Wood v Campbelltown City Council

DETERMINATION OF APPEAL PANEL
CITATION:	Wood v Campbelltown City Council [2024] NSWPICMP 136
APPELLANT:	David Wood
RESPONDENT:	Campbelltown City Council
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	13 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by rating appellant’s impairment in psychiatric impairment rating scale for employability as class 2 rather than class 3; Appeal Panel held MA erred; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 October 2023 David Wood, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
22 September 2023.
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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant worked as a Senior Project Specialist with Campbelltown City Council, the respondent, for approximately 10 years until his employment was terminated on
19 December 2020. Due to incidents that occurred within his workplace the appellant suffered a psychological injury. On 19 October 2022 he made a claim for compensation for permanent impairment from that injury. He relied on report of psychiatrist Dr Frank Chow dated 27 September 2022, who had examined the appellant on 1 September 2022 at the request of the appellant’s solicitors and who advised in his report that he assessed the appellant had 17% whole person impairment (WPI) from his injury.
By a noticed dated 13 April 2023 issued in accordance with s 78 of the 1998 Act, the respondent advised the appellant that it disputed his claim for compensation for permanent impairment from his injury. It advised him it relied on a report of psychiatrist Dr John Roberts dated 26 March 2023, who had examined the appellant on 2 March 2023. Dr Roberts advised in his report that he assessed the appellant had 1% WPI. That was beneath the threshold imposed by s 65A(3) of the Workers Compensation Act 1987 for a worker to be entitled to receive compensation for permanent impairment from an injury.
The appellant thereupon instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. The matter was referred to the Medical Assessor who examined the appellant on 18 September 2023 and, as already said, issued the MAC in response to the referral on 22 September 2023. In that he certified he had assessed the appellant had 7% WPI from his injury.

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 did not require the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal.

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 appellant’s appeal relates to the Medical Assessor’s rating of his impairment in psychiatric impairment rating scale (PIRS) for employability. Relevant to that, the Medical Assessor obtained a history that the appellant worked as a senior project specialist for the respondent for several years. The Medical Assessor also obtained a history of the appellant gaining employment as a truck driver with another council in October 2021, which was subsequent to the date on which the appellant suffered his injury.
The Medical Assessor noted that the appellant before commencing his employment with the respondent had completed an apprenticeship as a tool maker and had spent some time working in hospitality.
The Medical Assessor diagnosed the appellant’s injury was a persistent depressive disorder with anxious distress, of moderate severity.
The Medical Assessor rated the appellant’s impairment in the PIRS for employability as class 2. He provided the following reasons for his rating:
“Mr Wood has been working for his current employer as a full-time truck driver for approximately 2 years. He works with several other men that travel with him. The role requires a reasonable degree of mental focus and the ability to work with others. This work is of a less intellectual demanding nature than his pre-injury employment, though he’s able to work full-time and has been able to sustain that employment over a prolonged period of time.”
The Medical Assessor noted that Dr Roberts had rated the appellant’s impairment in this scale as class 2 and that Dr Chow had rated the appellant’s impairment as class 3. When comparing his rating to the respective ratings of Dr Chow and Dr Roberts the Medical Assessor commented that the appellant “works with a group of colleagues and is able to manage the demands of truck driving”. The Medical Assessor further commented that the appellant had been in his current employment for two years. The Appeal Panel observes that at the time that Dr Chow examined the appellant the appellant had been engaged in his current employment for approximately 11 months.
The Medical Assessor also commented that “Dr Chow states that Mr Wood requires periods of time off work which does not seem to be the case on the history at this 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 submitted that the Medical Assessor erred by rating his impairment in the PIRS for employability as class 2 rather than class 3 and that the Medical Assessor had applied incorrect criteria to rate his impairment as class 2. The appellant submitted the Medical Assessor obtained an incomplete and inadequate history because the Medical Assessor “failed to record any detail or history in relation to absences from work as a truck driver as recorded by Dr Chow”.
The appellant submitted that the Medical Assessor failed to consider his ability to perform within his current role. The appellant referred to the clinical records of his treating specialist, Dr Bisht, in which there was an entry for 14 October 2022 that the appellant had asked to train people but was very reticent about that as he was anxious about that. The appellant submitted that that indicated he is not coping with his current role and that this was inconsistent with the reasons the Medical Assessor provided for his rating, specifically that the appellant has the ability to work with others.
The appellant submitted that the key difference between a class 2 rating and a class 3 rating in the PIRS for employability is the capacity of a worker for pre-injury work and the number of hours that can be worked. The appellant submitted that “the evidence and the opinion of the Medical Assessor would appear to support a conclusion the appellant cannot work full-time in a different environment in a comparable role”. The appellant submitted that a class 3 categorisation is appropriate.
In reply, the respondent submitted that the Medical Assessor is not bound by the history or assessment findings of other examiners and the Medical Assessor “could not have erred where he has expressed an opinion or conclusion which is based on the history and examination taken by him at the medical assessment”. The respondent submitted that it is clear the Medical Assessor did obtain a history relating to the appellant’s history of absences from work, and this was because the Medical Assessor commented, when comparing his assessment to Dr Chow’s assessment, that it did not seem to be the case on the history he obtained that the appellant was requiring periods of work. The respondent submitted that the Medical Assessor considered the issues of the appellant’s absences from work.
The respondent highlighted that the descriptors provided in Table 11.6 for a class 2 or class 3 rating do not include absences from employment.
The respondent submitted that the Medical Assessor provided a clear explanation for rating the appellant’s impairment in the PIRS for employability as class 2.
The respondent submitted that the Medical Assessor failed to record a history of the appellant having difficulty with performing his current role. The respondent noted that the Medical Assessor’s reasoning for rating the appellant’s impairment as class 2 included a reference to the appellant’s ability to work with others.
The respondent submitted that a difference of opinion between medical practitioners is not of itself an error. The respondent submitted that the appellant has not demonstrated the existence of any “glaringly improbable” error or any “clear misunderstanding” by the Medical Assessor and has not demonstrated that there is any “unsupportable reasoning process” with respect to the Medical Assessor’s assessment of the appellant’s impairment.
The respondent submitted that the descriptors for class 3 rating indicate that rating is applicable in circumstance where the appellant can work in a different position for less than 20 hours a week and that the descriptors for a class 2 rating indicate that class 2 rating is applicable where the appellant is working full-time in a different role. The respondent submitted that because the Medical Assessor obtained a history that the appellant works full-time as a truck driver the Medical Assessor was correct to rate the appellant’s impairment as class 2 and not class 3. The respondent submitted that “the appellant is precluded from being assessed in class 3 where he is able to work full-time in a different environment with comparable skill requirements to the pre-injury job or where he is able to work in the same role for 20 hours per week or less”.
The respondent submitted that the Medical Assessor did not express the opinion that the appellant by working full-time as a truck driver is unable to work in his pre-injury role.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The appellant’s duties in his pre-injury employment as a senior project specialist with the respondent are detailed in a return to work plan that the respondent’s return to work officer, namely Lea Perfrement, signed on 5 December 2018.[1] The duties of the appellant in his position as a senior project specialist required him to manage staff and provide leadership, direction, support and training and mentoring. They required him to complete appraisals, timesheets and other staff related paperwork. They required him to coordinate the activities of construction, pavement improvement and maintenance activities and to provide regular accurate updates to his coordinator and manager. They required him to supervise day labour staff and contractors. They required him to organise labour, plant, materials and contractors. They required him to take responsibility for staff and contractors working under his control. They required him to create and maintain work programs. They required him to monitor and review budgets. They included ensuring purchasing procedures were completed in accordance with council policy and in a timely manner. They included his reporting on a regular basis on work activities and budgets. They required him to have the ability to write detailed technical reports and to articulate accurately and clearly work instructions and project updates. They included his communicating to all levels of council and external parties.
[1] Pages 132 - 135 of the Appeal Panel’s brief; pages 86 – 89 of the appellant’s application to resolve a dispute.
The Medical Assessor noted that the appellant’s present symptoms included his having low confidence and a feeling of being judged negatively and his worrying about a wide range of matters and being forgetful and having to be reminded by his wife and work colleagues to do tasks.
The Medical Assessor diagnosed the appellant had a persistent depressive disorder with anxious distress, of moderate severity.
The Medical Assessor was required to assess the degree of the appellant’s permanent impairment at the time the Medical Assessor conducted the assessment. The Medical Assessor was, as the respondent submitted, entitled to rely upon the history he obtained at that time. The Appeal Panel considers that the history the Medical Assessor obtained was adequate and included all relevant clinical data necessary for the Medical Assessor to enable the assessment.
Necessarily, an assessment of a workers’ impairment from a work related injury requires a comparison between a workers’ present function in the several PIRS relative to how the worker functioned preceding his or her injury.
The evidence does not explicitly indicate how well the appellant performed his duties as a senior project specialist prior to the stressors that occurred within his workplace that precipitated his injury. The Appeal Panel however, infers from the fact that the appellant had been employed in that position by respondent for 10 years and from there being no evidence in the material before it to indicate the respondent had any issues with his performance, the appellant performed his functions in his position adequately.
The Medical Assessor’s explanation for rating the appellant’s impairment as class 2 in the PIRS for employability was that the appellant was working full-time as a truck driver, which the Medical Assessor noted was less intellectually demanding position than his pre-injury employment. The Medical Assessor noted that the appellant had been able to perform in his current role for a period of 2 years. The Medical Assessor explained that the appellant worked with several other men who travelled with him.
The descriptors provided in Table 11.6 of the Guidelines for a class 2 rating are:
“Mild impairment. Able to work full-time but in a different environment from that of the pre-injury job. The duties required comparable skill and intellect of 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 specific location due to travel required).”
The descriptors provided in the table for a class 3 impairment are:
“Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or qualifiedly different (example less stressful).”
In the Appeal Panel’s view the critical distinction arising from those descriptors between a class 2 rating, that is a mild impairment, and a class 3 rating, that is a moderate impairment, is, as the appellant submitted, the capacity of a worker to engage in pre-injury work and a numbers of hours that a worker is able to work. When the descriptors for class 2 are read as a whole, a mild impairment requires that a worker be able either to work no more than 20 hours a week in the position that he or she did prior to the work injury or to work full-time in a job of comparable skill and intellect as that which was required in the workers’ pre-injury job, but work that comparable job in a different environment.
When regard is had to what the appellant was required to do in his pre-injury position, his current position is qualitatively different from his pre-injury position and the cognitive aspects of his current role are far less demanding than what they were in his pre-injury position. Given the symptoms the appellant currently has, specifically low confidence and a feeling of being judged and being forgetful and having to be reminded to do tasks, the Appeal Panel considers that the appellant met none of the descriptors to justify a class 2 rating for employability. The appellant could not work in his pre-injury job no matter what the environment. The appellant could not work in a role similar to his pre-injury job, that is a role that required comparable skill and intellect, no matter what the environment. The appellant, based on the history the Medical Assessor obtained, would be unlikely to work any hours in his pre-injury or comparable employment.
On one analysis, there is an apparent gap between the descriptors for class 2 and class 3, in that the class 3 descriptors include a worker being able to perform less than 20 hours a week in a different position that requires less skill and that is qualitatively different. It could be inferred from that, as is the case here, that if a worker is able to work full-time in any position that requires less skill and is qualitatively different than the worker’s pre-injury employment, then a class 3 cannot apply. However, noting that the other descriptor for a class 3 impairment is that a worker cannot work at all in the same position, which is the case here, and bearing in mind the appellant does not meet any of the descriptors for a class 2 impairment, the Appeal Panel considers that the Medical Assessor did err by rating the appellant’s impairment as class 2 for the PIRS for employability. The correct rating is class 3.
Given that, the median of the class scores of all the PIRS remains 2, but the aggregate increases to 15, which converts to 15% WPI in accordance with table 11.7 of the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5678/23
Applicant:	David Wood
Respondent:	Campbelltown City Council

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Alan Doris and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter,

page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychiatric/psychological disorder

28 November 2022 (deemed)

Chapter 11

15%

Total % WPI (the Combined Table values of all sub-totals)

15%

[2024] NSWPICMP 136

13 March 2024