West v Allambi Care Limited
[2022] NSWPICMP 79
•7 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | West v Allambi Care Limited [2022] NSWPICMP 79 |
| APPELLANT: | Vicki Sheree West |
| RESPONDENT: | Allambi Care Limited |
| APPEAL PANEL: | Member Paul Sweeney Dr Michael Hong Dr Patrick Morris |
| DATE OF DECISION: | 7 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker appeals from assignment of classes in Psychiatric Impairment Rating Scale categories (PIRS) of Travel, Social functioning, and Concentration; relies on post Medical Assessment Certificate (MAC) statement to support argument that MA did not make enquiries or did not record her answers relevant to these categories during his consultation; Pitsonis v Registrar of the Workers Compensation Commission & Anor and Lukacevic v Coates Hire Operation Pty Ltd considered; Held- that in the circumstances the post MAC statement of the worker should not be admitted; on analysis of the PIRS categories Medical Appeal Panel (MAP) finds error in respect of classification of Travel; otherwise no demonstrable error. MAC revoked and new MAC issued to reflect the MAP’s determination in respect of Travel. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 May 2021, Vicki Sheree West (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Bench, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 May 2021.
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 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 the PIC Rules.
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 was formerly employed by Allambi Care Limited (the respondent) as a full-time case worker between 2010 and 2018. In the course of her employment she was required to provide support services to families with children some of whom had been physically and sexually abused. Towards the end of her employment, a child of a family with whom she was working hanged himself. At times, she was threatened with physical violence by members of her client families. She developed a psychological condition in response to these events.
The appellant first experienced psychological problems in 2014. She sought psychological treatment and returned to her employment. In 2018, her psychological condition deteriorated. She has not worked since June 2018. It is common ground that the appellant suffered a psychological injury in the course of her employment as a case worker.
Since the cessation of her employment, the appellant has had two in-patient admissions to Warners Bay Private Hospital for treatment of her injury. She has been referred to psychologists and psychiatrists for treatment by her general practitioners. She initially saw
Dr Stuart Saker, a specialist psychiatrist and for the past several years, Dr Bhandari. She has been diagnosed with post-traumatic stress disorder.The respondent has paid the appellant weekly compensation and met her medical and hospital expenses in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act). By these proceedings, she claims permanent impairment compensation pursuant to s 66 of that Act.
On 28 October 2020, the appellant saw Dr Martin Allan, consultant psychiatrist at the request of her solicitor. Dr Allan provided a report dated 29 October 2020 by which he diagnosed post-traumatic stress disorder and major depressive disorder. He assessed the appellant’s permanent impairment in accordance with the Psychiatric Impairment Rating Scale (PIRS) contained in Chapter 11 of the Guidelines. Dr Allan expressed the opinion that the appellant suffered 24% whole person impairment (WPI) as a result of her psychiatric injury.
As the respondent did not accept Dr Allan’s assessment of WPI, a delegate of the President referred the medical dispute to a Medical Assessor to certify the degree of permanent impairment suffered by the appellant as a result of her injury. On 22 April 2021, Dr Bench certified that the appellant suffered 18% WPI. It is from that assessment that the appellant appeals.
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 PIC Rules.
As a result of that preliminary review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that the appellant sought a re-examination by a member of the panel. However, after analysing the grounds of appeal, the panel concluded that a further examination of the worker would not assist in determining the issues in dispute.
The appeal turned on the class which should be assigned to 3 categories in the PIRS. In respect of one of them, Travel, the panel concluded there was an error which could be readily corrected without examination. Otherwise, the panel could find no error in the manner in which the MA assigned classes. He had not misdirected himself and there was ample evidence to support his findings. It would be inappropriate to embark on a further examination merely to probe for potential error.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA 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 MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full, but have been considered by the appeal panel.
In summary, the appellant submitted that the MA had erred in assessing the PIRS categories of Travel, Concentration, persistence and pace and Social functioning. The appellant argued that in each case the MA should have assigned one class higher than appeared in the relevant Table in the MAC.
In respect of Travel, the appellant asserted that her “travel to visit her family is familiar travel to her”. She was otherwise unable to travel independently or to new environments. Accordingly, the MA should have assigned Class 2 rather than Class 1.
In respect of Concentration, persistence and pace the appellant asserts that the MA “failed to properly enquire of the worker in relation to this category”. On the basis of the attached notes subsequently made by the appellant of her consultation with the MA, it is asserted that the “evidence of the worker best satisfied the requirements of a Class 3 or moderate impairment”.
In respect of Social functioning, the appellant again asserts that the MA “failed to properly enquire of the worker in respect of the category”. Accordingly, it is asserted that he had not received “the evidence of the worker required to properly determine the appropriate category of impairment”. The submission continued that the evidence of the worker “best satisfied the requirements of Class 4 or severe impairment”.
In respect of each category/scale the appellant alleges that if the MA had obtained an accurate history (i.e. one consistent with the appellant’s account in an attached commentary on the MAC) he would have reached a different conclusion in relation to classification.
The respondent submitted that as there was no evidence that the examination by the MA was “in any way materially defective” it should be dealt with “on the papers” and dismissed. There was no proper basis for a further medical examination.
The respondent observed that the appellant had served and relied on a commentary on the MAC prepared by her following the assessment. It also observed that the appellant did not formally rely on s 327(3)(b) which permits the admission into evidence before the appeal panel of relevant additional information in certain circumstances.
The respondent then argues that the appellant’s written document does not constitute “additional relevant information”. It refers to a number of authorities which have addressed that phrase including Petrovic v BC Serv No 14 Pty Ltd & Ors [2007] NSWSC 11546 (Petrovic), Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 (Pitsonis) and Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 (Lukacevic). It submitted that the additional unsigned notes/statement of the appellant should not be received into evidence. It then addressed each of the PIRS categories.
In respect of Travel it submitted that the evidence suggested that the appellant was able to travel outside of “her local, familiar area independently”.
In respect of Concentration, persistence and pace the respondent referred to aspects of the clinical history recorded by Dr Payne, the appellant’s general practitioner, and
Ms Sophie Langford, the appellants treating psychologist. It submitted that there was ample evidence to support the finding of the MA.In respect of Social functioning, the respondent again refers to aspects of the clinical record which supports the finding of the MA that the appellant should be classified as Class 3. In summary, it argued that the conclusions reached by the MA were clearly available to him based on the evidence adduced in the proceedings and the content of his examination.
DISCUSSION AND FINDINGS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284, the Court of Appeal held that the appeal panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot, it was said that:
“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 give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Additional Information
The appellant acknowledges that her submissions are partly based on her undated commentary on the MAC headed “Dr Bench Report 04.05.2021”. It commences with an assertion that she asked Dr Bench to “slow down” but that did not occur. There is then a general commentary on her present mental health relevant to the PIRS categories of Social functioning and Concentration, persistence and pace. The appellant also makes several specific criticisms of the assessment consultation and the MAC. On some occasions, she states, Dr Bench misstated information that she provided. On other occasions, he only recorded part of a sentence that constituted her answer. In respect of Concentration, persistence and pace she states that there was “no extended talk around this topic”:
“I told Dr Bench I did the groups and how long they went for and I feel they do more harm than good. He did not ask how I managed during the groups. This is another assumption! I was so confused by his questioning tactics and did not elaborate further.”
The appellant then goes on to describe the nature of these groups. She compares the course content of the groups to “kindergarten”. She says that she doesn’t learn anything or pay attention during the meetings. The appellant states that she has taken two days to prepare the critique of Dr Bench’s report “with many breaks needed and left very fatigued”.
Although it is not specifically referred to by the appellant, s 327(3)(b) of the 1998 Act provides that fresh evidence or evidence additional to or in substitution for the evidence received in relation to a medical assessment may not be given on appeal unless the evidence was “not available to the parties before the medical assessment and could not reasonably have been obtained by the parties before that medical assessment”.
It is true, as the respondent concedes, that the appellant’s specific criticisms of the MA were not available before the assessment. They turn on her recollection of what occurred during the assessment. On the other hand, all of the evidence in her memorandum which addresses her present mental state was known to her prior to the medical examination. It was open to the appellant to furnish a statement, prepared by her solicitor, setting out in as much detail as necessary the effect of the psychological injury on her mental state and her functioning in respect of the various categories in the PIRS scale.
Rather than lodge a comprehensive statement, the appellant chose to provide a four-paragraph document which merely adopts the history and opinion of her qualified psychiatrist.
The panel doubts the relevance of the information conveyed by the worker in her statement. Where it conflicts with the MAC it may not be entirely reliable. It will be a rare case in which the recollection of a worker some weeks after a medical assessment will prove to be more reliable than the written record of the medical history, clinical findings, and assessment of WPI contained in the MAC. More so, in a case where the MA has set out the history and his findings with great clarity.
The primary purpose of the statement is apparently to persuade the panel that the MA failed to “properly enquire” as to the history in the categories of Social functioning and Concentration, persistence and pace and to either accept the revised or additional history contained in the MAC or, alternatively embark on a re-examination of the appellant.
In Pitsonis, the Court of Appeal said at [59]:
“Those dependent on the applicant showing that the doctor failed to record or to correctly record things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about the factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”
For the reasons given in Lukacevic and Pitsonis, the panel has concluded that it should not accept the appellant’s written document as additional relevant material in the circumstances of this case. The respondent objects to its admission. The appellant has not argued that it is fresh evidence that is admissible pursuant to s 327 (3) (b) in its submissions or that there is any proper basis for its admission.
The panel then turns to the appellant’s specific criticisms of the MAC in the categories of Travel, Social functioning and Concentration, persistence and pace.
Travel
In his Table 11.8: PIRS Rating form the MA gave the following reasons for assigning Class 1:
“The applicant noted the furtherest she has travelled on an independent basis in recent times is a 60-minute trip from Floraville to Medowie, a trip of approximately 60 minutes. She has recently visited her father in Laurieton with her sister. Given the applicant is able to travel up to 60 minutes independently, such is most consistent with a minor deficit attributable to normal variation in general population.”
Earlier in the MAC, the MA recorded that the appellant was “close to her brother and sister, who both live in Medowie”. Plainly, that is the reason for the appellant’s travel to Medowie.
In respect of Travel, Dr Allan recorded in his report that:
“She is fatigued and becomes distracted at times. She reports at times as ‘dissociated’ when behind the wheel. I regard her as having a Class 2 level of impairment, given that she can travel independently in familiar areas. She notedly avoids areas which she associates with traumatic incidents which she has become aware of during her work at Allambi.”
With respect to the MA, the panel is unable to conclude that the account of the appellant’s travel which he recorded is consistent with Class 1. The examples given for that class include:
“Can travel to new environments without supervision.”
There is no evidence that the appellant is capable of travelling to unfamiliar areas without supervision. In the opinion of the panel, the fact that she travels to see her brother and sister in Medowie is not consistent with her being able to travel in new environments without supervision. Medowie is not a new or unfamiliar environment for the appellant.
The panel noted Dr Allan’s evidence that the appellant would avoid places associated with Allambi and that the MA recorded in the MAC that she avoided Allambi Care (and that she is triggered by children’s noises as a result of her anxiety). This is not consistent with a “minor deficit attributable to normal variation in general population”.
In the opinion of the panel, it was not open to the MA to conclude that the appellant fell within Class 1 on the evidence before him. His assignment of this class constitutes a demonstrable error and the panel has concluded that it is appropriate to assign Class 2 in respect of travel. In that respect, it accepts the appellant’s submission and the opinion of Dr Allan.
Social functioning
In respect of Social functioning, the MA gave the following reasons for assigning Class 3:
“She is not dating. She noted she was not dating at the time of the work injury. She is very close to her mother, who visits at least fortnightly. She has a good relationship with her stepfather. She has ‘really good’ relationships with her brother and sister. They will usually stay at home together or occasionally go to the beach. She sees each of them approximately every 2 to 3 weeks. She sees her father every 2 to 3 months, however has regular phone calls. She has 3 close friends who will usually drop in every now and then. She has had lost numerous friendships. I would agree that the claimant does not currently have the capacity to form new relationships.”
Dr Allan assigned Class 4. He stated:
“I note that she does not provide any care for her elderly mother but rather her mother gives Ms West herself some supervision. I regard her ability to function socially, as severely impaired. She is reclusive and isolated and in my opinion, lacks any social skills which would be sufficient for her to form any friendship or develop relationships going forward.”
In the opinion of the panel, there was ample evidence to support a finding of Class 3 in this category. In his comments on the opinions of other medical practitioners, the MA noted
Dr Allan’s opinion and stated that using best clinical judgment the appellants impairment “is most consistent with a moderate impairment”.Table 11.4 gives the following examples of behaviour relevant to Class 4:
“Severe impairment, unable to form or sustain long-term relationships. Pre-existing relationships ended (e.g. lost partner, close friends) unable to care for dependants e.g. own children, elderly parent.”
The Table provides the following examples of Class 3:
“Moderate impairment: previous established relationship severely strained, evidenced by periods of separation for domestic violence. Spouse, relatives or community services looking after children.”
On the whole of the evidence, the panel would reach the same conclusion as the MA and assign a moderate impairment or class 3. It is unnecessary, however, to perform that task, as the appellant has been unable to demonstrate error in the approach of the MA or the application of incorrect criteria. There is no suggestion that the MA has in any way misdirected himself in considering the class or that his conclusion was not plainly available on the evidence.
Concentration, persistence and pace
The MA gave the following reasons for assigning Class 2 in this category:
“The applicant has been able to maintain her attention and concentration whilst completing a number of different group therapy programs whilst at Warners Bay Private Hospital, including stair program, PTSD program, anxiety management program and she has recently commenced dialectical behavioural therapy group program. She noted that the group activities consist of 3½ hour courses per week. She completed a mindfulness based stress reduction course in 2020. She is able to read for up to 60 minutes prior to getting distracted. As such it is evident the applicant would be able to complete a basic retraining course or a standard course at slower pace, and this is most consistent with a mild impairment.”
While the appellant has criticised this finding, there are other aspects of the MAC which reinforce the MA’s classification in this category. In his medical history, the MA noted that the appellant was:
“Spending a lot of time repairing some furniture. She is doing the sanding and painting for hours at a time. She will mow the lawn. She watches a lot of Netflix such as Anne of Green Gables.”
In the opinion of the panel, that history is supportive of the MA’s assignment of Class 2. As Garling J stated in Jenkins v Ambulance Service of New South Wales [2015] NSWCA 633 (26 June 2015) the assignment of classes in the PIRS categories involves more than merely weighing up the examples provided in the Table. It requires the exercise of the skill and judgement of a specialist psychiatrist. That is undoubtedly true of an assessment of Concentration, persistence and pace. The assignment of a class occurs against the background of the MA’s mental state examination of the worker and a consideration of all of the evidence.
Dr Allan, of course, gave different reasons for assigning Class 3. He, however, saw the appellant seven months before the MA and it is understandable that there would be some variation in the appellant’s symptoms over time. The MA recorded a detailed history of the appellant’s symptoms and activities relevant to this category. He gave appropriate reasons for his decision in accordance with the instruction in Wingfoot. While his opinion is different to that expressed by Dr Allan, there is no suggestion of error in the way he reached that opinion.
The MA also allowed 1% for the effect of treatment which must reflect his opinion that the treatment undertaken by the appellant was reducing her psychiatric symptomatology at the time of his assessment.
Bearing in mind the adjustment made by the panel in respect of Travel, the appellant’s percentage impairment is 19%. To this must be added the 1% for the effect of treatment awarded by the MA. Thus, the appellant’s WPI determined in accordance with Chapter 11 of the guidelines is 20%.
For these reasons, the appeal panel has determined that the MAC issued on 28 May 2021 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
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 Dr Christopher Bench 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) |
| 1. Psychological disorder | 14 June 2018 | Chapter 11, pp 54-60. par 11.1 to 11.20 | Not applicable | 19% | Not applicable | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | +1% treatment uplift =20% | |||||
Paul Sweeney
Member
Michael Hong
Medical Assessor
Patrick Morris
Medical Assessor
7 April 2022
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