Wright v Ngroo Education Incorporated
[2022] NSWPICMP 106
•9 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wright v Ngroo Education Incorporated [2022] NSWPICMP 106 |
| APPELLANT: | Janet Wright |
| RESPONDENT: | Ngroo Education Incorporated |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Douglas Andrews Dr Nicholas Glozier |
| DATE OF DECISION: | 9 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffering primary psychological injury appealed against the classification of the Medical Assessor in the PIRS categories of concentration, persistence and pace; Held – no error demonstrated; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 March 2022 Janet Wright (Ms Wright/the appellant) made an Application to Appeal against a Medical Assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Patrick Morris, Medical Assessor (the MA) and issued on 8 February 2022.
The respondent to the appeal is Ngroo Education Incorporated (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds 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 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Wright developed a primary psychological injury in the course of her employment with the respondent as the chief executive officer (CEO).
On 30 September 2021, Ms Wright commenced proceedings in the Commission claiming 15% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 30 March 2021.
The matter was referred to the MA, on 22 November 2021 for assessment of WPI of
Ms Wright’s psychological injury deemed to have occurred on 30 March 2021.The MA examined Ms Wright on 2 February 2022 through video link. The MA assessed 7% WPI as a result of the injury deemed to have occurred on 30 March 2021.
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.
In her submissions Ms Wright stated that she may need to be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms Wright to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that 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 that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
Ms Wright’s submissions include the following:
(a) The assessments by the MA in respect of the Psychiatric Impairment Rating Scale (PIRS) for self-care and personal hygiene, social functioning, travel, social and recreational activities and employability were the same as those made by Dr Chow. The only area of difference concerned concentration, persistence and pace. Dr Chow assigned class 3 for this scale, whereas the MA assigned class 2.
(b) To qualify for class 2 (mild impairment) there has to be an ability to undertake intellectually demanding tasks of at least up to 30 minutes, or to undertake a basic training course or a standard course at a slower pace.
(c) The MA assigned class 2 for this PIRS category. He said at [10b] of the MAC that he assigned class 2 rather than class 3 as Dr Chow did because:
“…. as Ms Wright said she was able to read for about 15 minutes before losing concentration and was able to follow the story of movies she watches on television (which would generally be for more than one hour in duration). She was also able to focus and concentrate for the duration of the assessment which lasted one hour, and she provided very clear and detailed responses to questions regarding her history.”
(d) The evidence on which the MA relied to assign class 2 was:
• Ms Wright was able to read for 15 minutes before losing concentration;
• Ms Wright was able to follow a story of movies she watches on television (for more than one hour in duration), and
• Ms Wright was able to focus and concentrate and provide very clear and detailed responses for the duration of the assessment which lasted one hour.
(e) The first bullet point reason would not be sufficient to qualify for class 2 because class 2 requires an inability to focus on intellectually demanding tasks for up to 30 minutes. The evidence was that reading could not be maintained beyond 15 minutes. There is no evidence as to what the reading material was – whether it was newspapers, whether it was stories online or magazines or books, and there was no evidence as to the level of intellectual engagement required. There was insufficient information set out in the MAC to find that Ms Wright qualified for class 2.
(f) The second bullet point reason also would not be sufficient information on which to base a class 2 assessment, because there is no evidence as to whether the movies that Ms Wright was watching were intellectually demanding or that they were equivalent to undertaking a basic training course or standard course at a slower pace. The ability to undertake a task that is “intellectually demanding” is a requirement for class 2. This has not been addressed by the MA and there is no indication in his process of reasoning that he has considered this relevant consideration, and correctly applied the criteria. There was insufficient information set out in the MAC to find that Ms Wright ought to be assessed as class 2.
(g) The third reason was not an appropriate or relevant consideration and ought not be permitted to be inserted into the class descriptors as a relevant consideration. The ability of a person to participate in an interview with a MA is not set out in the example and is not a fair measure by which to assess concentration, persistence and pace. The MA ran the conference and directed Ms Wright’s attention to enquiries posed by him. She was a passive respondent reacting to the structure of the interview imposed by the MA. That environment was a very different one from one in which Ms Wright was independently required to pay attention, concentrate and maintain concentration without prompts and directions, and have an ability to undertake a basic training course or focus on an intellectually demanding task independently, which is the purpose of the assessment under this particular PIRS category.
(h) It is important and relevant to distinguish between the exceptional and peculiar nature of a medical assessment by a professional trained in asking questions as opposed to the worker’s own independent experience of maintaining concentration. The PIRS category in respect of concentration, persistence and pace is concerned with the ability to maintain concentration.
(i) The MA has applied incorrect criteria and failed to apply correct criteria as set out in the PIRS examples. This error also amounts to a demonstrable error because there has been a failure by the MA to provide sufficient information for classifying Ms Wright as class 2 rather than class 3 for concentration, persistence and pace.
(j) In Leanne Zaccazan v Sunlight Products Pty Ltd [2021] NSWPICMP 69, the Appeal Panel found that the MA had failed to provide sufficient information for classifying the appellant in that matter as class 2 rather than class 3.
(k) Ms Wright accepts that to establish error in respect of PIRS assessments, there must be more than a mere difference of opinion. The matters asserted in these submissions do not constitute a mere disagreement, and for the reasons submitted upon, the decision in respect of concentration, persistence and pace was outside the range of legally permissible outcomes (Vannini v Worldwide Demolitions [2018] NSWCA 324, [87], [92]).
(l) A re-examination may be required.
(m) If class 3 is assigned, the aggregate score is 15 and the median is 2.5 rounded up to 3. Applying Table 11.7 and using the conversion table, this would result in 15% WPI. The outcome of this appeal is significant to Ms Wright.
(n) The Appeal Panel ought to find error and revoke the MAC, and then issue a new MAC as to the matters concerned.
The respondent’s submissions include the following:
(a) Ms Wright received an independent medical assessment of her injury in accordance with the role and function of the MA. The MA had the benefit of both examining the worker in person and reviewing the evidence relied upon by both parties.
(b) In accordance with the decision of Deputy President Flemming in the matter of Phillip John Carmody v Walter Merriman & Sons Pty Limited [2003] NSWWCCPD 27, “a medical assessment is entirely a matter for the AMS, who has the medico-legal reports from both parties before him or her...and has frequently had the benefit of a personal examination of the worker...”.
(c) There is no evidence the examination by the MA was in any way materially defective. The MA’s examination amounted to a proper medical examination. There is no evidence to the contrary.
(d) The appeal only concerns the assessment by the MA in respect of the PIRS assessment for concentration, persistence and pace. The only area of difference in opinion between the worker’s Independent Medical Examiner (IME), Dr Chow, and the MA concerned concentration, persistence and pace. Dr Chow assigned class 3 for this scale, whereas the MA assigned class 2. The MA explained at [10b] of the MAC why he assigned class 2 rather than class 3 as Dr Chow did.
(e) The MA’s assessment under the PIRS categories is reached by taking into consideration all the available evidence and information, and then applying medical judgement based on knowledge and experience. The MA did not consider such an assessment difficult nor costly and used all available information before him, including contemporary medical evidence and Ms Wright’s statement evidence, to rate the injured worker’s level of functioning. That the MA may have placed weight on certain information and not on other information when forming his opinion was a matter within his clinical judgement.
(f) The MA has undertaken and recorded a detailed analysis of Ms Wright’s level of functioning with respect to the category of concentration, persistence and pace. The MA has noted that Ms Wright reported being able to read for about 15 minutes before losing concentration and she was able to follow the story lines of movies that she watches on television. She was able to focus and concentrate for the one-hour duration of the assessment and provided very clear and detailed responses to questions regarding her history.
(g) The MA was entitled to make an assessment of class 2 rating for concentration, persistence and pace. The fact that another assessor may have made a different assessment does not mean that the assessment was in error. The assessment in the PIRS categories made by the MA do not disclose an error (Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker)).
(h) The fact that other medical professionals, such as Dr Chow, had made different assessments based on the history provided to them, is of little significance. A mere difference in medical opinion does not amount to a demonstrable error (Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939).
(i) Based on the evidence before him and, in particular, Ms Wright’s history and presentation upon assessment, the MA was entitled to assess the worker within class 2 rating assessment of mild impairment for concentration, persistence and pace. The MA reached an entirely reasonable conclusion based on his clinical judgment and is not an application of incorrect criteria nor do his reasons disclose a demonstratable error.
(j) The MA did not err and there has been no demonstrable error or use of incorrect criteria in the MA’s assessment of the appellant’s impairment.
(k) The MA’s opinion should be conclusively presumed correct. His findings are a matter within the clinical judgment of the MA. Such does not constitute a demonstrable error, nor does it evidence that the assessment of the MA was based on incorrect criteria.
(l) The MAC should 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.
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 the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
On page 3 of the Medical Assessment Certificate (MAC) under “Present symptoms”, the MA wrote:
“Ms Wright feels depressed and sad and is more tearful than previously. She has very poor sleep especially with trouble staying asleep. She reports being very anxious and edgy which she said leads to irritability. She reports having reduced concentration which limits her reading. She reports finding it difficult to cope with new activities. She said that she worries frequently. She reports overeating and has gained 13kg in weight in two years. She reports having a low energy level and tiring easily. She describes being very indecisive. She feels hopeless at times but does not have suicidal thoughts”.
Under “Findings on physical examination” the MA noted:
“Ms Wright was a well-groomed, elderly woman wearing glasses with short white hair. She was cooperative in her manner. Her speech was of normal rate and flow. Her mood was depressed and her affect was appropriate to her mood with reduced reactivity. There was no formal thought disorder and no psychotic symptoms. Ms Wright was alert and orientated and able to concentrate for the duration of the assessment which lasted approximately 60 minutes. She was able to answer questions about her history with clear and detailed responses”.
Under “Summary”, the MA wrote:
“In my opinion Ms Wright has the psychiatric condition of Persistent Depressive Disorder with anxious distress according to DSM-5 diagnostic criteria. Her condition began in response to work-related stressors that she experienced whilst working as the executive director of Ngroo Education Incorporated from September 2018 until she left that position in February 2019. Despite stopping work and having appropriate psychological treatment and antidepressant medication, her condition has remained clinically significant”.
At [10(a)] of the MAC under “Reasons for Assessment” the MA noted:
“I rated Ms Wright a Class 2 for Concentration Persistence and Pace rather than a Class 3 as Ms Wright said she was able to read for about 15 minutes before losing concentration and was able to follow the story of movies she watches on television (which would generally be for more than one hour in duration). She was also able to focus and concentrate for the duration of the assessment which lasted one hour, and she provided very clear and detailed responses to questions regarding her history”.
Discussion
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
PIRS category of concentration, persistence and pace
The appeal related to the assessment made by the MA in the PIRS category of concentration, persistence and pace.
In Parker Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the Approved Medical Specialist (AMS). Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633, Garling J considered the question of the assessment of a class within a PIRS category and rejected a submission that when assigning a class of impairment to each scale, the AMS was restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum. Garling J stressed the importance of clinical assessment and judgment, both of which were required in formulating an opinion. He observed that the descriptors were examples only and it was necessary to consider the individual’s activities that were usual for the person’s age, sex and cultural norms. He observed that the boundaries between the classes are not of themselves bright line boundaries.
The MA assessed Ms Wright as Cclass 2 for concentration, persistence and pace.
Paragraph 11.12 of the Guidelines provides:
“Impairment in each area is rated using Class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The classes of each PIRS category are allocated a descriptor. These descriptors are to be determined comparable to the clinical norms considering the person’s age, sex and culture. The associated examples are provided as guides and are not determinative.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache”.
The examples for class 3 are:
“Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In the PIRS Rating Form, the MA wrote:
“Concentration, Persistence and Pace - Class 2
Mild impairment. Ms Wright reports being able to read for about 15 minutes before losing concentration. She said she is able to follow the story lines of movies that she watches on television. She was able to focus and concentrate for the one-hour duration of the assessment and provided clear and detailed answers to questions about her history”.
The appellant submitted that the MA had applied incorrect criteria and failed to apply correct criteria as set out in the PIRS examples and that this amounted to a demonstrable error because there has been a failure by the MA to provide sufficient information for classifying Ms Wright as class 2 rather than class 3 for concentration, persistence and pace.
The Appeal Panel reviewed the evidence in this matter.
Ms Wright, in her statement dated 20 September 2021, said that she suffered from poor concentration and memory, had difficulty making complex decisions and was unable to focus on reading for more that 10 minutes.
Dr Chow, in a report dated 3 March 2021, under “Examination” wrote: “Cognitively, she appeared grossly intact, but complained of some concentration difficulties”. He made a diagnosis of a chronic adjustment disorder. Dr Chong assessed Ms Wright as class 3 for concentration, persistence and pace noting: “She has poor concentration and is distracted easily. She can only read 10 minutes at a time and is usually forgetful”.
Dr Bisht, in her report dated 1 July 2021, noted that Ms Wright described symptoms including difficulty concentrating for long periods and making complex decisions. Dr Bisht reported that Ms Wright said:
“I do read, mostly to do with stuff that I used to do. That actually makes me quite sad. I will read for half an hour max, I thought it was my eyes, but it isn't; I get tired or I get distracted and I just stop.
…I am concerned about my ability to think properly. I get confused. I will be talking to someone, and I will forget what I was starting to say. Or I will say something that I will not mean to say. I have to write notes about things. I keep a diary about everything that I am going to do in a day”.
Under “Mental Health examination” Dr Bisht wrote:
“Cognitively, she able to provide reasonably detailed answers to my questions, although there was circumstantiality. Her short term memory was somewhat impaired. Long term memory was somewhat impaired too.”
Dr Bisht made a diagnosis of adjustment disorder with mixed anxious and depressed mood. She considered that Ms Wright was not at maximal medical improvement and therefore made no assessment of impairment.
The Appeal Panel considered whether the MA had erred in making a class 2 rating for concentration, persistence and pace. Dr Chong rated Ms Wright as class 3 for concentration, persistence and pace. The MA acknowledged that Dr Chong had provided a different rating noting: “Where he differed from me was in the rating for Concentration Persistence and Pace where he rated Ms Wright a class 3 whereas I have rated her a class 2 for the reasons I have detailed in this report”.
As noted above, the descriptors are examples only and it is necessary to consider the individual’s activities that were usual for the person’s age, sex and cultural norms.
The MA has provided a detailed assessment. He noted that Ms Wright reported in the examination on 2 February 2022 that she was able to read for about 15 minutes before losing concentration. Dr Chow on 3 March 2021 reported that she could read for 10 minutes as did Ms Wright in her statement dated 20 September 2021. However, Dr Bisht reported on 1 July 2021 that Ms Wright could read for half an hour.
The MA noted that Ms Wright said that she could follow the story lines of movies that she watched on television. Neither Dr Chow nor Dr Bisht referred to Ms Wright watching movies and her ability to follow the story line. Ms Wright argued that there was no evidence as to whether the movies that she watched were intellectually demanding. The Appeal Panel was satisfied that watching a film and following a story line was intellectually demanding to some degree.
The MA also noted that Ms Wright was able to focus and concentrate for the one-hour duration of the assessment and provided clear and detailed answers to questions about her history. Ms Wright argued that this reason was not an appropriate or relevant consideration and ought not be permitted to be inserted into the class descriptors as a relevant consideration.
The Appeal Panel considered that Ms Wright’s focus and concentration during the assessment was an appropriate and relevant consideration. Concentration, persistence and pace is the only category in the PIRS where the assessor can judge impairment objectively; other categories require a more subjective assessment. Concentration, persistence and pace is a category where the assessor can apply clinical judgment and considerable weight must be given to the assessor’s observations in the clinical examination. The assessor, during the clinical examination, is able to observe the worker’s ability to concentrate, assess persistence with the cognitive demands of the assessment, and observe the pace at which the worker can engage.
The fact that Dr Chow made a different assessment does not mean that the assessment by the MA was in error. A mere difference in medical opinion does not amount to a demonstrable error.
The Appeal Panel considered that the reasons given by the MA were consistent with class 3. Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open for the MA on the evidence to make an assessment of class 3 for concentration, persistence and pace.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of concentration, persistence and pace. The Appeal Panel was satisfied that the assessment in the PIRS category of concentration, persistence and pace was not made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 February 2022 should be confirmed.
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