Benson v Veritas House
[2024] NSWPICMP 456
•11 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Benson v Veritas House [2024] NSWPICMP 456 |
| APPELLANT: | Bradlee Benson |
| RESPONDENT: | Veritas House |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Doug Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 11 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of psychological injury; all four grounds of appeal under s 327(3) relied upon by appellant; no evidence of deterioration amount to a change in the degree of permanent impairment; application to admit fresh evidence rejected; consideration of psychiatric impairment rating scale (PIRS) of social functioning; concentration, persistence and pace; and employability; Held – demonstrable error made by Medical Assessor in relation to findings of inconsistency; worker had marriage and another relationship break down since injury; PIRS of social functioning revoked; other two PIRS confirmed; Medical Assessment Certificate revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 April 2024, Bradlee Benson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 March 2024.
The appellant relies on all four grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), being:
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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 (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)
RELEVANT FACTUAL BACKGROUND
Mr Benson was employed by Veritas House (the respondent) as a residential support worker. He was injured on 22 February 2019, when he was assaulted by a resident he was caring for. He was struck by an iPad and attacked with a butter knife, which did not break the skin. A few weeks after the incident Mr Benson noticed psychological symptoms associated with the incident. He has tried various treatment types including attendance with a psychiatrist, multiple psychologists, and various medications. He attempted to return to work but became suicidal.
He made a claim for lump sum compensation which was eventually referred to a Medical Assessor for assessment.
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 not necessary for the worker to undergo a further medical examination because there was sufficient information to determine the issues raised on appeal. It is noted that the appellant sought that a re-examination be conducted. The Appeal Panel have given consideration to that submission, but remain of the view that it is not necessary in the circumstances.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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 appellant seeks to admit the following evidence:
(a) Allied Health Recover request dated 13 March 2024;
(b) email correspondence between the appellant and the respondent’s insurer, EML, dated 5 April 2024;
(c) Icare workers compensation updated list of payments as at 2 April 2024, and
(d) email correspondence from the appellant to EML dated 9 April 2024.
The appellant submits that the evidence is of a medical kind or directly related to the decision required to be made by the Medical Assessor, with reference to Petrovic v BC Serv No 14 Pty Limited and Ors [2007] NSWSC 1156 (Petrovic). The appellant submits that the evidence demonstrates an ongoing need for significant support, shows deterioration in the appellant’s condition, and highlights the lack of a clear path of reasoning provided by the Medical Assessor.
The respondent submits that the material should not be received on appeal as it has no probative value to the present issue. The respondent further submits that there was nothing preventing the appellant form obtaining update medical evidence prior to the assessment and the worker should be prevented from challenging the history recorded by the Medical Assessor, absent special circumstances.
The Appeal Panel determines that the evidence should not be received on the appeal.
The appellant’s submissions do not address the requirement that the evidence relied upon “was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment”.
The Allied Health Recovery Request is dated 13 March 2024 (the same day the MAC was issued, but after Mr Benson was examined by the Medical Assessor) and is provided by Krista Hawke, who has been treating the appellant for an extensive period of time. The clinical notes of Ms Hawke appear in the Application to Resolve a Dispute. There is also at least one other Allied Health Recovery Request completed by Ms Hawke attached to the Reply, and it appears that the present request is the sixth in such series. The material includes a history of test results under the Depression, Anxiety and Stress Scale (DASS) 21 which show a similar score dating back to 1 February 2022.
Although the material post-dates the MAC and thus satisfies the requirement that it was not available to the appellant before the medical assessment, the appellant has not explained why the material could not have been obtained. The appellant had the opportunity to attend upon Ms Hawke to produce additional material prior to the medical assessment (subject to considerations of the admissibility of that material in proceedings). The material could have been reasonably obtained before the medical assessment.
Further, the material is not “additional” as it largely consistent with the earlier observations of Ms Hawke and contains information, including testing results, that extend back well before the medical assessment. Accordingly, it is of little probative value and does not constitute fresh evidence.
In addition, the material does not comply with s 327(3)(b) as it restates evidence already given, per Adamson J in Cortese v Cumberland Ford Pty Ltd & Ors [2011] NSWSC 1260:
“Secondly, it cannot be the case that evidence falls within s 327(3)(b) if all it does is to restate evidence given before on the basis that if it had been put a different way it would have been accepted.”
The material does not evidence a deterioration as contemplated by the legislation, which is “an inherently relational concept” that concerns the degree of impairment. This was outlined in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 (Riverina Wines) at [94]:
“‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.” (emphasis in original)
There is no evidence of an increase in the degree of permanent impairment.
The appellant also relies upon email correspondence between Mr Benson and EML. Mr Benson describes a “near suicide attempt” and a request for transport from NSW to Brisbane for continuing attendance on esketamine sessions, as well as a record of payments.
The former is an email and has no probative value. It is not clear what the purpose of the emails is. The appellant’s submissions largely address the request of Ms Hawke and make a general submission that the additional information provide evidence of the significant ongoing impairment suffered by the appellant. The Appeal Panel notes that the medical evidence suggests Mr Benson has previously been suicidal and is of the view that this is an inherent part of the conditions from which he suffers, including his borderline personality disorder. The Medical Assessor comments on this on page 2 of the MAC, describing 10-15 suicide attempts.
The latter is evidence of continuing payments which the respondent does not deny and is not relevant the Appeal Panel’s consideration of whether the assessment was made on the basis of incorrect criteria or the MAC contains a demonstrable error.
Accordingly, the Appeal Panel declines to admit the further evidence and will not consider it as part of the appeal.
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.
In summary, the appellant submits that the Medical Assessor has commented that Mr Benson was exaggerating symptoms but has not explained what symptoms were exaggerated or how that has impacted the assessment of impairment. The appellant submits that this insufficient path of reasoning has affected the Psychiatric Impairment Rating Scales (PIRS) of social functioning; concentration, persistence and pace; and employability.
The appellant explicitly refers to the assessment of social functioning, which was assessed at class 2 by the Medical Assessor, in contrast with Dr Snowdon (who assessed class 4) and Dr Grama (who assessed class 3). This was in spite of the well-recorded factual history that the appellant’s marriage broke down due to the impacts of his work injury.
The appellant submits that “similar concerns are held” in relation to the other two categories mentioned above, although no submissions are made addressing those categories specifically.
In response, the respondent opposes the appeal, noting that there has to be more than a difference of opinion to constitute a demonstrable error, with reference to Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 and Glenn William Parker v Select Civil Pty Ltd [2018] NSWSC 140. The respondent’s submissions refer to the competing medical opinions provided by the parties.
The respondent submits that in finding an exaggeration, the Medical Assessor was comparing the incorrect report of history given at the assessment with the objective treating clinical records. The respondent submits that the appellant’s marriage broke down due to his partner’s dissatisfaction with his symptoms rather than the appellant’s ability to maintain it, and it is noted that the appellant’s partner also suffered a mental illness. The appellant’s promiscuity was also referred to. The respondent also suggested, with reference to the additional relevant information, that the appellant had entered into a new relationship.
The respondent notes that the appellant attempted to deny suffering from any pre-existing injury, abnormality or illness to the Medical Assessor, but noted the pre-existing complex post-traumatic stress disorder due to childhood trauma.
The respondent submits that the reasons provided are sufficient, and the fact that this does not correlate with the appellant’s independent medical expert is irrelevant.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 appellant relies on all four grounds for appeal set out in s 327(3) of the 1998 Act. The Appeal Panel has dealt with ground (b), being the availability of additional relevant information, above. We have declined to admit the further under s 328(3) of the 1998 Act as “fresh evidence”, and for the same reasons, would not be satisfied that ground for appeal relied on by the appellant would be made out.
The appellant also indicates that he relies on the ground of appeal deterioration under s 327(3)(a). No submissions have been provided in support. There is no evidence of “deterioration from the degree of permanent impairment that has been certified in the MAC” as envisioned in Riverina Wines. There is no assessment of impairment on which to base this ground of appeal. There is, accordingly, no basis to suggest that this ground of appeal could be made out.
The substance of the appeal really concerns the allegations of error in the Medical Assessor’s assessment of the PIRS categories. At the crux of this allegation or identification of error is the submission that the Medical Assessor failed to provide adequate reasons for the conclusion he reached. On page 6 of the MAC, the Medical Assessor records:
“There was some inconsistency at times in the information given by Mr Benson and he was exaggerating the symptoms and history provided. This has been noted in previous assessments as well.”
The appellant refers to 1.36 of the Guidelines which provides:
“Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.
This paragraph applies to inconsistent presentation only.”
The Appeal Panel accepts that there is a degree of ambiguity in the Medical Assessor’s reasons that amounts to a demonstrable error. The Medical Assessor indicates that there were inconsistencies present but does not explain those inconsistencies, or where they have been noted previously. It is also unclear as to how those inconsistencies have impacted on the Medical Assessor’s assessment of impairment under the PIRS. On that basis, the Appeal Panel is satisfied that the MAC contains a demonstrable error and accordingly the Appeal Panel will review the MAC, limited to the grounds of appeal challenged by the appellant, that is limited to the three PIRS as set out in the appellant’s submissions. The Appeal Panel is satisfied that the Medical Assessor has otherwise taken a sufficient history, when combined with the material available before the Medical Assessor, to allow the Appeal Panel to appropriately consider the correct classification under the PIRS without conducting a re-examination.
The Appeal Panel will consider each of the challenged PIRS in turn.
Social functioning
This is the only PIRS that the appellant has specifically addressed in submissions. The Medical Assessor provides the following reasons in assessing Mr Benson in class 2:
“Mr Benson was married in 2014 which ended in 2019, after the injury. He said ‘I was sleeping with different girls for a year and a half, and is not seeing anyone now’. He is scared to have a relationship, he was with his ex for 3 years, and she couldn’t handle him. He lives in a 4 bedroom house, there are friends in other rooms, and he has one room for self.”
It is noted that Dr Grama for the respondent assessed class 3 in this PIRS, whilst the appellant’s independent medical expert, Dr Snowdon, provided an assessment of class 4. Dr Grama attributed this to the appellant’s wife begin dissatisfied with his symptoms rather than his inability to maintain it. The respondent in their submissions has relied on this, suggesting it is consistent with the Medical Assessor.
The Guidelines provide the following for class 2 in this PIRS:
“Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Whilst class 3 provides:
“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, which was assessed by the appellant’s Independent Medical Expert (IME), provides:
“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).”
The Medical Assessor has taken a history of a relationship breakdown which resulted in the appellant’s marriage ending in 2019, after the injury. The Appeal Panel accepts the appellant’s submissions that the Medical Assessor has provided insufficient reasons for assessing the worker in class 2 in the presence of a marriage breakdown. This constitutes a demonstrable error.
It is also likely that the Medical Assessor has made his assessment on the basis of incorrect criteria, as he states he “was with his ex for 3 years, and she couldn’t handle him”. This is similar to the explanation provided by Dr Grama who recorded “The pre-existing relationship with his wife ended rather as a consequence of his partner’s dissatisfaction with his symptoms rather than his inability to maintain it.”
In the Appeal Panel’s view, the Medical Assessor has incorrectly applied the Guidelines. There is no differentiation in the Guidelines between the cause of a separation, whether it be due to a worker being unable to contribute meaningfully to a relationship, or a partner being dissatisfied with the symptomatic presentation of a worker. The fact of the matter is, in present circumstances, Mr Benson’s marriage broke down following his work injury. Whether it occurred at the behest of his partner due to his changed personality as a result of that psychiatric injury and the symptoms arising out of it, or as a result of Mr Benson being unable to manage it due to his psychological symptoms, is irrelevant. The Guidelines do not differentiate and it is the Appeal Panel’s view that both circumstances are “as a result of injury”. The answer may be different where there is an unrelated cause for the relationship breakdown, but that is not the case here and to postulate would be hypothetical.
In present circumstances, two relationships have failed following the work injury, and Mr Benson gave a history to the Medical Assessor that he is “scared to have a relationship”. On the other hand, Mr Benson is living with friends, suggestive of a degree of ability to maintain established relationships. Accordingly, the Appeal Panel finds that Mr Benson fits in class 3 impairment for social functioning.
Concentration, persistence and pace
The appellant does not address any specific submissions to this ground as he did in relation to social functioning, but rather indicates that the same concerns are held relating to the path of reasons provided by the Medical Assessor.
The Medical Assessor provides the following reasons for assessing class 2 in this PIRS:
“Mr Benson paces a lot, has been using music which helps him to relax and calm down, forgets what people are talking about sometimes, couldn’t just do one thing, and gets distracted. He always reads on internets and online, about treatments and topics related to health. He may read 20 -30 minutes, couldn’t do Flourish, and did a fast track barber course.”
The criteria for class 2 impairment are provided in the Guidelines as:
“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.”
Whilst class 3 provides:
“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.”
There is a degree of cavilling at matters of clinical judgement in relation to this ground of appeal. The appellant’s submissions do not explain how the lack of reasons relating to a finding of inconsistency has affected this PIRS. It is noted that the appellant’s independent medical expert assessed a higher class of impairment in this PIRS (as he did with the remaining PIRS, employability), which may have influenced the appellant’s decision to challenge this aspect of the assessment. It is not clear, absent any submissions in support, what the basis of this appeal is said to be.
The Appeal Panel have reviewed the reasons provided by the Medical Assessor in relation to this PIRS and consider them adequate and consistent with the class 2 impairment assessed. Even Dr Snowdon, relied upon by the appellant, notes that the assessment was difficult because of the appellant’s “description of vast differences in capacity to concentrate, depending on his condition at the time”. The assessment of impairment “involves clinical assessment of the claimant as they present on the day of assessment”. In circumstances where Mr Benson’s capacity within this PIRS varies considerably, as reported in the medical evidence, the Medical Assessor’s decision to provide an assessment of class 2 in this PIRS was the correct application of criteria and does not provide a basis for conclusion that he made a demonstrable error.
The Medical Assessor has taken a history of a capacity to concentrate on certain matters for up to 20-30 minutes, with a tendency to get distracted. This is consistent with an ability to undertake a basic course at a slower pace. On this basis, the finding of class 2 will be confirmed.
This finding can be differentiated from that as set out in relation to social functioning, where the finding made by the Medical Assessor was inconsistent with the history he took and not open to him on the criteria in that PIRS.
Employability
Again, on this PIRS the appellant provides no specific submissions as to why the Medical Assessor has erred in his assessment, or how the accepted error in relation to consistency has infected the conclusion reached in the PIRS. The Appeal Panel can thus only postulate, but are required to consider this ground as the appellant has challenged the assessment made.
The Medical Assessor assessed Mr Benson as class 4 for employability and provides the following reasons:
“Mr Benson wishes to work, cries some days that he can’t work, got a job as a barber in 2022, where he worked for 6 -8 months, gave up due to nightmares, ended up being suicidal in hospital (was doing drugs and alcohol), and tried to kill himself few times. He cannot work more than one or two days at a time, less than 20 hours per fortnight.”
The criteria for class 4 in this PIRS is:
“Severe impairment: Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
To qualify for class 5 impairment, a person must be “Totally impaired: Cannot work at all.”
Based on the history taken by the Medical Assessor of a desire to work, combined with his previous capacity to retrain successfully as a barber, it is the Appeal Panel’s view that a finding of class 4 made on the day of examination was not an application of incorrect criteria by the Medical Assessor, nor does it show that the MAC contains a demonstrable error.
The Medical Assessor’s reasons are sufficient to adequately show the path of reasoning he undertook in reaching his conclusion (per Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43). There has clearly been significant variation in functioning in relation to this PIRS over a period of time since the work injury, but as set out above, in assessing a worker the Medical Assessor must assess on the day of examination. In present circumstances, the Appeal Panel is satisfied that class 4 impairment was open and appropriate, and accordingly will not disturb this assessment as made by the Medical Assessor.
Conclusion
The Appeal Panel are satisfied that the MAC contains a demonstrable error and/or the application of incorrect criteria in relation to the PIRS of social functioning. That PIRS has been assessed as class 3. That changes the assessment of the median class score to 2.5, which is rounded to 3, with an aggregate score of 16. A median class score of 3 and an aggregate of 16 is a whole person impairment of 17%, in accordance with table 11.7 of the Guidelines.
There are two additional factors that require comment. Firstly, the Medical Assessor has added an allowance for the effects of treatment of 2% whole person impairment. That has not been challenged on appeal and accordingly the Appeal Panel have no jurisdiction to review it. Secondly, the Medical Assessor has made a deduction of one tenth pursuant to s 323 of the 1998 Act. Again, this has not been challenged and will not be overturned by the Appeal Panel.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W86/24 |
Applicant: | Bradlee Benson |
Respondent: | Veritas House |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric/ psychological | 22 February 2019 (deemed) | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6 | 17% | 1/10 | 15% (plus treatment uplift of 2%) |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
8
0