BGK v Secretary (Department of Education)

Case •

[2023] NSWPICMP 106

•

24 March 2023
DETERMINATION OF APPEAL PANEL
CITATION: BGK v Secretary (Department of Education) [2023] NSWPICMP 106  
APPELLANT: BGK
RESPONDENT: Secretary, Department of Education
Appeal Panel
MEMBER: Marshal Douglas
MEDICAL ASSESSOR: Graham Blom
MEDICAL ASSESSOR: Michael Hong
DATE OF DECISION: 24 March 2023

CATCHWORDS: 

wORKERS cOMPENSATION - Medical Assessor (MA) declined to assess permanent impairment of appellant because he considered the appellant had not achieved maximum medical improvement (MMI); whether MA correctly applied paragraphs 1.15, 1.16 and 1.34 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Appeal Panel found MA had not determined appellant should be re-examined; found at re-examination that subsequent to Medical Assessment Certificate (MAC) appellant had started new treatment and as a consequence of which MMI had not been reached; Held – Appeal Panel found degree of permanent impairment of appellant not fully ascertainable and declined to make assessment; MAC confirmed.  

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 27 October 2022 BGK, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
    Dr Andrew McClure, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 September 2022.

  2. The appellant relies on the ground for appeal provided at s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), that is that the MAC contains a demonstrable error.

  3. 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.

  4. 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.

  5. 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).

RELEVANT FACTUAL BACKGROUND

  1. The appellant suffered a psychological injury due to events that occurred whilst he was employed as a school teacher at the Guildford West Public School between approximately 2017 and 17 November 2020.  The Secretary of the Department of Education, the respondent, is in accordance with s 26(1) and Part 1 of Schedule 1 of the Government Sector Employment Act 2013 the employer of the appellant.

  2. On 25 October 2021 the appellant’s solicitors wrote to the insurer of the respondent advising it that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 24% permanent impairment that the appellant claimed to have from his injury.  That date, in accordance with s 15 of the 1987 Act, became the date on which he suffered his injury.  The appellant’s solicitors enclosed with its letter a report of psychiatrist Dr Frank Chow dated 15 October 2021, who examined the appellant on
    4 October 2021, at the request of the appellant’s solicitors, and advised them that the appellant had 24% WPI from his injury.

  3. The respondent’s lawyers thereupon organised for the appellant to be examined by psychiatrist Dr Peter Young on 18 January 2022. Prior to that occurring, the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim against the respondent for compensation under s 66 of the 1987 Act. The respondent filed a Reply to that application on 11 January 2022. It sought the proceedings be dismissed, contending that the Commission did not have jurisdiction to determine the appellant’s claim. This was because as at the time the appellant initiated proceedings in the Commission he had not submitted himself for medical examination by Dr Young and, as a consequence, at the time the appellant initiated proceedings the respondent was not required under s 281(2) of the 1998 Act, to determine his claim for compensation. Simply put, the respondent contended that a dispute had not yet arisen between it and the appellant for the Commission to determine.

  4. The Commission referred the matter to Member Mr Richard Perignon, who on
    22 March 2022, with the consent of the parties, remitted the matter to the President of the Commission for referral to the Medical Assessor so as to assess the whole person impairment of the appellant from his injury on 25 October 2021.  The Member also directed that the documents to be provided to the Medical Assessor were the appellant’s Application to Resolve a Dispute, the respondent’s Reply and any report the respondent filed by
    Dr Young provided that report was filed by 29 March 2022.

  5. A delegate of the President duly referred the matter to the Medical Assessor.  One of the medical disputes that the delegate listed in the referral to be assessed was whether the degree of permanent impairment of the appellant is fully ascertainable. 

  6. As mentioned the Medical Assessor issued a MAC on 26 September 2022.  In that he expressed his view that the appellant’s injury had not stabilised or reached maximum medical improvement.  He explained that this was because the appellant had not achieved significant improvement from the treatment of his injury to date.  The Medical Assessor considered that the appellant required “further and more intensive treatment”.  The Medical Assessor indicated that that treatment would comprise the appellant seeing his psychiatrist every fortnight or every four weeks for the next 12 months and changing his antidepressant medication with that new medication being titrated over the short to medium term.  The Medical Assessor said that if a single antidepressant proved ineffective then an augmentation agent such as Lithium should be added.

  7. The Medical Assessor noted that the appellant’s treatment to date comprised the appellant taking melatonin for sleep, which was subsequently ceased, and the antidepressant Agomelatine, which the initiating dose of that being 12.5mgs a night with that being increased to 50mgs.  The Medical Assessor noted that the appellant also saw psychiatrist
    Dr David Kumagaya, whom the appellant first consulted on 14 January 2020 and whom he had seen for a total of five or six consultations prior to the Medical Assessor examining the appellant. 

PRELIMINARY REVIEW

  1. 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.

  2. As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination.  This is because, for reasons explained below, the Appeal Panel considered the MAC contained a demonstrable error and in order to re-assess the medical dispute the Appeal Panel would need to obtain a more complete history from the appellant regarding the treatment the appellant had been offered for his injury.  Dr Graham Blom, a member of the Appeal Panel, was appointed to conduct that examination.  He did so on 9 March 2023, and the Appeal Panel has copied his report to it below. 

EVIDENCE

  1. 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.  The Appeal Panel has also taken into account Dr Bloom’s report.

SUBMISSIONS

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

  2. In summary, the appellant submitted that the Medical Assessor erred by concluding that he had not achieved maximum medical improvement.  The appellant noted that in accordance with [1.15] and [1.16] of the Guidelines, but subject to [1.34] of the Guidelines, the Medical Assessor was able to refuse to undertake an impairment assessment if the treatment he had received for his injury had been inadequate.  The appellant submitted that [1.34] imposed a fetter on the Medical Assessor’s discretion to refuse to undertake an impairment assessment where additional or alternative treatment had not been offered to the appellant.  The appellant submitted that the Medical Assessor did not state in the MAC whether the Medical Assessor had asked him whether he had been offered and refused other proposed treatments.  The appellant submitted that the Medical Assessor formed the view about the adequacy of his treatment to date but the Medical Assessor did not determine whether the treatment the Medical Assessor considered he required had been offered to him and refused by him.  The appellant stated that it is clear the Medical Assessor “erred in exercising the discretion to refuse an assessment conferred by paragraph 1.15 by failing to properly consider the fetter imposed by paragraph 1.34”.

  3. In reply, the respondent submitted that [1.34] of the Guidelines only applied with respect to a worker’s refusal to accept an offer of treatment that is “current/ongoing at the time of the assessment”.  The respondent submitted that consequently the Medical Assessor was only required to consider whether the appellant’s condition at the time of examination was affected by any refusal for treatment that was “active” at the time of examination.  In other words, as the Appeal Panel understood the respondent’s submissions, it was only if the appellant had refused to take Agomelatine and consult infrequently with his psychiatrist that [1.34] of the Guidelines would be engaged. 

FINDINGS AND REASONS

  1. 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.

  2. The Appeal Panel accepts the submissions of the appellant.

  3. Section 322(4) of the 1998 Act confers a discretion on a Medical Assessor to decline to assess the degree of permanent impairment of a worker until the Medical Assessor is satisfied the impairment is permanent and that the degree of permanent impairment of the worker is fully ascertainable. 

  4. The Guidelines at [1.15], [1.16] and [1.34] read as follows:

    “1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.

    1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.

    1.34 If the claimant has been offered, but has refused, additional or alternative medical treatment that the assessor considers likely to improve the claimant’s condition, the medical assessor should evaluate the current condition without consideration of potential changes associated with the proposed treatment. The assessor may note the potential for improvement in the claimant’s condition in the evaluation report, and the reasons for refusal by the claimant, but should not adjust the level of impairment on the basis of the claimant’s decision.”

  5. The upshot of s 322(4) and these paragraphs of the Guidelines is that if a Medical Assessor considers a worker has not been treated adequately and there is other or additional treatment a worker can have that is likely to result in improvement or stabilisation of a worker’s condition then, absent the worker having been offered and refused that additional alternative treatment, the Medical Assessor can decline to make an assessment of the degree of permanent impairment of the worker.  In other words, until such time as a worker undergoes that alternative or additional treatment or is offered it and refuses that additional or alternative treatment, a Medical Assessor is permitted to decline undertaking an impairment assessment.

  6. The Medical Assessor in this case clearly considered that the appellant’s treatment up to the date he conducted the examination had not been adequate.  He also considered that there was alternative treatment that the appellant could undergo, being seeing his psychiatrist every fortnight or every four weeks and changing his antidepressant medication with Titration of that new medication as required and potentially the addition of an augmentation agent if required.  It is implicit from the MAC that the Medical Assessor was of the view that if the appellant was to undergo this alternative treatment then it was likely the appellant’s condition would improve and stabilise. Consequently, the Medical Assessor formed the view that the appellant’s medical condition was not at the time of his examination fully ascertainable because of the likely improvement that the appellant might achieve if he underwent that alternative treatment. 

  7. In the Appeal Panel’s view, as the appellant has submitted, the Medical Assessor did not turn his mind to [1.34] of the Guidelines.  It is only in a circumstance where the alternative treatment the Medical Assessor considered the appellant should undergo had not been offered to him that he could conclude that the appellant had not achieved maximum medical improvement.  If the appellant had been offered the treatment the Medical Assessor considered he should undergo and refused that treatment then, consistent with [1.34] of the Guidelines, the Medical Assessor was required to conduct an assessment of the appellant’s permanent impairment.

  8. There is nothing within the evidence that indicates whether the appellant had been offered the treatment that the Medical Assessor considered the appellant ought to have.  Further, as the appellant has highlighted, there is nothing within the MAC that indicates the Medical
    Assessor enquired of the appellant whether the treatment that the Medical Assessor considered the appellant should have had been offered to the appellant had in fact been offered and refused.  The Appeal Panel is not satisfied from the MAC that the Medical Assessor made the enquiry, which he needed to do in order to decline, in accordance with [1.16] and [1.34] and s 322(4), to conduct an impairment assessment of the appellant. 

  9. The Appeal Panel does not accept the respondent’s submission that [1.34] is only engaged with respect to the treatment the appellant was undergoing at around the time that the Medical Assessor’s examination of the appellant was done.  Even if, in arguendo, what the respondent submitted is correct, the Medical Assessor would still need to enquire what other or additional treatments had been offered to the appellant at or about the time of the examination.  Absent that enquiry being made, or revealed by the evidence, the Medical Assessor could not have known whether [1.34] was engaged or not.

  10. The Appeal Panel therefore concludes the MAC contains a demonstrable error.

  11. Given that, coupled with the fact that it was not known from the evidence or the MAC whether the appellant had been offered and refused the alternative treatment that the Medical Assessor considered he should undergo, and hence it could not be established on the evidence whether the appellant had or had not achieved maximum medical improvement, the Appeal Panel determined that the appellant ought to be examined again by Dr Blom to elicit what treatment he had been offered.  Dr Blom’s report to the Appeal Panel is as follows:

    “Brief History

    BGK experienced harassment, bullying and micromanagement primarily by his headmaster whilst working as a teacher and assistant principal at Guildford West public school. Initially he developed a gambling addiction, which resolved with psychological treatment. He continues this psychological treatment and has not gambled since 2020. However he also subsequently developed symptoms consistent with a significant Major Depressive Disorder. He was initially referred to a psychologist and later, in early 2021, referred to a psychiatrist  Dr. Kumagaya.

    He was initially reluctant to take medication, but was eventually prevailed upon by his wife and General Practitioner and began the antidepressant medication, agomelatine, initially at a dose of 12.5 mgs/night, gradually increased to a final dose of 50 mgs/ night. He reached the final dose in the latter part of 2021, and remained on this medication through till late 2022. For a period he was also trialled on melatonin, for treatment of insomnia, but found that this caused nightmares and headaches and so ceased it. He also had not trialled any other medication, nor had he been offered any other medication until after Dr McClure’s assessment. 

    Subsequent to the assessment by Dr McClure Dr. Kumagaya has recommended cessation of the agomelatine, which occurred over a few weeks and then he initiated the serotonergic antidepressant, fluoxetine. The initiation dose was 20 mgs/day and there has been no increase in the dose over the last four or five months, that is until the time of this assessment. BGK understands however that there will be further increases in the fluoxetine, but that Dr Kumagaya is proceeding slowly as he wishes to give reasonable time to assess how effective the medication is. BGK now consults the psychiatrist more regularly, approximately once every four to six weeks. The consultations appear to be primarily used, at this time for psychological treatment by the psychiatrist, although he continues to assess and review his response to medication. BGK continues to consult his psychologist every two weeks.

    The worker has not been offered any treatment other than that which he has had to the date of this examination. 

    Current symptoms

    There has been very little change in the worker’s overall symptomatology In the period following the review by Dr. McClure, despite the change in medication. He continues to remain depressed with loss of motivation, low energy and lack of drive. He has very little pleasure in life. His concentration remains poor and he struggles to read even simple literature despite the fact that previously he was an avid reader. He is easily distracted and generally struggles with persistence. He occasionally tries to watch television but gets bored and often irritated with the shows. Generally his overall mood remains down with an ongoing tendency to short temper and irritability.

    His sleep continues to be poor, he currently takes melatonin at night to assist with sleep, and finds that he is able to sleep for about four hours before waking. When he wakes feels agitated and is unable to return to sleep. He restarted the melatonin only a couple of months ago following the initiation of fluoxetine.  He tends to nap during the day usually for about one hour on a couple of occasions. Following the introduction of fluoxetine he initially lost his appetite and as a consequence lost a considerable amount of weight, he estimates approximately 20kgs. He has subsequently regained his appetite, but tends to eat high density, high calorie food and tends to graze rather than eat appropriate meals. He has only regained about 10 -12 kgs of the weight he originally lost.

    He denies feelings of helplessness, hopelessness or despair and says that he does not have suicidal thoughts. He continues to smoke tobacco heavily consuming about 20 cigarette/day. He does not use alcohol or illicit drugs.

    Diagnosis

    BGK Continues to meet the diagnostic criteria for Major Depressive Disorder, he's overall symptomatology appears to be little changed since the time of the assessment by Dr. McClure.

    Observations

    BGK’s Condition has not reached maximum medical improvement. At the time of
    Dr. McClure's review he had not been offered any other treatment except that which he was observed to be taking by Dr. McClure. Subsequently he has been initiated on the antidepressant medication fluoxetine at an initiation dose only. He has not been given an adequate trial of this medication, at moderate to high doses. Given the severity of his disorder, it is very unlikely that he will respond effectively to the current limited dose of fluoxetine. I concur with Dr.McClure’s findings that the worker requires more assertive medical treatment, including adequate trials of at least two antidepressants from different classes  that is the current serotonergic medication at moderate to high doses and a trial of an anti-depressant from another class, such as a dual acting or tricyclic medication or other class as his psychiatrist feels appropriate. It would be useful if the psychiatrist choses at least one medication where the drug level can be accurately measured to ensure that BGK is not a rapid metaboliser of antidepressants.  I concur with Dr. McClure that this should be undertaken preferably by the psychiatrist with regular consultations, preferably at least monthly.  He should continue his regular consultations with his psychologist, as well as continuing counselling and psychological treatment for his previous period of gambling addiction.”

  1. The history Dr Blom obtained reveals that subsequent to the Medical Assessor’s examination of the appellant there was a change in the appellant’s treatment whereby the appellant has ceased Agomelatine and is now taking a different antidepressant, namely Fluoxetine.  His dosage of Fluoxetine will likely be increased in time.  Further, the appellant now consults his psychiatrist more regularly for psychological treatment. 

  2. From the history that Dr Blom obtained it is clear that the appellant has not been offered any treatment other than that which he has had to date.  From this history it also is clear that the appellant’s treating psychiatrist is planning future increases in the dose of the current medication, Fluoxetine. The Panel believes that there is a reasonable likelihood of a significant improvement in the appellant’s condition as a result of either this increase in medication or if not from this increase then from the subsequent changes in treatment as outlined in Dr Blom’s report.

  3. In that circumstance, the Appeal Panel considers, consistent with [1.15] of the Guidelines, that the appellant has not achieved maximum medical improvement, and that consequently at this time the degree of the appellant’s permanent impairment is not fully ascertainable. The Appeal Panel notes that, as the appellant has not been offered any treatment other than that which he has had to date, [1.34] of the Guidelines is not engaged in this matter. 

  4. For these reasons, the Appeal Panel has determined that the MAC issued on
    26 September 2022 should be confirmed.

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