Adams v State of New South Wales (Central Coast Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Adams v State of New South Wales (Central Coast Local Health District) [2023] NSWPICMP 483
APPELLANT:	Angela Adams
RESPONDENT:	State of New South Wales (Central Coast Local Health District)
APPEAL PANEL
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	29 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Worker alleges error by the Medical Assessor (MA) in finding a pre-existing psychiatric condition and in assigning Class I to the psychiatric impairment rating scale (PIRS) category of self-care; worker alleges that in finding a pre-existing condition the MA had misconstrued the evidence, failed to provide adequate reasons, and denied the worker procedural fairness; Wingfoot Australia Partners Pty Limited v. Kocak and re Minister for Immigration & Multicultural Affairs: ex parte Lam considered and applied; Held – that the appellant had not proven error; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 June 2023, Angela Adams (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
12 May 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 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.
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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was formerly employed by the State of New South Wales (Central Coast Local Health District) (the respondent) as a Whole Family Team Clinical Coordinator at Gosford. In the course of the appellant’s employment she experienced conflict with her supervisor and members of her team. She perceived that her “professional credibility was being questioned” and that she was excluded from meetings and communication between members of the team.
In June 2019, the appellant consulted her general practitioner (GP), Dr Ghali, who certified her as unfit for work and referred her to a psychologist, Neil Zandberg. She was diagnosed with an anxiety disorder. She has been unable to return to work.
On 18 September 2020, the appellant underwent quadruple coronary artery bypass surgery at the Royal North Shore Hospital. On 26 October 2020 she was discharged for outpatient rehabilitation through the Wyong Hospital.
While the respondent initially denied that that the appellant suffered a psychological injury as a result of her employment, it ultimately conceded liability to pay the applicant compensation in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 act).
On 12 October 2021, the appellant saw Dr Shannon Paisley, a consulting psychiatrist, at the request of her solicitor for the purpose of assessing whole person impairment (WPI) resulting from the psychological injury. Dr Paisley assessed the appellant in accordance with the psychiatric impairment rating scale (PIRS) in chapter 11 of the Guidelines. He expressed the opinion that the appellant suffered 19% WPI to which he added a further 1% to reflect the benefit the appellant received for the treatment effect.
On 9 August 2022, Dr Samson Roberts, a psychiatrist, provided a report to the respondent’s solicitor addressing WPI. Dr Roberts expressed the opinion that the appellant suffered “a pre-existing psychiatric disease”. He thought that the work circumstances described by her may have caused a deterioration of a pre-existing persistent depressive disorder. He expressed the opinion that she had not been adequately treated and had not reached maximum medical improvement. Accordingly, he declined to assess WPI.
The difference of opinion between Dr Paisley and Dr Roberts as to whether the appellant had reached maximum medical improvement and the degree of her WPI gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute for assessment by Dr Andrews. It is from his MAC that the appellant brings this appeal.

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 was unnecessary for the worker to undergo a further medical examination because. The panel noted that the appellant sought a re-examination by a member of the panel. However, as the panel was unable to find error in the MAC it was inappropriate for a member of the panel to conduct a re-examination: see Sydney Trains v Batshon.[1]
[1] [2021] NSWCA 143 (16 July 2021).

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The respondent sought to admit into evidence on the appeal a “Desktop Investigation” of the social media accounts of both the appellant and her then fiancée compiled by Procare Investigations dated 5 July 2023. It submitted that the contents of the report were relevant to the assessment of the PIRS categories, and particularly to an assessment of Self-care and personal Hygiene. It submitted that:
“the report was not available to it and could not have been reasonably obtained before the medical assessment appealed against, as it was obtained in the course of a separate claim involving the Appellant.”
The appellant opposes the admission of the evidence. Contrary to the respondent’s submission, she submits that the evidence could have been obtained prior to the medical assessment the subject of this appeal.
The appellant also submitted that the report had the capacity to “cause a significant injustice” as it did not clearly identify which of the matters within it “related directly to the applicant”. She also submitted that the photographs were “without context” and “therefore unreliable”. She also submitted that receipt of the evidence would cause “incurable prejudice” and constitute “a denial of procedural fairness”.
The Appeal Panel determined that the Desktop Investigation report of Procare Investigations dated 5 July 2023 should not be admitted into evidence. In the opinion of the Panel it was open to the respondent to obtain a desktop review of the appellant’s social media before the medical assessment. The respondent has, therefore, not established that the document could not reasonably have been obtained before the medical assessment as required by s 328(3) of the 1998 Act.
The Panel also accepted the appellant’s submission that the receipt of the evidence at this late stage would cause her prejudice. At the very least, it would cause a significant delay in the determination of the appeal to permit her to obtain and put on evidence relevant to the social media postings in the report.

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 given by the Medical Assessor 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 Panel.
In summary, the appellant submits that there is demonstrable error in the Medical Assessor’s finding that the appellant suffered from a pre-existing condition and in his determination that a deduction should be made pursuant to s 323 of the 1998 Act to reflect this condition. There are several different aspects of the alleged error. First, it is alleged that the Medical Assessor failed to explain the path of his reasoning in accordance with the instruction of the High Court in Wingfoot Australia Partners Pty Limited v Kocak.[2]
[2] (2013) 252 CLR 480 at [55].
The appellant argues that:
“Clinical note entries which reveal mental health struggles, does not automatically mean there is a pre-existing condition, particularly in circumstances of marital breakdown, family issues and loss of employment.”
The appellant submits that there was no evidence that she was ever diagnosed with a persistent depressive disorder at the time of the entries in the clinical notes. Further, the Medical Assessor “conflated” two “separate” diagnoses leaving the appellant to guess as to how he arrived at his opinion. As separate diagnoses of the pre-existing condition had been made “the actual deduction for the pre-existing injury has not been properly identified” in breach of cl 1.6 of the Guidelines.
Secondly, the appellant alleges that the Medical Assessor has misconstrued the evidence. She continues:
“The evidence supports the conclusion that the pre-injury treatment pertained to her rheumatoid arthritis as opposed to the sporadic entries in the clinical notes”.
She submits that Pristiq was prescribed for her rheumatoid arthritis rather than a pre-existing psychiatric condition. She submits that the process of reasoning utilised by the Medical Assessor was “flawed and unsupportable in relation to his finding as to the pre-existing injuries”.
Thirdly, the appellant maintains that she was denied procedural fairness in the determination of the issue of her pre-existing condition, as the Medical Assessor concluded that further questioning her in respect of the pre-existing condition “would be unlikely to clarify the issues”. Therefore, the Medical Assessor did not give the appellant the appropriate opportunity to respond in respect of whether the entries in the clinical record were consistent with a pre-existing condition.
Concerning the application of incorrect criteria, the appellant submits that the Medical Assessor erred in placing the appellant in Class 1 for Self-care and personal hygiene. She argued that there was “substantial evidence of prompting by her partner” throughout the evidence and no history taken by the Medical Assessor that was inconsistent with that evidence. The appellant continues:
“It is not within the normal variation of the general population to not shower and wear clean clothes. The Medical Assessor classification is also contrary to his finding that ‘she does some housekeeping but leaves most of the chores to her partner’. It is glaringly improbable that the classification attributed to Self-care and personal hygiene is correct in the circumstances.”
The respondent submits that the Medical Assessor’s reasons were adequate. In particular he had referred to entries in the clinical notes of the appellant’s treating (GP) over a long period of time, the regular prescription of high doses of Pristiq, and the opinions of the qualified specialists Dr Paisley and Dr Roberts before reaching his conclusion. For similar reasons, there was no misconstruction of the evidence. The appellant had been prescribed Pristiq prior to “being diagnosed with rheumatoid arthritis”. The respondent submitted that the appellant was given the opportunity to address the inconsistencies in the medical record. It was unnecessary to put every entry to her during a medical assessment.
In respect of the allegation that the Medical Assessor applied incorrect criteria in allocating Class 1 to the PIRS category of Self-care, the respondent submitted that such a classification was open on the evidence before him. The difference between the classification of Dr Paisley, the appellant’s qualified medical practitioner and the Medical Assessor on this issue was merely a “difference of opinion”. It submitted that a difference of opinion was not a proper basis to set aside a classification in a PIRS category.[3]
[3] Ferguson v State of NSW & Ors [2017] NSWSC 887.

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan,[4] 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.
[4] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[5] 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. However, in Versace v Australia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the Medical Assessor without first identifying error.
[5] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the Medical Assessor to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot[6] that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[6] [2013] HCA 43.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation are Legislation; see, for example, El Masri v Woolworths Ltd.[7]
[7] [2014] NSWSC 1344.
Central to the appellant’s argument that she did not suffer a pre-existing medical condition is the assertion that Pristiq was prescribed for rheumatoid arthritis. Pristiq is prescribed by medical practitioners for the treatment of major depressive disorder. It is not a treatment for rheumatoid arthritis. In the opinion of the Panel the prescription of Pristiq over a long period of time in this case is powerful evidence that the appellant suffered from a pre-existing psychological condition.
The second misconception that underpins the appellant’s submissions is that the Medical Assessor has provided two separate diagnoses of a pre-existing condition. There is no basis for such a submission. The doctor first concluded that there was a pre-existing “mood and anxiety disorder”. At paragraph 11(a) of the MAC, he expressed the opinion that the mood and anxiety disorder might be characterised as persistent depressive disorder with recurrent major depressive episodes and anxious distress for the purposes of Diagnostic and Statistical Manual of Mental Disorders (DSM-5). But even if this was not the case there is no inherent contradiction in the terminology adopted by the Medical Assessor which gives rise to any doubt as to his diagnosis or his finding of a pre-existing condition.
It must be borne in mind that Dr Roberts also considered the entries in the records of the appellant’s general practitioners. He summarised the relevant notes by stating that:
“She was maintained on the antidepressant medication Desvenlafaxine, a serotonin noradrenaline reuptake inhibitor, at a dose of 200mg daily for at least 4 years prior to the subject circumstances.”
Dr Roberts continued.
“The history derived from the clinical documents is markedly at odds with the information provided by Ms Adams at interview, especially with respect to her past psychiatric history. At interview, she reported that while she had been prescribed antidepressant medication when she was diagnosed with rheumatoid arthritis, she was not suffering from any psychiatric symptoms. However, it is apparent that Ms Adams was on the antidepressant Desvenlafaxine at a dose of 200mg daily since 2015 prior to which she had been on Agomelatine.
Whilst doses of Pristiq greater than 200mg are sometimes used in clinical practice, the dose prescribed to Ms Adams represents the maximum dose recommended by the manufacturer and it represents the maximum dose that would usually be prescribed in general practice. Namely, it is apparent that her treating general practitioner considered her depression to be of sufficient severity as to warrant Pristiq 200mg. A review of the symptoms documented by her general practitioner at the time reflects the prominence of mood and anxiety symptoms. It is also apparent that Pristiq was maintained unchanged even after Ms Adams experienced the workplace circumstances to which she attributed the workers compensation claim.”
As both the Medical Assessor and Dr Roberts record, there are numerous references to anxiety in the clinical record. There are references to increase in anxiety following “harassment” in the workplace on 7 August 2015 and a panic attack following the termination of her employment on 12 January 2017. It is unnecessary to refer to each of the entries for the purposes of this appeal. They are set out in the MAC and in the report of Dr Roberts. While Dr Paisley has reached a different conclusion, his brief account of the appellant’s past psychiatric history is not consonant with the clinical record.
The specialist psychiatrist on the panel noted the similarity between the appellant’s past symptoms when confronted with employment stresses and her symptoms following the injury. The pattern suggests a recrudescence of a long-standing condition at the time of the work injury. It is almost certain, as the Medical Assessor concluded, that long-standing condition made a significant contribution to the impairment resulting from the injury.

In addressing the reduction for a pre-existing condition, the Medical Assessor said this:
“Ms Adams had a pre-existing mental health condition that could be characterised as a persistent depressive disorder with recurrent major depressive episodes and anxious distress. Her first depression occurred when she was an adolescent and she had a recurrence in 1998 when her marriage failed; she took Paroxetine. She was on antidepressant medication from at least 2014, generally at a high dose, that continued unchanged through to 2019, when her general practitioner prescribed Fluoxetine, presumably because of poor progress. Although Ms Adams maintains that she went on medication to assist her in coping with the diagnosis of rheumatoid arthritis, her medical history supports a diagnosis of an ongoing mood and anxiety disorder beyond that of an adjustment disorder.”
The insertion of the word “nil” in paragraph 11(b) is a clerical error or an error of transcription. It is not a demonstrable error as it is patently clear from the MAC that the Medical Assessor intended to make a deduction. There is no demonstrable error in the Medical Assessor’s approach to this issue. He has not misconstrued the evidence. As demonstrated above, there was a clear evidentiary basis for his opinion for his findings and the deduction in the clinical notes of the appellant’s treating doctors. The path of his reasoning is readily apparent to the panel and on a fair reading of the MAC should be well understood by the parties.
The third ground of criticism of the Medical Assessor is that he did not afford the appellant procedural fairness. It is evident from the MAC that the Medical Assessor raised with the appellant her previous psychological history recorded in the clinical notes of her GP. He states:
“I read segments of these records to her seeking her comment. She continued to minimise the extent of the difficulties. Evidence exists that she consulted several general practitioners over many years.”
It is trite law that the content of the principle of procedural fairness is variable. In re Minister for Immigration & Multicultural Affairs: ex parte Lam[8]. Gleeson CJ stated that the “concern of the law is to avoid practical injustice”.
[8] (2003) 214 CLR 1 pp 13-14.
In drawing the appellant’s attention to her clinical history, the Medical Assessor provided her with ample opportunity to explain the inconsistencies between her account and the clinical record. He did not accept her explanation. However, it cannot be asserted that he denied her the opportunity to be heard on this issue. The Medical Assessor is a medical practitioner who has been asked to provide an opinion. While he has an obligation to provide procedural fairness as do all decision-makers, it cannot be expected that he will put to the appellant the content of each clinical note that may be inconsistent with her case. More so when the issue is plainly raised in the medical evidence exchanged between the parties.
The standard procedure of the Commission is to require a statement or statements by the worker be filed with an Application seeking compensation for permanent impairment. This evidence ought to address all relevant issues including any inconsistency arising from the clinical notes of medical practitioner’s filed with the application. It is also open to a worker to obtain and lodge a report from her general practitioners addressing apparent inconsistencies in their notes. In this case, the appellant ought to have been aware of the significance of the prior treatment with anti-depressant medication as Dr Roberts, the respondent’s IME, referred to it at length in his report. There was ample opportunity to address it. In these circumstances the Medical Assessor did not deny the appellant procedural fairness.
The final ground of appeal concerns the Medical Assessor’s classification of the PIRS category of Self-care and personal hygiene. The Medical Assessor gave these reasons for his decision:
“Ms Adams attends to hygiene, showering and wearing clean clothes most days. She presented herself as well-groomed at the assessment, with a colour rinse through her hair. She does some house cleaning but leaves most chores to her partner. She does most of the cooking and they shop together. She eats a good diet but has gained weight since leaving work, likely due to her reduced activity. She attends an exercise physiologist every three weeks and hydrotherapy weekly. She functions within the normal variation in the general population.”
The Medical Assessor also noted that Dr Paisley found a mild impairment in this category. He noted that he recorded that her partner “prompts her to exercise and maintain her routine”.
As is often the case, the account of a worker’s activities recorded by a medical specialist may overlap the descriptors prescribed for the various classes by the Guidelines. It is also true that there are often differences of opinion between medical practitioners as to the significance of this. On his comprehensive account of the appellant’s Self-care, it was open to the Medical Assessor to assign Class 1. Further, there is nothing in the MAC to suggest that the description of the appellant’s activities is erroneous or glaringly improbable. There is no demonstrable error.
The Medical Assessor was aware of Dr Paisley’s view. He considered it and chose to allocate Class 1 on the basis of the history that he recorded and the entirety of the evidence which he had considered in assessing the dispute. He was not obliged to give extensive reasons for rejecting other medical opinions as to the appropriate PIRS classification.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 May 2023 should be confirmed.

[2023] NSWPICMP 483

29 September 2023