Brinkworth v Secretary, Department of Communities and Justice
[2021] NSWPICMP 98
•23 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Brinkworth v Secretary, Department of Communities and Justice [2021] NSWPICMP 98 |
| APPELLANT: | Alyta Brinkworth |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL: | Member Marshal Douglas Dr Patrick Morris Dr Douglas Andrews |
| DATE OF DECISION: | 23 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker suffered psychological injury; Medical Assessor assessed she had 19%WPI resulting from her injury; appellant submitted Medical Assessor applied incorrect criteria in making that assessment and that the MAC contained a demonstrable error because, firstly, Medical Assessor’s assessment with respect to her impairment in social functioning was not consistent with the evidence and ,secondly, the Medical Assessor ought to have increased his assessment of appellant’s impairment due to the effects of the treatment; Held- Appeal Panel held that the Medical Assessor considered all relevant evidence when assessing the appellant’s impairment with respect to social functioning and provided considered reasons for his assessment and the assessment he made was open to him based on the evidence and was in accordance with the relevant criteria; the Appeal Panel found that the appellant continued to suffer significant symptoms from her injury and had a significant impairment, and consequently the Medical Assessor correctly applied [1.32] of the Guidelines by not increasing his assessment of the appellant’s impairment due to the effects of treatment; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 April 2021 Alyta Brinkworth (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Dr Graham Blom, who issued a Medical Assessment Certificate (MAC) on 15 March 2021.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury due to her being exposed to several traumatic incidents after January 2008 while employed by the NSW Government in a department that was known as the Department of Community Services at the start of the appellant’s employment. The Secretary of the Department of Communities and Justice (the respondent) is, in accordance with s 26 of the Government Sector Employment Act2013, the appellant’s employer.
By letter of 9 October 2020 the appellant’s solicitors notified the respondent that the appellant claimed compensation of $66,010 under s 66 of the Workers Compensation Act1987 (the 1987 Act) for 25% whole person impairment (WPI) resulting from her injury. She relied on a report of Dr Anthony Dinnen dated 29 September 2020, who is a consultant psychiatrist and who had examined the appellant and assessed her permanent impairment to be of the order for which the appellant claimed compensation.
The respondent’s insurer thereupon arranged for the appellant to be assessed by psychiatrist Dr Yajuvendra Bisht, who issued a report dated 23 November 2020 in which he advised that he had assessed the appellant to have 7% WPI resulting from her injury.
Thereupon the appellant registered with the Commission an Application to Resolve a Dispute. Her claim was referred by the Commission to the Medical Assessor so as to assess the degree of her permanent impairment resulting from her injury. In the MAC the Medical Assessor issued in response to that referral, he certified that he had assessed the degree of the appellant’s permanent impairment resulting from her injury to be 19% WPI.
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.
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 because, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.
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, having examined the appellant on 8 March 2021 via Zoom Professional, and having had regard to the documents the Commission provided him, considered that the appellant met the criteria for “Post Traumatic Stress Disorder – chronic” and “Major Depressive Disorder – chronic”.
The Medical Assessor considered that notwithstanding appropriate and intensive psychiatric and psychological management the appellant had for her injury, she continued to experience considerable anxiety and a range of other symptoms, including the re-experiencing of phenomena, hyper-vigilance, social withdrawal and avoidance.
The appellant’s challenge to the Medical Assessor’s assessment of her permanent impairment relates to the Medical Assessor’s rating of her function in the area of social functioning and to the Medical Assessor not making an adjustment to his assessment of her impairment for the effects of treatment.
Relevant to the Medical Assessor’s rating of the appellant’s impairment in the area of social functioning, the Medical Assessor noted:
“There has been a significant amount of tension and strain in her relationship with her
husband. As mentioned she has also been somewhat more intrusive with her children
because of concerns for their safety. She has lost some friends because of her levelof withdrawal and her feelings of their failure to understand her symptomatology.”
Further, the Medical Assessor observed that Dr Dinnen had rated the appellant’s impairment in social functioning as moderate, which contrasted with his rating of her impairment as being mild. The Medical Assessor offered the following explanation for that difference:
“I agree with all of his rating scales except for that of Social Functioning which he rates as Class 3 describing the fact that ‘….the relationship is at risk and her 10 year old son requires psychological therapy. Her relationship with her husband is strained. He has been sleeping in a separate room on his own since the end of last year. She cannot tolerate him touching her skin. Intimacy is absent. There is marked irritability in relationships. She has difficulty coping with the care required for her children’. I agree with much of this although the separations of bedrooms is related to Ms Brinkworth’s difficulty in sleeping and nightmares rather than formal separation. There has been certainly an impairment with intimacy but this and the other issues that Dr Dinnen noted do not constitute sufficient impairment, in my opinion, in Social Functioning to rate it a
moderate impairment. This would require actual separation, violence or similar
events. I do not believe Ms Brinkworth’s relationship with her husband has beensufficiently impaired to meet this requirement therefore Class 2 is more appropriate.”
In the PIRS Rating Form attached to the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment in social functioning as Class 2.
“There has been a significant amount of tension and strain in her relationship with her husband. As mentioned she has also been somewhat more intrusive with her children because of concerns for their safety. She has lost some friends because of her level of withdrawal and her feelings for their failure to understand her symptomatology”.
Relevant to the issue of the Medical Assessor not increasing his assessment of the appellant’s permanent impairment due to the effects of the treatment the appellant had for injury, the Medical Assessor noted that the appellant had undergone appropriate and intense psychiatric and psychological treatment, but achieved only modest improvement and that the appellant still suffered significant symptoms from her injury. The Medical Assessor noted that the appellant’s condition had stabilised over the last many months and that she was currently being treated by taking medications of Escitalopram 20mg in the morning, Topiramate 100mg twice daily, Agomelatin 50mg at night, Melatonin 5mg at night and Diazapam occasionally when her anxiety or panic became overwhelming. The Medical Assessor noted that the appellant consults her general practitioner on a monthly basis for support and counselling and still consults her psychiatrist but with less frequency than the past.
The Medical Assessor noted that Dr Dinnen had allowed 3% for the effect of treatment. The Medical Assessor said this regarding that:
“This is not appropriate as Ms Brinkworth has not had a ‘apparent substantial total elimination in the claimants permanent impairment’ in fact she has only had a modest response to treatment, for this reason there should be no allowance for treatment effect.”
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 applied incorrect criteria when assessing her impairment in social functioning.
The appellant notes that the Medical Assessor obtained a history of her becoming increasingly avoidant and withdrawn and going out of the house less frequently and of her having limited contact with her friends. The appellant notes that the history the Medical Assessor obtained also included that she is generally more irritable and that she is having increased conflict with her husband. The appellant also highlights that the evidence before the Medical Assessor included a statement she signed on 15 December 2020 in which she said that she sees her brother only once a year and that she “will blow up” at her children for small transgressions. The appellant submits that the Medical Assessor may not have considered that evidence and may have dismissed that evidence.
The appellant further submits that the Medical Assessor did not provide any reasons for not making any allowance for the effects of treatment.
In reply, the respondent submits that the weight of the evidence and the history the Medical Assessor obtained supports the Medical Assessor’s rating of the appellant’s impairment in social functioning as mild. The respondent submits that the Medical Assessor was correct not to make any allowance for the effects of treatment and that his doing so was consistent with [1.32] of the Guidelines.
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.
Dealing firstly with the issue of whether the Medical Assessor ought to have made an allowance for the effect of the treatment the appellant has received, by increasing the permanent impairment he had assessed the appellant to have from her injury, the Appeal Panel notes that [1.32] instructs as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
It is evident from the MAC that the treatment the appellant has had for her injury has not resulted in a substantial or total elimination of her permanent impairment. Consequently, [1.32] of the Guidelines was not engaged, and there was no basis otherwise for the Medical Assessor to increase his assessment of the appellant’s permanent impairment from her injury due to the effects of treatment. Accordingly, the Appeal Panel rejects the appellant’s submissions that the Medical Assessor’s assessment was based on incorrect criteria with respect to this issue and that the MAC contains a demonstrable error due to this issue.
It is apparent to the Appeal Panel that the Medical Assessor had regard to all the relevant evidence with respect to his rating of the appellant’s impairment in the category of social functioning. The Medical Assessor had regard to what the appellant reported to him as well as what she reported to Dr Dinnen and Dr Bisht and also to what she has said in her statement. It was a matter for the Medical Assessor’s clinical judgment as to how he weighed the significance of these matters.[2] Further, as Harrison AsJ held in Glen William Parker v SelectCivil Pty Ltd[3], “in relation to classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in a statutory sense”.
[2] Ferguson v State of New South Wales [2017] NSWSC 887 at [23], citing with approval NSW Police Force v Daniel Wark [2012] NSWWCC MA36 at [33].
[3] [2018] NSWSC 140 at [66]
Hence, the fact that Dr Dinnen assessed the appellant’s impairment in the category of social functioning differently from how the Medical Assessor assessed the appellant’s impairment in this area does not demonstrate an error on the part of the Medical Assessor. In the Appeal Panel’s view the Medical Assessor has provided a considered explanation for his rating that the appellant’s impairment in social functioning is mild, and in the Appeal Panel’s view he was entitled to come to that view for the reasons he advanced.
The Appeal Panel observes that the descriptors provided in Table 11.4 of the Guidelines for a mild impairment in social functioning are:
“Existing relationships strained. Tension and arguments with partner or close family member, whilst of some friendships”.
The descriptors provided for a moderate impairment in this category are:
“[Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children”.
Whilst these descriptors provide only examples to guide a medical assessor with respect to rating a worker’s impairment, in the Appeal Panel’s view, and bearing in mind what the Medical Assessor set out in the MAC regarding the appellant’s capacity with respect to social functioning, which has been extracted above, the Appeal Panel considers, as it has already said, that it was open to the Medical Assessor to classify the appellant’s impairment in the area of social functioning as mild.
The Appeal Panel therefore does not consider that the Medical Assessor based his assessment with respect to the appellant’s performance in the area of social functioning on incorrect criteria nor does the Appeal Panel consider the MAC contains a demonstrable error as a consequence of the Medical Assessor’s assessment of the appellant’s impairment in social functioning.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 March 2021 should be confirmed.
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