Carroll v State of New South Wales (NSW Police Force) (NSWPICMP 2023)

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Key Takeaways

The Personal Injury Commission considers that a Medical Assessor’s exercise of clinical judgment and how a statement from an injured worker addressing the assessment itself is not fresh evidence for the purpose of s328(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

Brief Facts

The appellant suffered a psychological injury as a result of his employment as a police officer. The Medical Assessor assessed 9% WPI under the Psychiatric Impairment Rating Scale (PIRS). The Assessor assessed the appellant in class 2 for social and recreational activities.
The appellant appealed the Decision of a Medical Assessor relying on the following grounds of appeal under s327(3) of the 1998 Act:

• the assessment was made on the basis of incorrect criteria, and
• the MAC contains a demonstrable error.

The crux of the appeal was limited to the Medical Assessor’s assessment for social and recreational activities i.e. that the Medical Assessor should have assessed him in Class 3 for social and recreational activities.

The appellant sought to rely on a short statement in which he says that two aspects of the history recorded by the Medical Assessor were incorrect. He submitted that the evidence was not available and could not reasonably have been obtained before the assessment because it related to the conduct of the assessment.

Judgment

The Medical Appeal Panel determined that the statement should not be received on the appeal as it was not ‘fresh evidence’ or evidence that was unavailable to the party before the assessment pursuant to s328 (3) of the 1998 Act. The Medical Appeal Panel cited Petrovic v BC Serv No 14 Pty Limited¹ where Hoeben J noted that if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.

The Appeal Panel considered that the Medical Assessor was required to clinically assess the appellant as he presented on the day of the examination, taking into account his relevant medical history and all available relevant medical information. He was not required to agree with or choose between the assessments of other practitioners. The Appeal Panel referred to Campbell J who considered the categorisation of impairment in Ferguson v State of New South Wales (Ferguson)² and said that “more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”

The Appeal Panel also referred to Harrison AsJ who cited Ferguson in Parker v Select Civil Pty Ltd (Parker)³ and said:

“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. ...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...”

The Appeal Panel confirmed the Medical Assessment Certificate and stated that the assessment made by the Medical Assessor of a mild impairment was open to him in the exercise of his clinical judgment.

Implications

Appeals against the decisions of Medical Assessors should be reviewed critically to determine whether they seek to rely on ‘fresh evidence’ and/or evidence that was not otherwise available as at the time of the assessment or, solely matters relating to a Medical Assessor’s exercise of clinical judgment.

¹ [2007] NSWSC 1156 at [31].
² [2017] NSWSC 887 at [24] - [25].
³ [2018] NSWSC 140 at [71].