Ballas v Department of Education & Communities (NSWWCCMA 2020)

Key Takeaways

The Workers Compensation Commission Medical Appeal Panel (‘MAP’) found that the Approved Medical Specialist (AMS) incorrectly considered evidence relevant to the Psychiatric Impairment Rating Scale (‘PIRS’) categories of travel and social functioning in the assessment of social and recreational activities.

The MAP thereby determined that the AMS erred in applying the correct criteria for social and recreational activities per Table 11.2 of SIRA’s NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (‘the Guidelines’).

The MAP revoked the Medical Assessment Certificate (MAC) assessing the appellant with 8% WPI, and issued a new MAC assessing her with 17% WPI for psychological injury.

Brief Facts

The applicant worker sustained psychological injuries in the course of her employment as a teacher with the respondent.

Liability for injury was accepted and the applicant brought a claim for 15% WPI.

The insurer disputed the claim on the basis that she had not reached maximum medical improvement.

AMS, Dr Hong assessed the applicant with 8% WPI for psychological injury. Accordingly, the applicant did not meet the threshold of 15% WPI and she was not entitled to lump sum compensation.

The applicant appealed the decision on the basis that incorrect criteria was applied and/or the MAC contained a demonstrable error regarding the PIRS assessment for social and recreational activities (per Table 11.2 of the Guidelines).

The Registrar’s Delegate of the Worker Compensation Commission (WCC) was not satisfied that at least one of the grounds of appeal had been made out. The MAC assessing 8% WPI was upheld and a Certificate of Determination (COD) was issued.

The applicant commenced proceedings in the NSWSC seeking judicial review of the delegate’s decision. The application was dismissed and so the applicant appealed to the NSWCA, which allowed the appeal, and the matter was remitted to the registrar of the WCC.

The appeal was determined on the papers by the MAP. The MAP revoked the MAC and issued a new MAC assessing the appellant with 17% WPI.

Judgment

The AMS recorded a history that the appellant travelled to an RSL Club by herself approximately once a month and gambled on the poker machines.

The AMS largely agreed with the appellant’s qualified expert, Dr Rastogi but for his assessment of social and recreational activities. Dr Rastogi considered that the appellant was moderately impaired (class 3) as she does not get too involved in social activity and will only attend events with family. Conversely, the AMS considered she had a mild impairment (class 2) on the basis that she attended family activities, an RSL Club (by herself) typically once a month and would spend around an hour there, and that she sees one friend regularly.

The NSWCA determined that the grounds for appeal submitted by the appellant were ‘plainly arguable’ as the meaning of social and recreational activities per the Guidelines involved ‘some degree of interaction with others’.

The MAP agreed with the appellant’s submission that all PIRS classes for social and recreational activities concern interactions on a social and recreational basis. Accordingly the MAP determined that the AMS erred as he considered an irrelevant consideration – a solitary activity of attending an RSL club approximately once a month as a basis for his assessment of mild impairment (class 2).

The MAP observed that the respondent did not address the issue of irrelevant consideration.

The MAP also determined that the AMS erred as he characterised the appellant seeing one friend as relevant to the PIRS scale for social and recreational activity. However, the MAP specified that this falls within the separate category of social functioning.

The MAP reinforced the meaning of incorrect criteria as discussed by the NSWCA in Marina Pitsonis v Registrar of the Workers Compensation Commission applying the observations of Basten JA in Campbelltown City Council v Vegan when his Honour stated that it ‘must refer to such matters as the tests set out in the Guidelines, where they are applicable’.

The MAP determined that the matter required reassessment according to law per Drosd v Nominal Insurer, and that it was unnecessary to determine whether the MAC also contained a demonstrable error.

Reassessment 

The MAP considered that the appellant’s attendance at the RSL Club to play poker machines did not satisfy the meaning of an activity relevant to the PIRS category of social and recreational activities.

The only relevant activity for consideration in the PIRS category is that the appellant attends family activities around Christmas. On that basis, the MAP determined the appellant’s social and recreational activities as class 3.

The MAP rejected the respondent’s qualified expert, Dr Kaplan’s opinion on the basis that he did not consider the appropriate issues in his PIRS assessment of social and recreational activities. The MAP also did not accept the respondent’s submission that ‘evidence indicates that the worker occasionally attends social and recreational activities without a support person’ as the evidence indicated that the appellant engages in limited social interaction insofar as it falls within the category of social and recreational activities.

There were no submissions made in regards to travel and social functioning but the MAP commented on these assessments. It agreed with the AMS’ assessment for these categories on the basis that the appellant can travel to the RSL (class 2 travel), and that she had lost friendships, had separated from her husband and her children no longer live at home (class 4 social functioning).

The alteration to the PIRS assessment for social and recreational activities from class 2 to class 3 changed the assessment of permanent impairment to 17% WPI.

Implications

This decision reinforces the importance of analysing the various PIRS assessments in qualified medical reports in accordance with each of the class descriptors that are set out in the Guidelines when determining permanent impairment claims.

It also highlights that all issues raised in an application for an appeal of an AMS’s decision should be addressed in a notice of opposition.