Blatchford v NSW Rail Transport Museum

DETERMINATION OF APPEAL PANEL
CITATION:	Blatchford v NSW Rail Transport Museum [2023] NSWPICMP 613
APPELLANT:	Shane Blatchford
RESPONDENT:	NSW Rail Transport Museum
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	24 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether deduction under section 323(1) of 50% for proportion of appellant’s permanent impairment that due to pre-existing conditions was correct; whether Medical Assessor (MA) denied appellant procedural fairness; Appeal Panel held MA did not deny appellant procedural fairness and there was no error in the deduction the MA made under section 323(1); Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 September 2023 Shane Blatchford, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 August 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with NSW Rail Transport Museum, the respondent, on 15 September 2015. He had before then worked for the respondent since 2009 as a volunteer.
The appellant was initially employed to work 25 hours a week, but his hours were subsequently reduced to 15. Due to the pressure of his workload consequent upon that reduction in his hours and due also to interactions he had with others the respondent employed he suffered a psychological injury.
The appellant came under the care of psychiatrist Dr Christopher Bench in 2021. The appellant’s solicitors requested Dr Bench provide a medical legal report relating to the appellant’s injury, including Dr Bench’s opinion on the degree of permanent impairment the appellant had from his injury.
In report dated 26 July 2022 Dr Bench advised he diagnosed the appellant had post-traumatic stress disorder and persistent depressive disorder with anxious distress with persistent major depressive episodes. Dr Bench also advised that the appellant’s chronic symptoms of anxiety and depression dated back to his adolescence and that the appellant’s most recent episode of depression had been caused by his work injury. Dr Bench advised that the appellant’s post-traumatic stress disorder related to childhood abuse and to an incident to which the appellant was exposed whilst working for the railways in 2007, being an individual attempting suicide in his presence. Dr Bench advised that the stressors that resulted in the appellant suffering his work injury with the respondent caused an aggravation of his post-traumatic stress disorder.
Dr Bench further advised that he assessed the appellant had 24% whole person impairment (WPI) from his injury. Dr Bench considered that one tenth of the appellant's permanent impairment was due to a “pre-existing impairment”. He advised the appellant’s “final whole person impairment” resulting from his injury was 22%.
On 4 August 2022 the appellant’s solicitors wrote to the respondent’s insurer providing it with a copy of Dr Bench’s report and also a “s 66 claim”. By that latter document it notified the insurer that the appellant claimed compensation form the insurer in the amount of $55,550 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 22% WPI from his injury.
Thereafter the respondent’s solicitors arranged for the appellant to be examined by psychiatrist Dr Glen Smith on 6 December 2022. The Appeal Panel notes that Dr Smith had earlier examined the appellant on 30 November 2017 and 31 May 2022 and produced reports dated 30 November 2017, 12 January 2018, 12 March 2018 and 31 May 2022 with respect to those examinations. In response to his examination of the appellant on 6 December 2022, Dr Smith Dr Smith produced a report on that date to the respondent’s solicitors.
In his report of 6 December 2022 Dr Smith advised the respondent’s solicitors that he diagnosed the appellant had post-traumatic stress disorder and persistent depressive disorder with persistent major depressive episode with anxious distress. He advised he assessed the appellant had 26% WPI. He also advised that he assessed the appellant's permanent impairment at the time prior to the appellant commencing work with respondent was 13% WPI. He indicated he based that assessment on information he obtained from the appellant and the documentation that had been made available to him. Dr Smith advised that with respect to the appellant’s injury suffered whilst working with respondent the degree of the appellant’s permanent impairment was 13% WPI. His explanation for how he calculated that was “the current PIRS rating of 26% less the pre-existing assessment of impairment of 13% results in an overall assessment of whole person impairment of 13%”.
On 6 February 2023 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it disputed he was entitled to compensation under s 66 of the 1987 Act for permanent impairment from his injury. The insurer also advised the appellant of its reasons for disputing his claim for compensation, which were, in substance, that his degree of permanent impairment did not exceed 15% WPI, which his permanent impairment was required to exceed by virtue of s 65A(3) of the 1987 Act for him to be entitled for compensation for permanent impairment under s 66(1) of the 1987 Act. It advised him that it relied on the report of Dr Smith.
A medical dispute consequently arose between the parties. The appellant instituted proceedings in the Person Injury Commission (Commission) seeking determination of his claim for compensation. A delegate of the President of the Commission duly referred that dispute to the Medical Assessor to assess. As said, the Medical Assessor issued the MAC in response to the referral on 14 August 2023 in which he certified the degree of the appellant's permanent impairment from his injury was 11%.

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 appellant to undergo a further medical examination. This is for two reasons. Firstly, the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment. Secondly, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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 Medical Assessor conducted his assessment of the appellant's permanent impairment by means of video on 8 August 2023. The appellant was in his solicitor’s office. His mother was with him. The interview and examination went for 60 minutes.
The Medical Assessor stated in the MAC that he had perused the documents that the parties had provided, which the Appeal Panel notes were the documents attached to the Application to Resolve a Dispute the appellant had lodged with the Commission and the Reply the respondent had lodged.
The Medical Assessor’s findings from his examination included the following:
“Mr Blatchford was bespectacled and unshaven. He had short hair. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity.
He spoke spontaneously and gave long narratives. He was upset when I asked about his past psychiatric history and I asked him to tell me as much as he felt comfortable. He was not thought disordered. Mr Blatchford provided a coherent history and was generally focused throughout the assessment.
I raised my hand at one point to indicate I was waiting to talk. He wasn’t happy that I raised my hands, and I explained he talked over me and did not stop after talking for a long time, I could not ask any questions, and therefore had to raise my hand and wait for his permission to let me talk.
At the end of the assessment, I asked Mr Blatchford for additional information that he thought may be relevant and he discussed workplace bullying and he wants an apology from his employer.”
The Medical Assessor obtained a history from the appellant regarding the circumstances to which he was exposed in his employment that gave rise to his work injury. The Appeal Panel observes that this history the Medical Assessor obtained is consistent with the appellant’s evidence in a statement he signed on 30 September 2022 which was within the documents he lodged with the Commission with his application to resolve a dispute.
The Medical Assessor detailed extensively in the MAC relevant clinical data from the documents the parties had lodged with the Commission that related to the appellant’s psychopathology prior to his commencement of his employment with the respondent.
The Medical Assessor provided the following “summary of injury and diagnoses”:
“Mr Blatchford has a complicated history with psychopathology starting in his teenage years and recurrent depressive episodes since 1999. In addition, there were many clinically significant mal-adaptive personality features.
I noted most of his current psychological symptoms, if not all, were present previously at some point and many symptoms were present not long before the current work injury commenced.
Mr Blatchford suffered an aggravation of pre-existing psychiatric injuries due to his work, and this has not resolved.
Overall, my view is that he suffered complex PTSD with depression and anxiety symptoms, and I did not think there were any psychotic symptoms or bipolar disorder. Previous alcohol binges ceased many years ago. There is also an element of personality dysfunction characterised by mistrust, interpersonal sensitivity and repeated relationship difficulties.
Given the overall similarity in symptoms and treatment, longevity and temporality of his pre-existing injury in relation to his work injury, with evidence that he was not particularly stable psychologically immediately before the work injury, my view is that his pre-existing injury contributes to one-half of his current impairment. The pre-existing contribution is not a minor contribution and is significantly at odds with a one-tenth deduction. However, I do not think his pre-existing injury has a greater contribution than his work injury.
In terms of WPI ratings, there is a significant variation between Dr Bench and Dr Smith. In terms of self-care, Dr Bench rated a 3 and Dr Smith also rated a 3 at one point. I noted that Mr Blatchford does spend around 50% of his time living with his parents, however, this is partly because he wants to be there to support his parents and help them, and partly because they support him as well. Having considered his overall capability to initiate activities and look after himself, my view is that he is independent in living and therefore a 2 would be more accurate.”
The Medical Assessor completed the Psychiatric Impairment Rating Scale (PIRS) rating form contained within the form prescribed for a MAC. In the space where that form requires a psychiatric diagnosis to be specified the Medical Assessor completed “Complex PTSD”. The Medical Assessor set out his ratings of the appellant's impairment in the several PIRS categories in that form and provided his reasons for his ratings. His rating for self-care and personal hygiene was 2, social and recreational activities 3, travel 2, social functioning 3, concentration persistence and pace 3, and employability 5. The Medical Assessor observed that the median of his ratings was 3 and that the aggregate was 18, which converted to 22% WPI.
Medical Assessor said within the MAC that the appellant suffered from pre-existing conditions, specifically complex post-traumatic stress disorder with anxiety and depressive symptoms. The Medical Assessor expressed his view that the pre-existing conditions contributed to the appellant’s current permanent impairment. The Medical Assessor said that was because the appellant had suffered “an aggravation of a pre-existing injury”. The Medical Assessor explained that “people with multiple episodes of similar injuries, have greater impairment due to the compounding effects of repeated episodes, even when the previous injury had remitted or been asymptomatic”. The Medical Assessor said a “1/10 deduction would be at odds with the evidence as the pre-existing injury is more than a minor contribution”.
The Medical Assessor, having formed that view, did not assume, in accordance with s 323(2) of the 1998 Act, that the deductible proportion for the purposes of s 323(1) was 10%.
The Medical Assessor assessed the proportion of the appellant’s permanent impairment that was due to his pre-existing conditions was 50% and provided the following reasons for that:
“There is a significant amount of evidence related to Mr Blatchford's pre-existing injury and it is not too difficult or costly to determine the pre-existing contribution. I noted Mr Blatchford is almost never free from psychopathology since 1999 and has had periods of treatment for various psychiatric diagnoses before the subject injury and a previous psychiatric admission, and consulted several previous psychologists and psychiatrists in the past and had prolonged treatment.
I concluded Mr Blatchford's pre-existing injury contributed to one-half because:
·Mr Blatchford's impairment is both the product of his prior psychiatric illnesses and his work injury;
·His work injury worsened his pre-existing psychological disorder;
·Both the pre-existing condition and the work injury have substantial impacts and
·I do not believe a larger proportion of the appellant’s impairment results from his work injury.”
The Medical Assessor accordingly, when assessing the degree of the appellant's permanent impairment from his injury, made a deduction of 50% under s 323(1) of the 1998 Act and consequently certified the degree of the appellant's permanent impairment from his work injury was 11% WPI.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor based his assessment on incorrect criteria and made an error by making a deduction of 50% under s 323(1) of the 1998 Act. The appellant submitted that the deduction should have been 10%.
The appellant submitted that the Medical Assessor denied him procedural fairness because the Medical Assessor “fixated on previous events to the accepted injury” and because the Medical Assessor interrupted the appellant when providing a history. The appellant submitted that the Medical Assessor took the view that he suffered injuries some time in 2015, whereas the Medical Assessor should have focused on the appellant’s statement and the statements of his fellow workers.
The appellant submitted that the Medical Assessor “incorrectly applied the scores for a PIRS, illogically failing to include Depression and Anxiety in the PIRS rating form, when he had, in the reasons stated that [the appellant] was also suffering depression and anxiety”.
The appellant submitted that the Medical Assessor erred by considering maladaptive personality features and personality dysfunction.
The appellant submitted that the Medical Assessor erred by not stating which of his pre-existing injuries were aggravated. The appellant submitted that the MAC contains a demonstrable error because there were no earlier injuries.
The appellant submitted that the Medical Assessor’s ratings of his impairment in the PIRS categories of self-care and personal hygiene, social functioning, concentration persistence and pace and employability were erroneous and ought to have been one or two at worst. The Appeal Panel observes that those were not the ratings the Medical Assessor made of the appellant's impairment in those categories. The submission is consequently unclear, but it seems to be Appeal Panel that the point the appellant seeks to make by this submission, when it is considered in the context of the whole of his submissions, is that the Medical Assessor erred by not utilising a method to made a deduction under s 323(1) of assessing the his permanent impairment from his pre-existing conditions in accordance with paragraphs 11.12-11.20 of the Guideline and then deducting the figure achieved from the 22% WPI the Medical Assessor assessed the appellant to have.
In reply, the respondent submitted that authority prevented the Medical Assessor from adopting a method to make a deduction under s 323(1) of assessing the permanent impairment of the appellant prior to his commencing employment and deducting that from the appellant’s overall permanent impairment. The respondent submitted that the evidence established that the appellant had a significant pre-existing condition before he commenced employment with the respondent, which the Medical Assessor summarised in the MAC. The respondent submitted that the Medical Assessor did not err by making a 50% deduction for the proportion of the appellant's impairment that was due to a pre-existing condition.
The respondent submitted that the Medical Assessor did not deny the appellant procedural fairness.
The respondent submitted that the “absence of ‘depression and anxiety’ to the PIRS rating form is an obvious error”.

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.
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor fixated on events that occurred prior to the appellant commencing his employment with the respondent. The history the Medical Assessor obtained relating to the circumstances that gave rise to the appellant’s injury accord with the evidence the appellant provided in the statement he signed and lodged with his application resolve dispute and the evidence of the witnesses who provided statements.

Further, the Appeal Panel does not accept the appellant’s submission that the Medical Assessor interrupted him, to adopt the appellant’s terminology, while interviewing him for the purposes of the examination. The Medical Assessor’s task was to obtain a relevant medical history. It is apparent to the Appeal Panel from the content of the MAC that was the Medical Assessor’s endeavour when he raised his hand during the interview to indicate to the appellant that he wished to speak. It is apparent to the Appeal Panel that the Medical Assessor’s endeavour by raising his hand was to seek the appellant to direct his attention to issues relevant to the history the Medical Assessor would need to obtain to be able to assess the appellant's permanent impairment. In any event, the Medical Assessor indicated that at the end of his interviewing the appellant he provided the appellant with the opportunity to give any further information that the appellant thought may be relevant. There was simply no denial of procedural fairness by the Medical Assessor.
The Appeal Panel also does not accept the appellant’s submission that there is any substantive error in the MAC due to the Medical Assessor only detailing in the PIRS rating form that his diagnosis was Complex PTSD. Throughout the body of the MAC the Medical Assessor revealed that his diagnosis was Complex PTSD with depression and anxiety symptoms. Further, the Medical Assessor stated in the MAC that the appellant was afflicted with that condition prior to his commencing employment with the respondent, and that it was that condition that the several stressors to which the appellant was subjected in his work with the respondent that was aggravated and resulted in his work injury. In the Appeal Panel’s view the omission of the words depression and anxiety symptoms in the PIRS rating form is of no consequence.
Moreover, whilst it is necessary for a Medical Assessor to make a diagnosis of a worker’s work injury, in accordance with clauses 11.4 and 11.6 of the Guidelines, what is critical with respect to the assessment of a worker’s impairment is what effect the psychiatric injury has on the worker’s functioning. Different clinicians may arrive at different diagnoses, and this may be due to a misapplication of diagnostic criteria or merely an expression of opinion of which reasonable minds might differ. The role of the Medical Assessor is to determine the diagnosis or diagnoses and then assess the impairment that results based on how the worker functions. They are different things and the impairment level is not a direct function of diagnosis.
In this matter, the Medical Assessor has arrived at a diagnosis of Complex PTSD with depression and anxiety symptoms. The Appeal Panel, which is an expert panel, considers that based on the extensive material that was before the Medical Assessor relating to the appellant’s psychopathology and which the Medical Assessor summarised in the MAC, the diagnosis the Medical Assessor made was open to him to make. Further, he based his assessment of the appellant's impairment on the appellant’s functioning as of the time of assessment, having regard to that diagnosis. The Medical Assessor made no error by doing so.
Further, the Medical Assessor obtained a thorough history of the appellant’s psychopathology, which included the appellant having clinically significant maladaptive personality features. As said, it was incumbent upon the Medical Assessor to obtain a relevant medical history. The Medical Assessor had to do so in order to be able to exercise clinical judgement to assess the degree of the appellant's impairment from his work injury.
It is the case that the appellant did not have a “pre-existing injury”. The Medical Assessor’s use of the term “injury” was not a substantive error in the sense that it affected his assessment of the appellant's permanent impairment from the appellant’s injury. It is clear the Medical Assessor, when using the term “pre-existing injury” was meaning the re-existing conditions the appellant had. The Medical Assessor’s use of the term “pre-existing injury” is merely an error in terminology.
In so far as the appellant submitted that the Medical Assessor erred with respect of the method by which he made a deduction under s 323(1), in that the Medical Assessor did not assess the appellant's permanent impairment at the time he commenced his employment with the respondent by reference to PIRS, and then deduct that from the overall permanent impairment he assessed the appellant to have, the Appeal Panel does not accept that submission. The requirement of s 323(1) of the 1998 Act is to determine, at the time the assessment is undertaken, the proportion that a pre-existing condition or previous injury then makes to the permanent impairment the worker has from the work injury. To adopt an approach that would require a Medical Assessor to deduct from a worker’s permanent impairment the impairment a worker had at some prior time would be contrary to that requirement of s 323(1).[2] The Medical Assessor did not make that error in this matter and the method he adopted was the correct method, in that he determined as at the time the assessment was done what the proportion was of the appellant's permanent impairment that was due to the appellant’s pre-existing conditions.
[2] Marks v secretary, Department of Communities and Justice (No. 2) [2021] NSWSC616 at [29]: Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC334 at [54].
The Appeal Panel also considers that the Medical Assessor was correct in his conclusion that he could not assume in accordance with s 323(2) of the 1998 Act that the deductible portion for the purpose of the s 323(1) was to be 10%. As the Medical Assessor said in the MAC this was because making that assumption would be at odds with the considerable evidence relating to the extensive history of the appellant’s psychopathology. The appellant’s psychiatric illness was, as the Medical Assessor highlighted, long standing and had afflicted the appellant almost all the time since 1999. The Medical Assessor explained that he could not form a view that a larger proportion of the appellant's permanent impairment resulted from his work injury than from his pre-existing psychopathology.
The Appeal Panel similarly considers that had the appellant not had such an extensive and complicated history of psychopathology the appellant's current permanent impairment from his work injury would not be nearly as severe as it is now. In other words, had he not had such an extensive history of psychiatric illness, his illness now arising from the stressors to which he was subjected in his workplace would not be nearly as severe, and his functioning would be better than what it is now. The contribution that his pre-existing condition makes is far more than 10% and the Appeal Panel considers that the Medical Assessor’s opinion that the contribution was 50% was available to him to make for the reasons he explained.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 August 2023 should be confirmed.

[2023] NSWPICMP 613

24 November 2023