Adamson v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 144
•6 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Adamson v State of New South Wales (NSW Police Force) & Anor [2025] NSWPICMP 144 |
| APPELLANT: | Benjamin Adamson |
| RESPONDENT: | State of New South Wales (NSW Fire and Rescue) |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 6 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under four of the psychiatric impairment rating scale (PIRS) categories; Held – Appeal Panel did not find error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 November 2024, the worker, Benjamin Adamson, (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mukesh Kumar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 October 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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.
The appellant requested that he undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. However, as a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error and absent a finding of error, the Appeal Panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
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, where relevant, 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.
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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 25 May 2023
· Body parts/systems referred: Psychiatric/psychological disorders
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition, or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | 25/5/23 | Chapter 11, page 54 to 60. | Chapter 14. | 19% | 19% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows: (emphasis in original)
“Table 11.8: PIRS Rating Form
| Name | Benjamin Adamson | Claim reference number (if known) | W3636/24 |
| DOB | xxxx | Age at time of injury | 44 |
| Date of Injury | 25 May 2023 | Occupation at time of injury | Retained firefighter |
| Date of Assessment | 20 September 2024 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. Posttraumatic stress disorder | 2. Persistent depressive disorder | |||||||||
| 3. alcohol use disorder | 4. | ||||||||||
| Psychiatric treatment | Sertraline 200 mg daily Mirtazapine 15 mg daily Melatonin 6 mg daily | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 |
| |||||||||
| Social and recreational activities | 3 |
| |||||||||
| Travel | 2 |
| |||||||||
| Social functioning | 2 |
| |||||||||
| Concentration, persistence and pace | 3 |
| |||||||||
| Employability | 5 |
| |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 5 | =2.5 rounded to 3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 17 | 19% | |||||
| Personal Impairment (%WPI) from Table 11.7 – Conversion Table | 19% |
| Less preexisting impairment (if any) | 0% |
| Adjustment for treatment effect | 0% |
| Total WPI | 19% |
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments he made under four of the PIRS categories:
(a) self-care and personal hygiene when he assessed a Class 2 and should have assessed a Class 3;
(b) in assessing Class 3 for social and recreational activities;
(c) in assessing Class 2 for social functioning, and
(d) in assessing Class 3 for concentration, persistence and pace.
The appellant further submitted that the Medical Assessor was in error when he found the appellant’s alcohol use disorder was in remission.
In summary, the respondent employer State of New South Wales (Fire and Rescue NSW) (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.
The Medical Assessor took a history which he recorded as follows: (emphasis in original)
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Adamson said that when he went to work for the police force, he had some experience working with the fire brigade, attending fatal accidents etc. He said that when he started work with the police, he was stationed at Coonabarabran along the newer highway. He said that there were a lot of fatal motor vehicle accidents, and he said that he recalls a period of 8 weeks where he had 6 fatal motor vehicle accidents. He said that he also recalls another period where he had 4 more motor vehicle accidents along the Tamworth Road in Gunnedah.
After he stopped work with the police from 2009 until 2012, he continued work with Fire and Rescue NSW. He said that he started to feel that he was not coping. He added that he asked to leave, however he was “talked into” staying. He said that he was seeing a counsellor at the time. Mr Adamson said that in 2012, he realized that he cannot continue work with Fire and Rescue anymore and stopped work. He said that he then went back to work as a mechanic in the mines. Mr Adamson said that he was drinking heavily at the time and said that he started seeing someone. He added that at the time, he saw two psychologists, Ms Melissa Scott and another psychologist Ms Heather Vernon. He said that around 2017 or 2018, he started seeing a psychiatrist. He reported that he had contact with the Tamworth mental health services in the outpatient department. Mr Adamson said that at the time, the psychiatrist told him that there was nothing wrong with him and that he had a bad upbringing.
He added that he was also asked to see counsellors and social workers. He said that he saw someone who accused him of trying to avoid them. He said that this person started harassing him and sent a letter to the GP stating that he had refused care. He added that at the time, he had difficulties with his phone reception, and he was not refusing care.
Mr Adamson said that finally he saw his GP, Dr Appleton, who he said knew straight way what was wrong with him. He said that he was then sent to the St John of God Hospital at Richmond. Mr Adamson said that at the time he was not sleeping and only had 2-4 hours a night and was drinking alcohol to get the sleep.
He added that he has had about 6-7 admissions to St John of God, and he has attended 3-4 different outpatient groups. The last admission was in January 2024, however he had to leave as he had Covid. He then went again to the hospital in February where he stayed for approximately 3 weeks. He said he also had brief contact with Tamworth mental health services due to thoughts of suicide. Mr Adamson said that in September 2022, he tried to gas himself in his shed however as his son came home, he therefore stopped. He then saw a doctor who sent him to the Tamworth mental health services. He said that he was placed in the Banksia mental health unit for a night. Mr Adamson said that at the time, the hospital did not realize the impact of this on his mental health as he was an ex-police officer and had taken other people to the same place.
He added that in May 2023, he had another suicide attempt. He said that he was found naked in a creek, trying to hang himself. He spent one night at the Tamworth mental health unit and was discharged into the care of his wife.
History of incidents:
Mr Adamson reported that towards the end of his career in Fire and Rescue, there was an incident along Tamworth Road. He said a traveler was travelling in a van. He said that his person stopped in Gunnedah to get coffee and as he drove out, he had a head-on collision with another vehicle. Mr Adamson said that when he reached the scene, he saw that this man had coffee spilt all over him. He said that he was doing fire protection around the vehicle in case the fuel ignited. Mr Adamson said that this person was dead in the front seat of his vehicle. He said that his van also had a sewage tank that spilt, causing a smell. He added that around the scene, there was also a dead animal on the side of the road. He said that he was a senior firefighter at the time and spent two hours doing fire protection.
Subsequent to this incident, he said that he still has difficulties with smelling instant coffee which he said is a trigger. He said that if he sees a roadkill, it also causes anxiety. Similarly, the smell of the sewage also causes him to have a flashback of this incident. He added that when he goes to Tamworth, he has to use the same road and this causes flashbacks of the incident and makes him agitated and angry.
He spoke about another incident, where there was a head-on collision. He said that he was not at this scene, however two people burned to death.
Mr Adamson said that a girl died in a single motor vehicle accident when her vehicle collided with a tree. He said that he knew this girl and grew up with her. By this time, Mr Adamson started crying and was noted to be visibly upset. He was advised that if he finds recalling these events distressing, he can stop and was also advised about the nature and reasons of the enquiries. Mr Adamson decided to continue with the assessment.
He said that the stretch of the road where he attended motor vehicle accidents is still difficult for him to navigate, however he said he cannot avoid it, as it is the only road to go to Tamworth for appointments etc.
He said that when he worked for Fire and Rescue NSW, his captain and deputy captain were “old school” and their attitude was to harden up and continue on. He added that one day, he was talking to one of his deputy captains and told them that he could not continue anymore and that it was affecting him and his family. He said that around the same time, the siren went off as it was another fatal. He added that he told them he could not do it, however he was still asked to continue. He added that this was possibly the incident of the man dying in the van.
Mr Adamson said that after such incidents, there is no debrief. He said that the only debrief is “beer fridge opening up.” Mr Adamson said that after this incident, he maybe had one phone call asking how he was.
In his time with the police, Mr Adamson spoke about an incident that occurred on the road. He said that it was a singe vehicle accident which hit a tree at high speed at night time. He said that the victim’s brain got out of the back of his head and landed on the tailgate of the ute. He said that he had to secure the crime scene, and foxes were trying to get to the body. He said that at one stage, he had to pick up the brain and put it back. Mr Adamson started crying again and was noted to be getting upset talking about these events. He said that if he sees a blue Falcon ute, it brings memories back of this incident.
He said that he realized again that he could not do these jobs again. He said that some of the bosses that he worked with at the police were good, however some of them were quite difficult to work with. He said that one of the police officers abused his wife, Leesa, over the phone after Mr Adamson was unable to come to work.
Mr Adamson reported that when he started working in the mines, he had a short temper which continued to become shorter and shorter. He said that he was not sleeping at the time. He added that he started doing day shifts only, however, he was still not sleeping at night and only had two or three hours of sleep. He said that he also started drinking to get himself to sleep.
Mr Adamson said that he also had shoulder injuries. He said that this was as a result of wear and tear, however there was a nightmare when he “dived” out of his bed and tackled the door which caused some nerve damage. He added that at jobs, he had a job where he had to lift a pipe, however he could not do it. He said that his symptoms continued with sleep difficulties, being short tempered, having nightmares etc. Eventually, he stopped work in 2020. He then had surgery on his shoulder in July 2020. Subsequent to this, he said he tried to get into a truck driving job, however he could only work for about 2 weeks in August 2020. He said that he had to stop this work because of his shoulder injury.
Last year, he said that he tried to get an ABN. He said that he thought that he may return to some kind of work, working as a mechanic for small engines. He said that though he got the ABN, he could not work on this ABN at all. He added that he has now sold all his tools and has not returned to work at all.
Treatment history:
Mr Adamson reported that he has been on the same antidepressant as above for the last 4 years. Prior to this, he said that for many years, he had been on antidepressants on and off, however he is unable to recall the names. He said that he has engaged in psychological therapy and described this as “exposure therapy.” He was not aware of any other trauma related therapy work.
· Present treatment:
Mr Adamson reported that he is on the following medications:
1. Sertraline 200 mg daily
2. Mirtazapine 15 mg daily
3. Melatonin 6 mg daily
Mr Adamson reported that he said that he also takes Vitamin D, Vitamin B as well as Rosuvastatin. He said that he also takes Nurofen for headaches. Mr Adamson reported that he was on Minipress 60 mg, however he has stopped taking this medication after Mirtazapine was started. He said that he has been advised by his psychiatry it take Minipress if he requires it in the dose of 2 mg nocte.
He reported that he sees a psychiatrist, Dr K Malick. The sessions are every week on a Tuesday. He said that he started seeing Dr Malick since 2020. He said that he also sees a psychologist, Ms Karlie McDonald. He sees Ms McDonald every fortnight. The sessions started in 2020.
· Present symptoms:
Mr Adamson described his mood as low. He said that he is still very anxious and gets startled easily and described himself as emotional. He said that he only gets about 4 hours of sleep at night with the medications. He said that there if there is a noise and he wakes up at night time, he may not be able to go back to sleep and often then sleeps between the hours of 9 AM and 11 AM. He said that he goes to bed between 9:30 PM and 10 PM and with medications, he is able to sleep within half an hour. He said he sleeps for about 4 hours continuously, after which he wakes up multiple items throughout the night, either because of loud noises in the street or as a result of a nightmare. Mr Adamson said that there are shift workers coming in at night time and this wakes him up.
He said that he still has nightmares and described these having a theme of “doom.” He gave an example where he dreams of a plane crashing on a hill and exploding with bits coming to him after which he wakes up. He said that another dream involves him being back at Tamworth Road, driving and hits a car. Other dreams involve things crashing around him and falling, such as buildings etc. He added that if he sees a plane in the daytime, he possibly has dreams of plane crashes.
He said that he still has ongoing flashbacks especially if he gets triggered, such as if he sees a blue Falcon ute or smelling instant coffee or going to Tamworth.
He says that he does not like drinking Nescafe. He added that in the mines, this was the most frequently bought coffee. He added that any loud noises such as bangs etc. Causes him to become extremely distressed and anxious. He said that if he trying to concentrate on something and someone is talking in the background, he “gets the shits.” He added that the vibrating noises of pagers also causes him anxiety as it reminds him of the pagers he carried when he worked for Fire and Rescue. He said that bad smells also cause him to have flashbacks of previous jobs. He said that sirens also cause him anxiety.
Mr Adamson said that he does not eat much, however his weight has fluctuated. In terms of risks, he says that he has had thoughts of going to sleep and not waking up, though he denied any specific plans of suicide or self-harm. He added that two incidents before of suicide have also scared him and he added that his wife and children are now a strong protective factor against such thoughts.
Substance use history:
Mr Adamson reported that he has not had any alcohol for the last two weeks. Before that, he said that he would only drink if he goes out for dinner which he described as going for birthday events of family members, approximately 5 or 6 times a year and each time he would drink between 6-8 beers. He said that last year, he relapsed with alcohol intake. He has been abstinent from alcohol from approximately 2 years, however after he had the ABN, he started drinking again. He said that usually he consumed alcohol on weekends and engaged in binge drinking which he described as drinking up to 12 beers at a time. He denied any smoking. He said he does not use any drugs, though added he was given CBD oil which he used until 2 years ago.
· Details of any previous or subsequent accidents, injuries or condition:
He denied any previous history of a psychiatric condition. He said that in the initial stages when he was seeing a psychologist, he was diagnosed with depression and anxiety, however gradually, his symptoms have become worse and he now has lost his gun license, his truck license and explosives license.
· General health:
Mr Adamson reported that he generally takes a nap between 9 AM and 11AM. He says that if he has an appointment the next day, he usually does not sleep the night before. He said that there is no set time for him to start the day. He added that most of the time, he does not do much. He watches YouTube. He says that he has 6 dogs, and he may “muck around with them.” He added that he spends time in his shed. He sweeps the shed or watches television. He added that he had a bike he used to tinker with, however he has now sold all the bikes as well as his tools. He said that he does not do much housework unless his wife has instructed him. On the weekends, he said that he may occasionally go to see his daughter play sports at Tamworth. He goes with his wife. Though his daughter plays every week, he said that he only goes on specific days. He added that he may mow the lawn or pull the weeds if his wife asks him to do that.
Last year, he said that around the time he had the ABN, he started to play rugby with his children, however he had an accident where he broke two vertebras in his back. He has not taken part in sporting activities since then.
· Work history including previous work history if relevant:
Mr Adamson reported that he started work with Fire and Rescue NSW in November 2004. He worked as a retained firefighter until November 2012. He then worked for NSW Police between January 2008 until May 2009 in the rank of probationary constable.
Mr Adamson reported that he started working for the mines between 2009 and worked until 2020. Within the mine work, he worked full time as a contractor operator. He said that he operated machinery. He worked in blasting as well as a diesel mechanic and a trainer. He added that he was also subcontracted to work on certain mechanical tasks such as fixing tractors to other machinery.
· Social activities/ADL:
Self-Care and Personal Hygiene
Mr Adamson reported that he takes a shower daily and brushes his teeth daily. He changes his clothes every 2 days. He said that his wife does remind him at times to take shower, however, even if she does not remind him, he would still look after himself though may not be on a daily basis. He is able to do some simple housework.
Social and Recreational Activities
Mr Adamson said that he avoids social situations. He says that the only times he goes out would be for birthdays of his family such as his wife or his children. This occurs 5-6 times a year. He said that they go to the local pub, however he added that he drinks alcohol before they go and does not interact with anyone. Mr Adamson said that about 20km away, he has a friend who he described as a police officer. He said that about once a month, he may go up to the farm and sit around a campfire. He said that he has lost interest in activities he used to enjoy before such as racing mountain bikes, being fit, playing golf, going out to dinners or raffles, attending kids’ sports, riding his motorbike, going to the gym etc. He added that all these activities have now stopped.
Travel
Mr Adamson said that he is able to travel in his local area in Gunnedah, however if he has an appointment he has to go to Tamworth, Newcastle, or Sydney, he has to be accompanied by his wife. More recently, he travelled to Fiji with his family including his daughters as well as his police officer friend. He added that he was drinking alcohol on the plane while travelling to Fiji and coming back to Australia. He said that he did not do anything apart from drinking alcohol, though added that one time, he swam to an island at nighttime, approximately 140m away.
Social Functioning
Mr Adamson reported that his relationship with his wife is “testing” at times. He said that there have been times of arguments and fights between them, however, there have been no periods of separation. He added that he does not have any friends except for the ones that live close by.
Concentration, Persistence and Pace
Mr Adamson reported that his concentration is “pretty poor.” He said that his memory is not good. He says that at times, he gets up from the lounge and goes to another room and forgets what he is there for. He has difficulty watching through his football matches or TV shows. He says that when he speaks to people on the phone, it has to be quick as he zones out. He said he watches YouTube videos however these are short and are around his interests, such as bikes, football etc. He said that he was looking at mechanical manuals, however he said that often he looks at bike magazines such as changes to the GP bikes, however he is not able to focus on them for long. He added that when he reads, he can only read one or two pages a at a time.
Employability
Mr Adamson has no capacity for work. This is in context of severe symptoms such poor concentration, lack of motivation, as well as other symptoms described above.”
The Appeal Panel is satisfied that an adequately detailed history was taken, which is broadly consistent with the other evidence before the Medical Assessor. Medical Assessors have to obtain a focussed history and undertake a mental state assessment within a finite appointment time.
The Medical Assessor recorded his findings on mental state examination as follows:
“Mental state examination:
Mr Adamson presented as a middle-aged man of average build. The examination was conducted through video conferencing. He was dressed in a T-shirt. He had long hair and a beard. His overall grooming and hygiene appeared fair. He was easy to engage in a conversation, however there were times when he found the assessment difficult especially talking about past traumatic events which made him visibly upset and distressed. His speech was normal. He was otherwise able to participate in the assessment and was able to provide an account of his condition and his employment. He described his mood as anxious and emotional. His affect was teary and dysphoric. There were no formal thought disorders. There were no thoughts, plans or intentions of self-harm or suicide. There were no psychotic symptoms.”
The Medical Assessor summarised the injury and his diagnosis as follows: (emphasis in original)
“● summary of injuries and diagnoses:
Mr Adamson suffers from the following conditions:
1. Post traumatic stress disorder
2. Persistent depressive disorder
3. Alcohol use disorder in early remission.
Rationale for diagnosis:
Posttraumatic stress disorder:
The post-traumatic stress disorder is in context of workplace traumatic events (Criteria A). Some of these events are described in the section of history above. He presents with intrusion symptoms, avoidance behaviour, alterations in cognition and mood as well as arousal and reactivity. (Criteria B, C, D and E). The symptoms are described in detail in the section of symptoms above. The symptoms have been present for more than a month and have caused clinically significant impairments in several areas of functioning. (Criteria F and G) The symptoms are not due to any substance use or any other medical condition. (Criteria H).
The following are the diagnostic criteria for a post traumatic stress disorder, according to DSM 5:
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1. Directly experiencing the traumatic event(s)
2. Witnessing, in person, the event(s) as it occurred to others.
3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains: police officers repeatedly exposed to details of child abuse).
B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
2. Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
3. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)
4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” ‘The world is completely dangerous,” “My whole nervous system is permanently ruined”).
3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5. Markedly diminished interest or participation in significant activities.
6. Feelings of detachment or estrangement from others.
7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).
E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
2. Reckless or self-destructive behavior.
3. Hypervigilance.
4. Exaggerated startle response.
5. Problems with concentration.
6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.
Persistent depressive disorder:
He has depressed mood for most of the day, for most days than not for over 2 years. (Criteria A). He also has symptoms of disturbed sleep, appetite, low energy and fatigue, poor concentration and feelings of hopelessness. (Criteria B). During the last two years, He has never been without the symptoms in criteria A and B for more than two months at a time. (Criteria C). He has had symptoms of major depressive disorder and in my opinion, has met the criteria for this condition continuously for the last 2 years. (Criteria D). There is no history of any manic or hypomanic episode. (Criteria E). The symptoms are not better explained by any other psychiatric condition. (Criteria F). The symptoms are not due to any physiological effects of a substance or another medical condition. (Criteria G). The symptoms have caused clinically significant distress as well as impairment in several areas of functioning. (Criteria H).
The following are the diagnostic criteria for this condition, based on DSM 5
A. Depressed mood for most of the day, for more days than not, as indicated by subjective account or observation by others, for at least 2 years.
B. Presence, while depressed, of two (or more) of the following:
1. Poor appetite or overeating.
2. Insomnia or hypersomnia.
3. Low energy or fatigue.
4. Low self-esteem.
5. Poor concentration or difficulty making decisions.
6. Feelings of hopelessness.
C. During the 2-year period (1 year for children or adolescents) of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time
D. Criteria for a major depressive disorder may be continuously present for 2 years.
E. There has never been a manic episode or a hypomanic episode, and criteria have never been met for cyclothymic disorder
F. The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specified or unspecified schizophrenia spectrum and other psychotic disorder.
G. The symptoms are not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g., hypothyroidism).
H. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning
Alcohol use disorder:
Mr Adamson reports that he has not had any alcohol in the last 2 weeks. Prior to this, he was drinking sporadically, though there is a history of heavy alcohol intake. The alcohol use disorder is now classified as “in early remission” according to DSM 5 TR.
The following are the diagnostic criteria for alcohol use disorder, according to DSM 5 TR:
A. A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period:
1. Alcohol is often taken in larger amounts or over a longer period than was intended.
2. There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
3. A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
4. Craving, or a strong desire or urge to use alcohol.
5. Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home.
6. Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
7. Important social, occupational, or recreational activities are given up or reduced be cause of alcohol use.
8. Recurrent alcohol use in situations in which it is physically hazardous.
9. Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
10.Tolerance, as defined by either of the following:
1. A need for markedly increased amounts of alcohol to achieve intoxication or de sired effect.
2. A markedly diminished effect with continued use of the same amount of alcohol.
11.Withdrawal, as manifested by either of the following:
1. The characteristic withdrawal syndrome for alcohol (refer to Criteria A and B of the criteria set for alcohol withdrawal, pp. 499-500).
2. Alcohol (or a closely related substance, such as a benzodiazepine) is taken to relieve or avoid withdrawal symptoms.
Specifier:
In early remission: After full criteria for alcohol use disorder were previously met, none of the criteria for alcohol use disorder have been met for at least 3 months but for less than 12 months (with the exception that Criterion A4, “Craving, or a strong desire or urge to use alcohol,” may be met).
· consistency of presentation
Mr Adamson was able to provide a consistent account of the workplace incidents, the symptoms and his condition. He was able to provide a clear account of the treatment as well as his functioning including the impact of the workplace events on his physical and mental health.
Mr Adamson reported that though he had applied for an ABN, he never worked on this ABN. He acknowledged that he tried to participate in his son’s rugby game and was injured. He also reported that he had travelled to Fiji with his family, however he reported that he did not participate in any recreational activity, apart from swimming to an island at night time.”
The appellant contended that the Medical Assessor was in error when he found that the appellant’s alcohol use disorder was in early remission. The Appeal Panel notes that this finding was not based upon correct criteria and the appellant’s alcohol use disorder could not be considered to be in early remission according to DSM-5 TR criteria. However the mischaracterisation of the alcohol use disorder as being in early remission does not infect the assessment of overall impairment made by the medical assessor under the PIRS categories.
The Medical Assessor made an assessment of WPI in accordance with his assessment under the six PIRS categories as set out above.
The Medical Assessor made brief comment on the other opinions as follows: (emphasis in original)
“Report of Dr AP McClure, psychiatrist, dated 6 February 2024:
The worker has continuing and significant symptoms of Post-Traumatic Stress Disorder with co-morbid Major Depression and Alcohol Abuse. These conditions have been caused by the multiple traumatic exposure he experienced during his service with the NSW Police and Fire & Rescue NSW.
Records of Dr M K Malik, psychiatrist:
There are several records that document the diagnosis of PTSD.
Report of Dr Martin Allan, psychiatrist:
I have diagnosed posttraumatic stress disorder, major depressive disorder and alcohol misuse disorder.
Comments:
Though I agree with a diagnosis of Posttraumatic stress disorder, I believe that the depressive symptoms constitute a diagnosis of persistent depressive disorder, due to the duration of time that has passed, with episodes of major depressive disorder.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The appellant complains that the Medical Assessor has erred in respect of four out of the six categories assessed, namely Self-care and Personal Hygiene, Social and Recreational Activities, Social Functioning, and Concentration, Persistence and Pace.
However despite complaining about the above four assessments, the appellant has only fully addressed in submissions where the Medical Assessor is alleged to have erred in respect of self care and personal hygiene.
The Appeal Panel notes that the expert qualified on behalf of the appellant Dr Allen, made the same assessments as the Medical Assessor did in respect of Social and Recreational Activities, Social Functioning, and Concentration, Persistence and Pace.
Noting that the total impairment assessed by the Medical Assessor was 19% WPI and
Dr Allen in a report dated 14 November 2023 assessed 26% WPI, the appellant submitted that it is inconceivable that there could have been such an improvement in the appellant’s condition when in fact it is submitted that there has been a deterioration and that the Medical Assessor has failed to address the discrepancy in the overall assessments of impairment.This submission misconceives the assessment process. The Medical Assessor does not have to explain why his opinion as to total WPI assessed differs from that the total impairment assessed by an independent medical expert whose report is in evidence. What the Medical Assessor has to do is conduct an independent assessment on the day of assessment using his clinical expertise and to assess impairment in each of the six PIRS categories in accordance with the correct criteria in the guidelines. This is exactly what the Medical Assessor has done here.
The MAC must be read as a whole. The Appeal Panel cannot interfere with these ratings absent error by the Medical Assessor. The Appeal Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Appeal Panel will deal with each category complained about on appeal in turn.
In respect of self care and personal hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4
Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5
Totally impaired: Needs assistance with basic functions, such as feeding and toileting.
The Medical Assessor rated a mild impairment at Class 2 with the following reasoning:
“Mr Adamson reported that he takes a shower daily and brushes his teeth daily. He changes his clothes every 2 days. He said that his wife does remind him at times to take shower, however, even if she does not remind him, he would still look after himself though may not be on a daily basis.
He is able to do some simple housework.
Impairment in this domain is class 2.”
The appellant submitted that a Class 3 should have been assessed.
The Appeal Panel is not satisfied that an error was made in the assessment of Class 2 or a mild impairment. The Medical Assessor has taken an adequate history and appropriately addressed the correct criteria for assessing a mild impairment, and there is no indication on the history taken on the day of examination that the appellant cannot care for himself adequately and live independently. The appellant relies on the assessment of Dr Allen who was the IME qualified to provide an opinion on his behalf dated 14 November 2023. Dr Allen assessed a Class 3 impairment in this domain. However the Medical Assessor’s role is to make an independent assessment on the day of examination using his clinical judgement and in accordance with the correct criteria in the Guidelines. The Appeal Panel can discern no error in the assessment made by the medical assessor of a mild impairment (Class 2) in this domain.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5
Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Medical Assessor assessed a moderate impairment at Class 3 with the following reasoning:
“● Mr Adamson said that he avoids social situations. He says that the only times he goes out would be for birthdays of his family such as his wife or his children. This occurs 5-6 times a year. He said that they go to the local pub, however he added that he drinks alcohol before they go and does not interact with anyone.
· Mr Adamson said that about 20km away, he has a friend who he described as a police officer. He said that about once a month, he may go up to the farm and sit around a campfire.
· He said that he has lost interest in activities he used to enjoy before such as racing mountain bikes, being fit, playing golf, going out to dinners or raffles, attending kids’ sports, riding his motorbike, going to the gym etc. He added that all these activities have now stopped.
· Impairment in this domain is class 3.”
The appellant made no submissions as to any other Class that should have been assessed.
The Appeal Panel considers there is no error in the rating of a moderate impairment. In any event the Appeal Panel notes that this accords with the assessment by Dr Allan (the IME qualified to provide an opinion on behalf of the appellant) in his report dated
14 November 2023.In respect of Social Functioning, Table 11.4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4
Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The Medical Assessor assessed Class 2 with the following reasoning:
“● Mr Adamson reported that his relationship with his wife is “testing” at times. He said that there have been times of arguments and fights between them, however, there have been no periods of separation.
· He added that he does not have any friends except for the ones that live close by.
· Impairment in this domain is class 2”
The appellant did not make submission addressing where it is alleged that the Medical Assessor erred in assessing a mild impairment at Class 3.
The assessment by the Medical Assessor A accords clearly with Class 2. Social functioning is concerned with the quality of relationships. A mild impairment is the best fit as the appellant has maintained his relationship with his wife and although there is some tension and arguments at times, there have been no periods of separation. He maintains friendships with those who live close to him. While there has been some loss of friendships, this is consistent with the criteria for Class 2. The appeal panel can discern no error in the Class 2 rating.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| 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. |
| 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. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
The Medical Assessor assessed a Class 3 or moderate impairment with the following reasoning:
“Mr Adamson reported that his concentration is “pretty poor.” He said that his memory is not good. He says that at times, he gets up from the lounge and goes to another room and forgets what he is there for.
He has difficulty watching through his football matches or TV shows.
He says that when he speaks to people on the phone, it has to be quick as he zones out.
He said he watches YouTube videos however these are short and are around his interests, such as bikes, football etc. He said that he was looking at mechanical manuals, however he said that often he looks at bike magazines such as changes to the GP bikes, however he is not able to focus on them for long.
He added that when he reads, he can only read one or two pages a at a time.
Impairment in this domain is class 3”
The appellant did not address in submission specifically where it is asserted that the Medical Assessor erred and nor did he submit as to a higher class rating that should have been assessed. The Appeal Panel notes that the assessment of Class 3 accords with that assessed by Dr Allan.
Assessment cannot be based on self-report alone, and the Medical Assessor must make an independent assessment on the day of examination using his clinical expertise. The Medical Assessor has based his assessment on the correct criteria and the Appeal Panel considers that an assessment of Class 3 is the best fit.
In summary, the contested classes of self care and personal hygiene, social and recreational activities, social functioning and concentration persistence and pace have all been confirmed on appeal.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 October 2024 should be confirmed.
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