficulties with his wife and having a tendency to become more irritable, the AMS was wrong to assess his impairment in the area of “social and recreational activities” as being mild.
With respect to “concentration, persistence and pace” the appellant highlights that his present symptoms include his mood dropping “when triggered”, being more volatile and more easily triggered than he was before his injury, being particularly vulnerable when juvenile justice is mentioned, being anxious and avoidant of social interactions, and having a reduced libido. The appellant submits that’s because of his having those symptoms, the AMS’s classification of his impairment as mild in the area of “concentration, persistence and pace” was wrong and the AMS ought to have classified his impairment as moderate.
With respect to the AMS’s classification of his impairment in the area of “employability”, the appellant submits that because his current symptoms include having trouble with focusing and concentration and being slower than normal in tasks requiring concentration and focus, and because he is not working in a fulltime capacity, the AMS erred by assessing his impairment in this area as being mild.
In reply, the respondent submits that the AMS’s assessment of the appellant’s permanent impairment accords with the history the AMS obtained. The respondent submits that the AMS’s assessments in the several areas of function the appellant challenges by his appeal accord with the respective descriptors provided in the Guidelines for the classifications that the AMS made of the appellant’s impairment in the respective areas.
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 Guidelines at [1.6] note that an assessment of “permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information”.
Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 at [23] (Ferguson) cited with approval the following passage at [33] from the decision of the Appeal Panel in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36:
“…the pre-eminence of the clinical observations cannot be understated. 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. …”
The Appeal Panel considers that it is apparent from the MAC that the AMS had regard to all relevant facts relating the appellant’s function following his injury. It is apparent that the AMS considered the histories Dr Rastogi and Dr Bisht had obtained when they examined the appellant and their respective findings, but the AMS gave pre-eminence to his clinical observations of the appellant and the history he obtained at the time he assessed the appellant. The AMS exercised his clinical judgment as to the significance of those matters when assessing the appellant’s permanent impairment from his injury. Consistent with what Campbell J held in Ferguson, the AMS was entitled to do that.
The AMS provided sound reasons, in the Appeal Panel’s view, for his classification of the appellant’s impairment in the relevant areas of function. The Appeal Panel considers that, based on the reasons the AMS provided in Table 11.8 his classifications of the appellant’s impairment in several areas of function that the appellant has challenged are justified. The reasons the AMS provided are supported by the history he obtained and his findings from examination, which indicate both the symptoms and impairment of the appellant arising from the injury have improved significantly since the appellant’s assessment by Dr Rastogi over 18 months previously, and even a little more since the assessment by Dr Bisht.
Harrison AsJ held in Glen William Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [66] that “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 a statutory sense”. The fact that Dr Rastogi assessed the appellant’s impairment in “social and recreation activities” differently from how the AMS assessed the appellant’s impairment in this area of function does not demonstrate error, and indeed as the AMS suggested, the difference between the two assessments is likely explained by improvement in the appellant’s condition in the time between the two assessments. Although the appellant did not in his submissions highlight that the AMS had assessed his impairment in other areas differently from Dr Rastogi, the Appeal Panel similarly considers the fact the AMS did so also does not demonstrate error in the MAC.
In summary, it is the Appeal Panel’s view that the AMS’s classifications of the appellant’s impairment in the several areas of function that the appellant has challenged by his appeal are justified by the reasons the AMS has provided. Further, in the Appeal Panel’s view, they accord with the appellant’s current functioning and symptomatology that the AMS has noted in the MAC. It is the Appeal Panel's opinion that, based on what the AMS outlined in Table 11.8 for his classification of the appellant’s impairment in Employability the appellant would fall on the cusp of class 2 (mild) and class 3 (moderate) impairment. Whilst other reasonable minds may have preferred to assess the appellant as moderately impaired the AMS’s rating of mild impairment on the basis of the appellant working nearly full-time, and more than 20 hours per week, as a self-employed businessman is not erroneous. For the Appeal Panel to substitute any classification with its own classification would be merely to substitute its opinion, which the Appeal Panel cannot do absent a demonstrable error.
The Appeal Panel cannot discern a demonstrable error in the MAC. The Appeal Panel considers that the AMS made the assessment based upon the correct criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 November 2020 should be confirmed.
[1] See NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.
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