BSM v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 416
•27 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BSM v State of New South Wales (NSW Police Force) [2024] NSWPICMP 416 |
| APPELLANT: | BSM |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against medical assessment; psychological injury; provision of adequate reasons; procedural fairness; conclusions reached by Medical Assessor (MA) without adequate explanation; lack of procedural fairness afforded to appellant concerning inconsistencies; demonstrable errors identified; re-examination conducted confirming assessment of the psychiatric impairment rating scale provided by MA; Held – Medical Appeal Panel agree with the assessment of impairment in terms of the scales assessed by the MA; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 March 2024 BSM (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the 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
BSM was employed by the NSW Police Force as a research and project officer. He experienced workplace stressors in June 2021, in the context of a mask mandate due to COVID-19 and BSM having an exception to wearing a mask in the office. A manager insisted that he needed a lawful reason for not wearing a mask, which was inconsistent with official guidance at the time. He felt distressed and suffered a psychological injury.
The matter proceeded through the Personal Injury Commission (Commission) following a claim for lump sum compensation. The appellant was assessed by Dr Suman, a Medical Assessor, who provided an assessment of 7% whole person impairment. BSM appeals from that 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 the worker should undergo a further medical examination because the Appeal Panel were satisfied that the Medical Assessor had made a demonstrable and had denied the appellant procedural fairness. The Medical Assessor suggested that there was inconsistency in the worker’s responses, but there is no evidence in the MAC that the inconsistencies were put to the worker to give him an opportunity to explain.
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.
Further medical examination
Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 12 June 2024 and reported to the Appeal Panel. The contents of that report have been included in the decision below and form part of the reasons for decision of the Appeal Panel.
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. The appellant challenges three of the assessments made by the Medical Assessor under the Psychiatric Impairment Rating Scales (PIRS), being self-care and personal hygiene, travel, and concentration, persistence and pace.
The appellant’s submissions commence with an extensive analysis and summary of the legislative scope of an Appeal and the method of assessment of psychological injuries under the PIRS in accordance with the Guidelines. The appellant then goes on to make general observations about the MAC which he says provides context for the psychiatric injury suffered.
In respect of the PIRS of self-care and personal hygiene, the appellant refers to the findings of the Medical Assessor and the descriptors in Table 11.1 of the Guidelines, noting that there may have been a typographical error in the Medical Assessor’s reference to “kempt”. The appellant goes on to submit that it is not known what is meant by the words “above information does not fit in the complete clinical picture”, nor the consideration of “all available evidence” provided by the Medical Assessor. The appellant submits that the worker does not know the basis for the finding made.
In respect of the PIRS of travel, the appellant submits that the Medical Assessor commented on the presence of inconsistencies, but did not explain them or invite the worker to address them, nor has he provided reasons as to how they were resolved.
In respect of the PIRS of concentration, persistence and pace, the appellant submits that the Medical Assessor placed undue weight on there being no “formal workplace performance issues being raised”, which is an irrelevant consideration, and given the history elicited by the Medical Assessor, a class 3 in this scale would be more appropriate.
In reply, the respondent submits that the Appeal Panel has no jurisdiction to substitute their own assessment of impairment unless it is first established that the assessment was based on incorrect criteria or the MAC contains a demonstrable error. The respondent asserts that the ratings provided by the Medical Assessor were open to him on the information provided and the appellant has not demonstrated that there is an error on the face of MAC or incorrect criteria.
In respect of self-care and personal hygiene, the respondent submits that an assessment of class 3 for this scale would be inconsistent with the evidence. The “complete clinical picture”, it is submitted, refers to the other assessments of permanent impairment. The respondent submits that the appellant is able to know the basis for finding a class 2 impairment based on the material in the MAC.
In respect of travel, the respondent submits that the fact that the appellant finds it difficult to leave the house without a support person is not inconsistent with class 2 for this scale. The respondent submits that the appropriate test is not what is “more appropriate” or “best assessed”, and that the appellant is required to make out that the Medical Assessor fell into error. The respondent also refers to evidence consistent with a class 2 assessment, submitting that it cannot be said that the Medical Assessor fell into error.
In respect of concentration, persistence and pace, the respondent submits that the appellant has failed to establish why the assessment of the Medical Assessor amounts to an error or was based on incorrect criteria. The respondent notes that BSM has been able to maintain a full time job as a university lecturer in psychology, making an assessment of class 3 as submitted by the appellant wholly inappropriate. This would in fact appear to be more in keeping with a class 1 rating.
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.
Both parties have made submissions about the general jurisdiction of the Appeal Panel, what constitutes the application of incorrect criteria and demonstrable error, and the conduct of assessments of psychological injury under the Guidelines. There is no dispute about any of those preliminary issues.
The appellant has challenged the assessment in relation to three of the six PIRS. The Appeal Panel are satisfied that the MAC contains a demonstrable error in a number of respects relating to the assessments of self-care and personal hygiene and travel.
The appellant refers in particular to the Medical Assessor’s conclusion that “the above information does not fit in the complete clinical picture” and there being inconsistencies in the information. The respondent submits when one considers the MAC as a whole, the references are obvious and it can be inferred that the Medical Assessor was referring to the other medical opinions provided to the Medical Assessor.
The Appeal Panel does not accept the respondent’s submissions and is satisfied the MAC contains a demonstrable error. The Medical Assessor has failed to provide adequate reasons for his conclusion that there are inconsistencies, and has not afforded the appellant sufficient procedural fairness in not allowing BSM the opportunity to explain those apparent inconsistencies.
The Appeal Panel acknowledges that the reasons of an administrative decision maker should not be read with a fine toothcomb with an eye keenly attuned to error, but rather to reveal the actual path of reasoning for the opinion reached by the decision maker. Here, the Medical Assessor has failed to provide those reasons to an adequate standard. The Appeal Panel does not agree that it can be inferred that the references are to the competing medicolegal opinions provided by the parties. Whilst the Medical Assessor refers to the reports of Dr Anderson and Dr Nagesh, he does not explain how they are inconsistent with his opinion or how that has affected his assessment of the PIRS in travel. Likewise, it is not clear what the “complete clinical picture means”. In circumstances where the appellant is left with no understanding of the basis for the conclusions reached based on the reasons in the MAC, it can be concluded that adequate reasons have not been provided.
As indicated, the Appeal Panel conducted a preliminary review of the matter and determined that it was appropriate that BSM was re-examined by a medical member of the Appeal Panel. This was on the basis of the above identified demonstrable error. The Appeal Panel have limited their assessment to the issues raised on appeal, and in particular the three PIRS challenged by the appellant.
The report of the Medical Assessor is as follows:
Matter Number: | M1-W8393/23 |
Appellant: | BSM |
Respondent: | State of New South Wales (NSW Police Force) |
Date of Determination: | 12 June 2024 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 12 June 2024 |
1. The worker’s medical history, where it differs from previous records
BSM was reticent throughout to give details of his treatment, functioning and life, often providing quite limited and uninformative answers to direct questioning, repeating these limited answers when asked to expand, or repeating my prompts back to me. Conversely he was free and quite detailed relating events that happened in the Police Force, the impact this had on him and the events such as his boxercise classes he did prior. He was a little concerned when I informed him that some aspects of the Medical Appeal Panel’s decisions may be publicly accessible, but I tried to reassure him that if he needed certain aspects to remain confidential this could be done, and if not relevant not need to go in the report it would not.
BSM has not engaged in any psychological or psychiatric treatment for months, having stopped with Ms Sawtell possibly at the end of 2023. He said he is thinking of going back for more treatment because he has ‘suffered a lot…carries trauma’, and thinks he may need further support. I was unable to ascertain what this support might be for. He told me today he does not use Valium anymore and has no other psychiatric or psychological input. He continues to receive thyroxine treatment for his hypothyroidism but did not want this in the report if it were to become public. He reported no other medical or psychological issues. He told me today he does not drink, smoke, vape, use illicit drugs or medicinal cannabinoids.
In terms of his wellbeing, he said he does not do much. He only goes for rare walks now, whereas he used to exercise more frequently before and then spent some time expanding on the boxercise he sued to do. He says he eats 2 or 3 times a day ‘depending.’ I could not elicit what this meant. He suggested he may have put on weight despite possibly eating less because he was fitter then, but eats fairly healthily. He uses occasional Vitamin C tablets.
On probing I elicited that he continues to attend Concord Medical Centre for some of his medical treatment, e.g. his hypothyroidism treatment, and consults Dr Khan, both face-to-face at Chullora and remotely, for his work injury case. He said the last time he saw him was some months ago for a workers' compensation certificate.
2. Additional history since the original Medical Assessment Certificate was performed
it was extremely difficult to get him to reveal aspects of his home life, even whether he had children. He said other assessing doctors had assured him that these were not relevant to assessing him, although I cannot see how one can assess impairment without such an understanding. (I note Dr Anderson and others also had difficulty eliciting aspects of his personal life.) He acknowledged he did have a one-year-old girl, (the medical notes indicated this). He said his wife is due to start work after having taken a break. They live with his in-laws in Concord.’ BSM stated his in-laws do not require any help. However he said his mother has recently had an operation and although he would like to care for her, he cannot do so because of her location. He does not want to drive to the Central Coast because of anxiety. He says he can only drive locally because of this anxiety, and not drive long distances, whereas he used to enjoy driving. I could not elicit any hyperarousal, hypervigilance or physical aspects of anxiety. He leaves the house on his own at times although this was again hard to elicit as he added ‘with a support person’ as. a stock addendum to many answers on different topics. He did say he prefers to the shops with his wife, and otherwise preferred online shopping. He said that he was anxious at the shops some time ago. This was not a panic attack, and it took some time to identify the trigger which I understand to be ‘a physical resemblance.’ He says he has not used public transport or planes for many years.
He goes to bed between 11pm and midnight. Prior to that at home in the evening he says he is doing ‘things that are useful for my family.’ He gave a repeated example of “putting out the garbage” but would not volunteer anything else. He says his wife generally cooks but he will do some other chores, but again with no more detail. He does not watch TV in the evening but may do work if required at times when courses he teaches are more intensive. He may take over an hour to fall asleep due to ruminating about his incidents of the majority of the nights of the week. Generally he sleeps through but will occasionally wake with a nightmare, and find it difficult to fall back to sleep. He wakes with an alarm at between 6am and 7am. He and his wife then get ready for the day and he will help with his daughter. He said his wife will guide him what to do around the home and he will do a range of chores and “enjoys feeling useful to the family”. He is generally online working by 8am-8:30am and gets dressed properly for this although notes he pays more attention to his top half than his bottom when he is doing his online tutorials and other interactions.
He says that he has no social life now and this has changed. He also reported doing nothing with his wife and family. When I pointed out he had a young daughter and maybe he did something with her, he acknowledged that they may do. In terms of actual details, he just repeated the prompts I gave him of ‘going to the park’ or ‘with grandparents’. On further probing he suggested they might play with her toys, teach her stuff and have bought her things. I could not identify anything further and any attempts to explore this were avoided. He does help care for his daughter, e.g. bath her. He says that nobody contacts him, he has no friends. He will talk to his mother occasionally. He has two half-siblings who he will talk to but said he does not see them and they are of a different generation because they are much younger.
Vocationally he has been employed by [redacted] for over two years as a lecturer. He is the unit coordinator for a post graduate level cognitive psychology unit. He teaches graduate students for a diploma as an entry for further psychology teaching. He works in blocks of six weeks with intense teaching. He may teach online for many hours a day. He acknowledged (and again this required prompting) that he would do marking of papers and exams, attend examination committees, interact with other members of faculty, run tutorials and would be focusing and working for many hours a day in this role. He said in between these six-week blocks things can at times ‘be easier’ but could not give me examples of what he did then. His role is teaching-focused rather than having a research component. He engages in many cognitively demanding activities for prolonged periods of time whilst teaching and marking. Conversely he says that he no longer reads for pleasure because he finds that he is less interested. He repeatedly pointed out how he felt his career was progressing, that he had entered the Police at a high level and that he cannot, he believes, work in an office. He said he would get anxious in an office because of the experiences, where he might feel unsafe because of the requirements by the Police for him to wear a mask during COVID despite his certificate and the way he felt he was treated, not in accordance with their regulations. He reported he would feel like that in any other office and repeated several times that his work certification restrictions are to not work in an office for zero hours, which he says will limit him in any future career progression.
3. Findings on clinical examination
BSM was prompt and on time. We had a couple of technical issues, in that initially my microphone didn’t work and then he dropped out for a minute or two on two occasions. However we completed the assessment over approximately 1¼ hours. Mostly his answers about function and symptoms were evasive, obfuscating and empty of detail but then highly detailed about aspects of the workplace with the police and his career there, He showed no distractibility or difficulties with concentration throughout, recalling where we were in our conversation if the connection froze briefly. He appeared reasonably kempt and was superficially engaged although there was little rapport, particularly when I began asking about function in order to enable an assessment of his condition and impairment. There was no formal thought disorder. He does not describe a pervasive low mood, saying that he keeps his moods to himself, he is not irritable/anxious or tearful. He describes himself as demoralised and disappointed about what has happened at work with a repeated mention of anxiety. It was hard to pinpoint what this exactly meant in terms of actual symptoms of arousal or physical tension and he has no panic attacks. He says he has less confidence in himself but conversely is future-focused and motivated to move on. He has concerns about being a victim in future situations, particularly based in an office. He said he is anxious when driving but I could not identify any hypervigilance/hyperarousal. He has an onset insomnia as before.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary:
From the information I have, BSM would not currently meet the DSM5 criteria of significant mood or other symptoms required for a Persistent Depressive Disorder now. The level of anxiety symptoms he reports would meet the criteria for an Anxiety Disorder Not Otherwise Specified as I cannot elicit pervasive depression, panic, fears, hypervigilance. He is of probably maybe borderline clinical significance for Agoraphobia.
In terms of self-care, from what I could elicit he does provide care for his daughter, makes himself presentable for work and reported repeatedly that he does things around the home that are ‘useful for his family’ although says he requires prompting for this. From the details I was able to elicit, this would support the Medical Assessor’s determination of a class 2 impairment which is also the same determination with similar descriptors by the two IMEs.
In terms of travel, although he focused on his need for a support person in shops and inability to drive long distances due to anxiety, he does report leaving the house at times on his own, e.g. to go for one of his rare walks or to a medical appointment. He prefers to be with others when out of the house and this is a mild impairment.
Finally in terms of concentration, persistence and pace, the cognitive focusing and concentration aspects of role as a lecturer/tutor are significant with many hours of cognitive requirements, including focusing on tutorials, interacting with students, at times synchronously as well as asynchronously, and marking. There were no problems with focusing on the assessment or with attending to the pace of the assessment. Again, class 2 – mild impairment.”
As can be seen, BSM was a reticent historian particularly regarding his present functioning. This is consistent with findings made by the Medical Assessor, who was unable to build a rapport with BSM, and Dr Anderson, who noted “reluctance on the part of your client [BSM] to speak about personal history”. Through repeated questioning on behalf of the Medical Assessor examiner, the Appeal Panel are satisfied that an appropriate history of functioning in the relevant scales challenged on appeal has been taken.
In relation to self-care and personal hygiene, the Medical Assessor erred in concluding that the information provided did not fit in the complete clinical picture. No explanation was provided for that conclusion. The Appeal Panel, relying on the re-examination report, are satisfied that BSM fits within a class 2 impairment in this scale. BSM looks after himself adequately, is able to sufficiently present himself for his employment (which is in an online capacity) and would be able to live independently. There is no evidence the appellant would be unable to live independently without support, or that a family member or community nurse is required to visit to maintain a minimum level of hygiene or nutrition. BSM also provided evidence that he assists in the care of his young child. The Appeal Panel are of the view that the ability to care for a child, including assisting with bathing is directly relevant to capacity for self-care. This is consistent with class 2 impairment as found by the Medical Assessor.
In relation to travel, the Medical Assessor concluded there was inconsistency in the information provided by BSM without explaining that inconsistency or providing the appellant with an opportunity to address it. This was an error. The Appeal Panel rely on the re-examination report provided which shows that BSM is able to travel in limited circumstances without a support person, and take his daughter to the park (involving local travel) and to doctor’s appointments alone. To fit within class 3 impairment for this scale BSM must be unable to leave his own residence without a support person. There is no evidence of this and accordingly class 2 impairment, as assessed by the Medical Assessor, was appropriate.
In relation to concentration, persistence and pace, the appellant suggested that a class 3 impairment would be more appropriate in the circumstances and that the Medical Assessor did not have regard to findings of difficulties in engaging with BSM during the examination. The Appeal Panel were not satisfied that this ground of appeal was made out. The appellant has not demonstrated an error on the face of the MAC. A suggestion that a class is “more appropriate” is insufficient for the Appeal Panel to intervene. In any event, based on the re-examination report provided, the Appeal Panel are satisfied that class 2 impairment, as found by the Medical Assessor, was appropriate. BSM’ employment as a lecturer/tutor, even taking into account his modified work circumstances, would necessitate a level of concentration that is consistent with class 2 impairment at the highest. The examples given in class 3 for this scale would be entirely inconsistent with BSM’s demonstrated level of functioning.
Summary
On review of the MAC and the consideration of the submission of the parties, the Appeal Panel were satisfied that the MAC contained a demonstrable error on a number of occasions. Accordingly, a medical member of the Appeal Panel conducted a re-examination of BSM limited to the grounds raised in the appeal and in particular the PIRS challenged in submissions. Consistent with that re-examination and in the context of the MAC and the material provided by the parties, the Appeal Panel agree with the assessment of impairment in terms of the scales assessed by the Medical Assessor. Accordingly, the MAC will be confirmed.
Publication
On 17 June 2024 the appellant, through his solicitors, sought that any decision issued by the Appeal Panel be either redacted in whole or redacted limited to parts of the decision that would identify the appellant.
The views of the respondent were sought. In response, on 24 June 2024, the respondent indicated that they do not oppose the application and were content to be guided by the preference of the Commission.
Having considered the application made, the views of the respondent, and the powers contained in s 58(1)(a) of the Personal Injury Commission Act 2020 and the r 132(1) of Personal Injury Commission Rules 2021, the Appeal Panel are satisfied that it is appropriate to de-identify the decision to remove the name of the appellant, to be replaced with an appropriate identifier before the matter is published.
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