Williams v Secretary, Department of Education
[2021] NSWPICMP 37
•31 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Williams v Secretary, Department of Education [2021] NSWPICMP 37 |
| APPELLANT: | Darren Williams |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL: | Member Brett Batchelor Dr Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 31 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant sustained psychological injury in the course of his employment with the respondent as a school teacher; claim for permanent loss compensation pursuant to section 66 of the 1987 Act; Medical Assessor (then an AMS) found Class 2 for employability of the PIRS; total WPI assessed by him 7%; the only ground of appeal was against classification of the appellant worker in Class 2 for employability; appellant claims he should have been placed in Class 3; examination of the evidence in respect of the appellant’s employment since date of injury and current employment with the respondent; Held- the Appeal Panel found that the Medical Assessor made no error in determining Class 2 for employability; MAC issued 17 August 2020 confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 September 2020 Darren Williams (the appellant/Mr Williams) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor (formerly referred to as an Approved Medical Specialist - ‘AMS’), who issued a Medical Assessment Certificate (MAC) on 17 August 2020.
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 medical assessment certificate 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 2006 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 WorkCover Medical Assessment Guidelines 2006.
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
Mr Williams commenced employment with Department of Education as a hospitality teacher at the Chatham High School, Taree in 2004. About mid 2013 he transferred to Nambucca High School. On 19 March 2015 he was working as relieving deputy principal and was injured when he tried to break up a fight between two students. He was stabbed in his dominant right arm, and since that time has continued to suffer right arm pain with a loss of sensation in his right arm. This physical injury has stabilised but Mr Williams suffered psychological injury in the form of persisting depression and anxiety since the stabbing incident. He becomes anxious and feels like he has to get away when people come too close to him or when there are angry people around him. He is constantly on the look out for danger. He says that the stabbing incident still plays on his mind.
The appellant subsequently transferred to Orara High School in Coffs Harbour as relieving deputy principal where he worked for the following two and a half years, and returned to Nambucca High School as the head teacher in 2018, where he worked for 12 months. He noted that the family of the boy who stabbed him was still coming into the school. Mr Williams’ anxieties prevented him working beyond 12 months at that school, and he moved back to Chatham High School in Taree in January 2019 where he has been working as the full-time deputy principal. His main role is managing the computer system, predominantly related to information technology. He occasionally teaches classes when there are no other teachers available. Mr Williams says that the school is reasonably functional as such, with about 520 students, but it has difficulty in attracting enough casual teachers. Over the three months leading up to the assessment by the Medical Assessor Dr Hong on 11 August 2020 the appellant taught two periods.
Mr Williams reports needing to take sick leave intermittently due to stress. On occasions he will take between one and four days sick leave. Apart from his role in managing the computer system and in information technology, he manages some of the year groups, reviews the faculty and teachers and helps with administration. His interaction with students is minimal. On occasions when difficult or aggressive students are referred to him and a discussion with parents is required in respect of suspension and behaviour management, he finds this difficult. Mr Williams has not had any performance issues raised against him.
In respect of treatment, the appellant was attending upon a psychologist approximately fortnightly as of December 2018 and taking Zoloft. He said at that time that prior to the incident on 19 March 2015 he used to enjoy a great social life and go to the gym regularly. As a result of his ongoing depression and anxiety he says that he became extremely housebound and felt anxious in social situations. He lacked the motivation to go to the gym and felt extremely isolated, struggles with anxiety and prefers his own company.
More recently as of June 2020 when the appellant supplied a further statement, he noted that he and his partner had split up after 16 years, and his subsequent attempt to develop a relationship lasted only 12 months. He said that the incident of 19 March 2015 has had a profound impact on his family life. Family Court proceedings between him and his wife resolved and he is required to travel to the Central Coast every weekend to visit his children. He says that he is socially withdrawn and does not leave the house except for work and to visit his children.
Mr Williams was independently medically examined at the request of his solicitor by Dr Thomas Oldtree Clark, consultant forensic psychiatrist, on 27 March 2018, who produced a report dated 9 April 2018[1]. Dr Clark diagnosed the appellant as suffering from post-traumatic stress syndrome (PTSD) as a result of the psychological injury suffered on 19 March 2015 and assessed his whole person impairment (WPI) according to the psychiatric impairment rating scale (PIRS) in Table 11.1 at p 56 of the Guidelines. His assessment was:
[1] Appeal Papers p 60.
(a)Self-care and personal hygiene - Class 3;
(b)Social and recreational activities – Class 2;
(c)Travel – Class 1;
(d)Social functioning (relationships) – Class 2;
(e)Concentration, persistence and pace – Class 3, and
(f)Employability – Class 3.
The total WPI according to Table 11.7 on p 58 of the Guidelines was 13%, to which Dr Clark added 2% for the effects of treatment, bringing the final WPI to 15%.
Mr Williams was independently medically examined at the request of the solicitor for the respondent employer by Dr Roger Wenden, psychiatrist, on 16 November 2018. Dr Wenden produced a report dated 23 November 2018[2] containing a diagnosis of the appellant suffering from PTSD as a result of the assault at work, and in addition, Adjustment Disorder with mixed anxiety and depressed mood as a result of the breakdown of his marriage and separation from his children.
[2] Appeal Papers p 395.
Dr Wenden’s assessment of WPI according to the PIRS scale was:
(a) Self-care and personal hygiene – Class 2;
(b) Social and recreational activities – Class 3;
(c) Travel – Class 1;
(d) Social functioning – Class 4;
(e) Concentration, persistence and pace – Class 1, and
(f) Employability – Class 1.
This resulted in a final WPI of 6%. Dr Wenden made no allowance for the effects of medication, as he noted that the appellant did not take medication. He made no deductions for the effects of Adjustment Disorder with mixed anxiety and depressed mood as in his opinion it was not a secondary psychological condition as a result of physical injuries but is secondary to the appellant’s PTSD and resultant marriage break down.
The appellant was assessed by AMS Dr Brian Parsonage, psychiatrist, on 19 March 2019. Dr Parsonage produced a MAC dated 21 March 2019[3] in which he found that Mr Williams had not reached maximum medical improvement. He noted that while his conduct appeared to have stabilised and reached maximum medical improvement towards the end of 2018 when he had completed a year back at in his pre-injury position, he described having difficulty remaining in that position and therefore sought a position away from Nambucca High School. Unfortunately, he had stopped treatment three months previously, and had been in a new position at the higher level of deputy principal, and at the same time had been affected by difficulties associated with the ending of his de facto relationship which was related to his work injury. When Dr Parsonage saw Mr Williams he had stopped working for a week and it was uncertain whether he would return to work and whether he would re-engage in his previous treatment. Dr Parsonage did not therefore consider that the appellant’s condition was well stabilised and thought that it was reasonably likely to change substantially in the following year with or without medical treatment. He therefore deferred the assessment of permanent impairment. Because he did not conduct a formal assessment of permanent impairment, Dr Parsonage did not comment on any differences between his assessment and those of Dr Clark and Dr Wenden other than to note that Dr Clark, whose total assessment of WPI was 13%, did not use the correct methodology in making an adjustment for the effects of treatment.
[3] Appeal Papers p 543.
The assessment of the Medical Assessor, Dr Wong, of WPI according to the PIRS scale was:
(a) Self-care and personal hygiene – Class 2;
(b) Social and recreational activities – Class 3;
(c) Travel – Class 1;
(d) Social functioning – Class 4;
(e) Concentration, persistence and pace – Class 2, and
(f) Employability and Adaptation – Class 2.
This assessment resulted in a final WPI of 7%.[4]
[4] Appeal Papers p 30.
In respect of employability and adaptation, Dr Wong said in his Table 11.8 PIRS Rating Form in the MAC:
“Mr Williams is working full-time at a more senior level,
which requires comparable intellect as his pre-injury
duties.
However, he has difficulties managing the students as a
result of his anxieties, and has been taking intermittent
sick leave and he is not free from psychiatric
occupational impairment.I have discussed this further under 10c.” [sic]
Dr Wong discussed employability at [10.b.] in the following terms:
“Dr Clark rated Mr Williams’ employability as 3 because he works part-time. Dr Wenden rated 1 and noted he works full-time as a teacher. From my assessment, I notified Mr Williams works full-time, he is working at a more senior level than he was before the subject injury. However, he struggles with direct student management. His current work is predominantly computer based. Overall, I consider this is consistent with a rating of 2 because Mr Williams can work full-time. This duty requires comparable skill and intellect as the pre-injury job but he cannot perform in the same location.”
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 2006.
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 although the appellant requests that he be re-examined by an AMS who is a member of the Appeal Panel, the Panel is of the opinion that there is sufficient evidence in the Appeal Papers on which to base its decision.
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 (the MAC) given by the Medical Assessor[5] that are relevant to the appeal are set out, where relevant, in the body of this decision.
[5] Appeal Papers p 20.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Appellant
In the form of Application to Appeal Against the Decision of an Approved Medical Specialist the appellant specified that the only ground of appeal was that the medical assessment contains a demonstrable error[6]. However the appellant’s submissions referred only to the ground under s 327(3)(c) of the 1998 Act, that the AMS erred in applying the wrong criteria to his assessment of employability pursuant to the PIRS[7].
[6] Appeal Papers p 4.
[7] Appeal Papers p 9.
In summary, the appellant notes that Dr Clark found that the appellant should be in category [sic, Class] 3 for employability on the basis that Mr Williams can only work part-time and in a job that has a less demanding skill set, namely, he is no longer taking classes or directly supervising students. The appellant submits that the Medical Assessor was correct in rejecting Dr Wenden’s categorisation of his ability to work, as he is clearly doing less stressful work and is not capable of returning to classroom duties. He refers to his experiences with troublesome students and the stresses he suffers with face to face interactions.
The appellant refers to his supplementary statement in evidence dated 20 June 2020 [sic, 15 June 2020][8] to the effect that the duties he is now doing are significantly different and require a different, and in effect, less onerous skill set than his old classroom duties. For this reason, the appellant maintains that Class 3, while not a perfect fit, is a better fit than Class 2. The appellant submits that Class 2 assumes that the same job can be done in the absence of certain persons. This is not the case with the appellant, as he cannot do his old job in front of a classroom; he is unable to perform his old duties.
[8] Appeal Papers p 404.
The appellant submits that while the Medical Assessor found he can work full-time, this did not stop him assessing him in Class 2, which normally involves working 20 hours a week. In the same way and in line with the assessment of Dr Clark, the appellant’s ability to work full time does not mean that Class 3 should not apply as a best fit.
Similarly, and in accordance with the assessment of Dr Clark, the appellant’s ability to work full time does not mean that Class 3 should not apply as best fit. Dr Clark noted that the appellant was “working in his old job”, further reinforcing the contention that the ability to work full time does not mean that Class 3 cannot be applied in an appropriate case.
Respondent
In reply, the respondent submits that the AMS provided clear and justified reasons for his PIRS assessment of employability, and notes that, whilst not raised as a ground of appeal by the appellant, there is no demonstrable error in accordance with s 327(3)(d) of the 1998 Act. In respect of this submission, the respondent relies upon what Harrison AsJ stated at [66] in Glen William Parker v Select Civil Pty Limited[9] 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 the statutory sense.”
[9] [2018] NSWSC 140.
The respondent submits that the appellant’s submissions merely cavil with the findings of the AMS.
The respondent notes the reasoning of Wood CJ at CL in Campbelltown City Council v Vegan[10] “…that the ‘criteria’ are to be found in any relevant guides, including those issued by WorkCover which have been issued for the assessment of impairment and that appeal lies where they have been incorrectly applied.” (Emphasis in original). The respondent then refers to the Guidelines.
[10] [2004] NSWSC 1129.
The respondent submits that the Medical Assessor correctly applied the criteria in Chapter 11 of the Guidelines, in particular [11.12] thereof.
The respondent submits that Class 2 of the PIRS for employability clearly applies to full time employment in a different environment/role, as in the present case, and equally it may apply to workers in the same role who are working no more than 20 hours per week.
The respondent submits that the comment of the Medical Assessor that the appellant has difficulties managing students as a result of his anxieties, has been taking intermittent sick leave and is not free from psychiatric occupational impairment, separates his assessment from Class 1 (no impairment) to Class 2 (mild impairment).
The respondent notes that Dr Clark assessed the appellant for employability in the report dated 9 April 2018 on the basis that he could work part time. Dr Wenden assessed the appellant in November 2018 by which time Mr Williams had returned to full time employment.
The respondent submits that it is open to the Medical Assessor to make a determination based on the whole of the evidence, including the history obtained and his observations on examination, and that Dr Hong validly bases his assessment on his observations on examination and the history obtained, as evidenced in his reasons for the determination. Therefore, there has been no error. The Medical Assessor is not under obligation to accept the evidence of the appellant’s own doctor, but must take it into account and consider it in the context of his own assessments upon examination. Dr Hong has done this, and considers a number of other opinions, including those of Dr Clark and Dr Wenden.
The respondent submits that the appeal should be dismissed and that the assessment of the Medical Assessor, Dr Hong who assessed 7% WPI, be confirmed.
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. Once error is made out, the Panel may “review” the MAC (see Siddik v Workcover Authority of NSW[11] and NSW Police Force v Registrar[12]).
[11] [2008] NSWCA 116.
[12] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[13] 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.
[13] [2006] NSWCA 284.
The Principles of Assessment are set out in Part 2 of the Introduction to the Guidelines. Relevant to this matter, they are:
“1.6 The following is a basis summary of some of the key principles of permanent impairment assessments:
a.Assessing 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 to determine:
· whether the condition has reached Maximum Medical Improvement (MMI)
· whether the claimant’s compensable injury/condition has resulted in an impairment
· whether the resultant impairment is permanent
· the degree of permanent impairment that results from the injury
· the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality,
· if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.
b.Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
Chapter 11 of the Guides (“Psychiatric and psychological disorders”) relevantly provides:
(a) “11.8 Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”
(b) “11.12 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.”
Table 11.6 of the Guidelines sets out the classes of the PIRS for employability. The issue in the current proceedings is whether the appellant should be placed in Class 2 or Class 3 for employability. The descriptors for these classes are as follows:
(a) Class 2
“Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required)”
(b) Class 3
“Moderate impairment: cannot work at all in the same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less skilful).”
When the appellant was examined by Dr Clark on 28 March 2018, he was working four hours a day at Nambucca High School, having been “made [to] go back to his prior work” by the “authorities at the Department of Education” according to the history recorded by Dr Clark.[14] When Mr Williams saw Dr Wenden on 16 November 2018 the doctor recorded that:
(a) “Unfortunately after two and a half years it was decided to return [the appellant] to work at Nambucca High School and he became anxious and angry at this decision and reacted by thoughts that no one in the Department of Education cared about how he feels. The last twelve months he has been working back at the school where the assault took place and has been trying to readjust to the school but found himself reliving the situation of his assault and his sleep has been affected such that he wakes at 5 am and cannot get back to sleep after having difficulty falling asleep before midnight. He has broken sleep and suffers from anxiety symptoms of tightness in his chest and ruminations about the assault and what has happened to him as a result of it. He does not suffer from flashbacks and nightmares. He is anxious about his family and feels a loss of self esteem and has negative thoughts that he is no good for his family because he and his wife have separated and she will not talk to him. She communicates indirectly via text message.”[15]
[14] Appeal Papers p 61.
[15] Appeal Papers p 397.
In his statement dated 17 December 2018[16] Mr Williams says at [16]-[17] that following the incident he was consulting a psychologist and was eventually able to return to work at a different high school, Orara High School in Coffs Harbour. He then refers to an incident earlier that year when he was required to suspend a student and walk him off school property. Later in that afternoon he was in his office when the student suddenly returned and threatened him with words to the effect of “I will kill you.” The Principal had to remove the student. This incident caused Mr Williams to become extremely anxious as it triggered his memory of the assault in 2015.
[16] Appeal Papers p 42.
In his statement dated 15 June 2020 Mr Williams says that after the subject accident he attempted to return to work for a period of about five months at Nambucca High School, but could not do this as Nambucca was a small town and he was worried he might run into the boy or his family in the street. He had not been able to return to work as a TAS teacher due to the nature if his psychiatric injury and the pain in his right arm. He refers to his subsequent employment as a Deputy Principal at Chatham High School where he remained to the date of the statement, and says …”but I am not doing any TAS teaching due to my fear of sharp blade resulting from the subject accident.”
The Medical Assessor, Dr Hong, records the appellant’s transfer to Orara High School after his return to work following the assault as a relieving Deputy Principal, where he worked full time for the following two and a half years. He then notes the appellant’s return to Nambucca High School as the head teacher in 2018 where he worked for about 12 months. Due to the family of the boy who stabbed him still coming to the school grounds, Mr Williams’ anxieties prevented him working beyond 12 months. He then moved to Chatham High School in Taree as the full time deputy principal where he occasionally teaches when there are no other teachers available.
It thus appears from these histories that the appellant was:
(a) transferred to Orara High School following his return to work after the incident of 19 March 2015, where he worked full time as the relieving deputy principal for the next two and a half years. That is where the incident with a student referred to in [43] above occurred, “Earlier this year…” which triggered his memory “…of the assault in 2015.”[17]
(b) returned to Nambucca High School in 2018 where he worked during 2018, and
(c) then transferred to Chatham High School, Taree where he continues to work as the full time deputy principal.
[17] Appeal Papers p 43.
In the view of the Appeal Panel, the Medical Assessor has made no error in determining Class 2 for employability in which to place Mr Williams. He is able to work full time but in a different environment from that of the pre-injury job. The duties in his current job as full-time deputy principal require comparable skill and intellect as those of the pre-injury job, relieving deputy principal, and he can work in the same position, that is as a face-to face teacher, but no more than 20 hours per week.
Class 3 would not be appropriate. The Mr Williams can work in the same position, albeit on an occasional or restricted basis, It is not a situation where he can only perform fewer than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). He is working full time in his current position, and did so at Orara High School for two and a half years following the assault in 2015.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 August 2020. should be confirmed.
Brett Batchelor
Member
Dr Nicholas Glozier
Medical Assessor
Dr Patrick Morris
Medical Assessor
31 March 2021
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