Bullers v State of New South Wales (Illawarra Shoalhaven Local Health District)
[2024] NSWPICMP 292
•15 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bullers v State Of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPICMP 292 |
| APPELLANT: | Michael Bullers |
| RESPONDENT: | State of New South Wales (Illawarra Shoalhaven Local Health District) |
| APPELLANT: | State of New South Wales (Illawarra Shoalhaven Local Health District) |
| RESPONDENT: | Michael Bullers |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 15 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; both parties appealed the Medical Assessment Certificate (MAC); worker submitted that there was additional relevant information and that the Medical Assessor (MA) made errors with respect to several psychiatric impairment rating scale (PIRS) categories; insurer submitted that MA erred by not making a deduction under section 323(1) and by adding a percentage whole person impairment (WPI) pursuant to paragraph 1.32 of the Guidelines for the effects of treatment; Appeal Panel found that additional relevant information would make no difference to outcome; Appeal Panel held that MA erred with respect to his ratings in some of the PIRS categories the appellant challenged; Appeal Panel held MA erred by not making a deduction under section 323(1) and by adding a percentage WPI pursuant to paragraph 1.32; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
Michael Bullers was employed by the State of New South Wales as a registered nurse. He was working at the Shoalhaven Memorial District Hospital on 1 March 2017 when a patient assaulted him, causing him to suffer a psychological injury.
The workers’ compensation insurer of the State of New South Wales (the insurer) made weekly payments of compensation to Mr Bullers at various periods thereafter until, it seems, 28 August 2022 and also paid compensation to him for expenses he had incurred up to August 2022 for treatment for his injury.
On 1 November 2022 Mr Bullers’ solicitors wrote to the insurer advising it that Mr Bullers claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 22% whole person impairment (WPI) from his injury. It enclosed with its correspondence a report dated 10 October 2022 from consultant psychiatrist Associate Professor Michael Robertson, on which Mr Bullers relied to support his claim. In the report Associate Professor Robertson advised that Mr Bullers had:
(a) a chronic major depressive disorder that was part of recurrent major depressive disorder;
(b) a chronic post-traumatic stress disorder, and
(c) a “putative major neurocognitive disorder attributable to presume cerebrovascular disease and other relevant medical conditions”. Associate Professor Robertson advised that there had been a work related exacerbation of Mr Bullers’ depressive illness and a specific work related psychological injury of post-traumatic stress disorder and potentially deleterious effects of psychopathological disturbance on physical health, although with respect to that latter matter issue Associate Professor Robertson advised that that was outside his expertise.
Associate Professor Robertson advised that there had been a work related exacerbation of Mr Bullers’ depressive illness and a specific work related psychological injury of post-traumatic stress disorder and potentially deleterious effects of psychopathological disturbance on physical health, although with respect to that latter matter Associate Professor Robertson advised that that was “outside his expertise”.
Associate Professor Robertson further advised he had assessed the overall degree of
Mr Bullers permanent impairment from his psychiatric illness was 24% WPI. With respect to the degree of Mr Bullers’ permanent impairment of that that due to his work injury, Associate Professor Robertson deducted 1/10th due to the contribution to it of pre-existing factors, with the result being that Associate Professor Robertson assessed the degree of Mr Bullers’ permanent impairment from his work injury was 22% WPI.Following the receipt of Mr Bullers’ claim for compensation for permanent impairment, the insurer’s solicitors arranged for Mr Bullers to be examined on 2 February 2023 by psychiatrist Dr Peter Young. In a report dated 7 February 2023 Dr Young advised that in his opinion following the assault on Mr Bullers on 1 March 2017 Mr Bullers initially suffered post-traumatic stress symptoms, which was an exacerbation of a long-standing depressive illness, but Dr Young considered that “the natural history of his underlying condition has overtaken these symptoms which have now receded into the background, and the predominant course of his current symptoms is his underlying pre-existing condition”. Dr Young also advised he assessed Mr Bullers had 22% WPI overall due to psychiatric illness, but with respect to the degree of that due to Mr Buller’s work injury, Dr Young deducted 50% for pre-existing conditions, such that he assessed that Mr Bullers had 11% WPI from his injury.
On 28 March 2023 the insurer wrote to Mr Bullers notifying him under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that it disputed it was liable to pay him compensation for permanent impairment from his injury. The reason it advised him for its position, in substance, that it relied on the report of Dr Young of
7 February 2023 who assessed the degree of his permanent impairment from his injury was 11% WPI which did not cross the threshold imposed by s 65A(3) of the 1987 Act for him to be entitled to compensation for permanent impairment.Mr Bullers then instituted proceedings in the Commission seeking determination of his claim for compensation for permanent impairment and also determination of a claim he made for payments of weekly compensation from 17 October 2022. The matter was referred to a Senior Member of the Commission, namely Ms Elizabeth Beilby, who with the consent of the parties on 31 May 2023 remitted Mr Bullers’ claim relating to compensation for permanent impairment to the President so that the matter could be referred to a Medical Assessor to assess various medical disputes between the parties arising from that claim.
On 5 June 2023 a delegate of the President duly issued a referral to the Medical Assessor, which was amended on 14 August 2023.
The Medical Assessor examined the appellant on 27 September 2023 to conduct the assessment. That examination was conducted using Microsoft Teams. The Medical Assessor issued a Medical Assessment Certificate (MAC) on 28 November 2023 in response to the referral in which he certified he had assessed the degree of Mr Bullers’ permanent impairment from his injury is 9% WPI.
Both parties have appealed against the Medical Assessor’s assessment of the medical disputes that were referred to him. Mr Bullers lodged his application for appeal on
20 December 2023. He relied upon the grounds for appeal listed at s 327(3)(b), (c) and (d) of the 1998 Act which read, respectively:· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The insurer lodged its application to appeal on 6 March 2024. It relied on the grounds provided in s 327(3)(c) and (d).
A delegate of the President was satisfied that at least one ground for appeal had been made out in each application. With respect to the insurer’s application, the delegate also found that there were special circumstances that justified increasing the period within which the insurer could appeal against the assessment of the Medical Assessor.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor detailed a brief history relating to the circumstances that gave rise to Mr Bullers’ injury. The Medical Assessor also recorded that Mr Bullers had a past psychiatric history, which he detailed in the following terms:
“Mr Bullers gave an account of his past psychiatric history explaining that in 1st or 2nd form of high school, he experienced the onset of depression which culminated in his admission to Macquarie Hospital at around age 18 years. He recalled that he was very sad at the time and became suicidal. He was living at home with his mother and she did everything for him. He recalled engaging in therapy and being prescribed medication during the hospital admission. He undertook follow-up with a psychiatrist on discharge and he was maintained on medication for approximately six months. He felt better and therefore ceased follow-up.
Subsequent to the above circumstances, Mr Bullers remained well for approximately five years at which time he again became suicidal. He took an overdose of Panadol and spent a few days at Concord Hospital. He was not prescribed medication nor did he engage in psychiatric follow-up. For a prolonged period thereafter, Mr Bullers did not experience suicidal thoughts. Although there were episodes of low mood, he was able to maintain his participation in work.
15 to 20 years ago, Mr Bullers undertook a further suicide attempt leading to his admission to Shellharbour Hospital. His general practitioner then managed his depression. He expressed uncertainty regarding the medication that was prescribed at the time. By way of context, he stated that this was around the tim that his ex-wife left with their daughter.
Thereafter, Mr Bullers remained well until he developed a milder episode of depression. He was introduced to Dr Pulley, a psychiatrist and was prescribed various medications. He would find himself very low in his mood for a day or two following which he would recover. Despite the severity of these periods of depression, they were not of such a degree as to undermine his ability to function.”
The Medical Assessor noted that for the prior 13 years ago Mr Bullers had experienced cardiovascular issues, including suffering a stroke, heart attack and aortic aneurism.
The Medical Assessor noted that the treatment Mr Bullers currently receives consists of consulting his general practitioner and consulting, by zoom, his psychiatric Dr Rafe Pulley, and taking several medications daily, including Effexor XR and Olanzapine which the Appeal Panel notes relate to his psychiatric illness.
The Medical Assessor recorded making the following findings from his clinical examination of Mr Bullers:
“As stated above, the assessment was undertaken using audio visual technology. The quality of the connection was satisfactory. Mr Bullers presented as an overweight man with cropped hair and about one day’s beard growth. He exhibited a restricted range of emotional expression. His account reflected a dysthymic mood with brief periods of worsening depression. He described anxiety, hypervigilance, avoidance and intrusive recollections of the subject circumstances. His speech was generally normal in terms of rate, tone and volume, though, on occasion during the interview he was hesitant. No evidence of overt deficits of concentration or memory were apparent during the interview. At the very end of the assessment, the connection failed. By then the interview had essentially completed.”
The Medical Assessor provided the following summary of Mr Bullers’ injury and his diagnosis of it:
“Mr Bullers gave a history of Major Depressive Disorder characterised by several discrete episodes of profound depression with suicidality and the need for hospitalisation in the context of severe symptoms. By the time of the subject circumstances, he was already under the care of his current treating psychiatrist. It is evident that he experienced a relapse of depressive symptoms which have since largely remitted such that by the time of the assessment, he did not meet criteria for a depressive condition.
Mr Bullers presented an account of anxiety symptoms characterised by hypervigilance, avoidance and intrusion symptoms on a background of a serious physical assault. The symptoms were evidently of such prominence that when he was confronted with an aggressive verbal interchange, something which he would have managed effectively in the past, he found himself overwhelmed with anxiety. These symptoms persisted at the time of the assessment. Namely, he continues to experience features sufficient to meet DSM-5 criteria for Posttraumatic Stress Disorder, notwithstanding his account of some improvement.
Although Mr Bullers had in the past suffered from episodes of depressive illness, it is not apparent that he was suffering depressive symptomatology sufficient to meet diagnostic criteria prior to the work events and by his account, there was no evidence of psychiatric impairment.
Although the prospect of cognitive impairment has been identified, formal psychometric testing could not be identified amongst the documents. It is considered imprudent to conclude upon the presence of cognitive impairment as a formal diagnosis or to utilise the DSM-5 diagnosis of Major Neurocognitive Disorder in the absence of comprehensive psychometric testing upon which to attribute symptoms to factors such as cerebrovascular disease or other causes of cognitive and psychiatric symptoms.”
The Medical Assessor assessed Mr Bullers’ permanent impairment from his injury in accordance with paragraph 11.11 and 11.12 of the Guidelines, which requires rating his function in six areas of activity and conduct, which together are termed the Psychiatric Impairment Rating Scale (PIRS).
Mr Bullers in his appeal against the MAC has challenged the Medical Assessor’s rating of his impairment in the PIRS categories of self-care and personal hygiene, social and recreational activities, concentration, persistence and pace (CPP), and employability.
In the PIRS rating form within the MAC the Medical Assessor recorded his ratings for
Mr Bullers’ impairment for all the PIRS categories and provided reasons for his ratings. With respect to the categories that Mr Bullers has challenged, the Medical Assessor’s scores and reasons were as follows:
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
Mr Bullers stated that he dresses every day but acknowledged that he is “lax” with respect to personal care and he does not shower every day. He participates in household tasks. He eats regularly. His account indicated that whilst impaired, he is not so compromised that he would be unable to live independently and he shares in the household with other family members. His account reflects mild impairment arising from his psychiatric condition/
Social and recreational activities
2
Mr Bullers described a reduction in his social and recreational participation. He is reticent to go out alone but will do so if obligated but he does not go out alone to socialise and to involve himself in recreational activities. He will go out with family albeit to a limited degree and has travelled on a holiday with his wife although he found aspects of the experience anxiety provoking. An overall assessment of his level of participation indicates a mild impairment having regard for the breadth of activities in which he has participated notwithstanding his preference to go out in company.
Concentration, persistence and pace
2
Mr Bullers engages in limited activities that demand persistence and pace. Housework represents and (sic) activity that may be undertaken at one’s own pace. He stated however that he is able to sustain tasks. He stated that he is able to watch a movie and did not identify deficits in concentration. He stated that he will engage in a conversation. At interview, there were no overt deficits with respect to memory and concentration although Mr Bullers reported compromised memory. Overall, his account is indicative of mild impairment as was his presentation at interview.
Employability
4
The nature and severity of Mr Bullers’ psychiatric symptomatology is such that he is considered severely impaired. He would be unable to sustain more than a day or two of work in a highly supportive environment with little if any contact with the public.
The Medical Assessor’s ratings in the other PIRS categories of travel and social functioning were both Class 2. The Medical Assessor noted that median of all his Class scores was 2 and the aggregate of his scores was 14. The Medical Assessor noted that converted to 7% WPI.
The Medical Assessor also explained in the MAC that although Mr Bullers had a past history of major depressive disorder, it was “evident he was not suffering a depressive condition prior to the work injury”. For that reason the Medical Assessor said “there is no deductible proportion”, by which he meant he considered that no proportion of Mr Bullers’ current permanent impairment was due to Mr Bullers’ pre-existing major depressive disorder, and that all of his impairment was attributable to the work psychiatric injury.
The Medical Assessor also explained that he added 2% WPI to the permanent impairment he found Mr Bullers had, based on his ratings in the PIRS categories, for the effects of treatment. It is apparent that the Medical Assessor did that in accordance with what he considered was the requirement of paragraph 1.32 of the Guidelines. The Medical Assessor’s reasoning for that was as follows:
“For an adjustment for the effects of treatment to be considered in accordance with the Guidelines, effective long-term treatment must have resulted in either a substantial or total elimination of the original degree permanent impairment and, if the treatment is withdrawn, the claimant is likely to revert to the original degree of impairment. Based on the available information an adjustment for the effects of treatment is necessary because the improvement described by Mr Bullers is considered attributable to the treatment provided to him. It is apparent that the improvement has led to a reduction in the severity of his impairment.”
The Medical Assessor accordingly certified that he assessed the degree of Mr Bullers’ permanent impairment from his injury is 9% 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Bullers to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to enable the Appeal Panel to determine the respective appeals that the parties have made.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing Mr Bullers submissions relating to his appeal against the MAC, so as to provide a summary of them, they are that there is additional information that establishes the examination the Medical Assessor conducted by audiovisual link was not thorough.
Mr Bullers submitted that he was not afforded the opportunity to clarify information he provided to the Medical Assessor during the examination or to clarify some of the information he had provided to the Medical Assessor.Mr Bullers submitted that the Medical Assessor did not adequately consider his pre-injury level of function in the PIRS for self-care and personal hygiene, social and recreational activities, CPP and employability. Mr Bullers submitted that the Medical Assessor’s ratings of his impairment in these PIRS categories were “glaring improbable” based on “the true facts”.
Mr Bullers submitted that the Medical Assessor’s rating of his impairment in self-care and personal hygiene as Class 2 is inconsistent with the facts because he cannot live independently and needs prompting from his wife and daughter to do simple tasks.
Mr Bullers submitted that the rating of his impairment in self-care and personal hygiene should be Class 3.Mr Bullers submitted that the Medical Assessor did not question him sufficiently with respect to his function in social and recreational activities. Mr Bullers referred to a statement he signed on 20 December 2023 in which he detailed matters relating to his social and recreational activities. Mr Bullers submitted that the Medical Assessor relied on a holiday he took in February 2020 but the Medical Assessor neglected to obtain details about the holiday. Mr Bullers submitted that the Medical Assessor was required to assess his impairment as of the time of assessment and the holiday he took in February 2020 was not relevant to his present impairment in social and recreational activities. Mr Bullers submitted that based on the history the Medical Assessor obtained relating to his social activities and based on what he said in his statement of 20 December 2023, the Medical Assessor ought to have rated his impairment in social and recreational activities as Class 3 or 4, but not 2.
With respect to CPP the appellant submitted that the Medical Assessor did not identify any moderately intellectually demanding task in which he could participate. Mr Bullers submitted that the Medical Assessor seemed to have based his rating of his impairment in CPP on his being able to watch a movie but he submitted that he was not questioned regarding whether he could follow the plot of a movie or follow semi-complex instructions. Mr Bullers referred to his statement of 20 December 2023 in which he described issues regarding his memory, multitasking, concentration, and inability to follow complex instructions.
Mr Bullers submitted that the Medical Assessor did not engage with the assessments that other independent medical examiners had provided, other than to repeat their findings.
Mr Bullers submitted the Medical Assessor did not explain why his opinion differed from their assessments.Mr Bullers submitted that a proper consideration of the evidence discloses that his impairment in CPP is Class 3.
With respect to employability Mr Bullers submitted that the Medical Assessor did not provide reasons for concluding he would be unable to sustain more than a day or two of work in a highly supportive environment with little or any contact with the public. Mr Bullers noted that Dr Young and Associate Professor Robertson both rated his impairment in employability as Class 5. Mr Bullers submitted that the Medical Assessor did not explain why his assessment differed from the assessments of Associate Professor Robertson and Dr Young. Mr Bullers highlighted that he had not worked since August 2018 and had not made any progress to a meaningful return to any type of work. Mr Bullers submitted that all of the evidence indicates that he could not sustain any employment.
Paraphrasing the insurer’s submissions in response to the submissions Mr Bullers’ made in support of his appeal against the MAC, they are that the Medical Assessor obtained a thorough history relating to Mr Bullers’ function in self-care and personal hygiene and that the Medical Assessor’s rating of Mr Bullers’ impairment in self-care and personal hygiene as Class 2 is consistent with the history the Medical Assessor obtained.
The insurer also submitted that the Medical Assessor obtained a thorough history relating to Mr Bullers’ function in social and recreational activities and the Medical Assessor’s ratings of Mr Bullers’ impairment in social and recreational activities accords with the history the Medical Assessor obtained on the day of assessment.
The insurer submitted that the Medical Assessor undertook an examination of Mr Bullers’ CPP and did not merely rely on Mr Bullers’ self-reporting or the documentary evidence provided. The insurer highlighted that the Medical Assessor’s findings from his examination of Mr Bullers demonstrated that Mr Bullers exhibited normal pace (during the assessment). The insurer highlighted the Medical Assessor did not record Mr Bullers had any difficulties in concentration during the examination or in persisting with the examination during the course of it. The insurer submitted that the Medical Assessor’s clinical observations should be given significant weight over Mr Bullers’ self-reporting of his function. The insurer submitted that on the totality of the evidence the Medical Assessor reached a correct conclusion regarding
Mr Bullers’ impairment in CPP.With respect to employability, the insurer submitted that the Medical Assessor was not obliged to adopt the assessments of Associate Professor Robertson or Dr Young but was required to undertake his own assessment based on the presentation of Mr Bullers at examination. The insurer submitted that based on Mr Bullers’ presentation the history the Medical Assessor obtained and the Medical Assessor’s findings and the documentary evidence provided to the Medical Assessor, the Medical Assessor’s conclusion that
Mr Bullers was capable of working for a day or two a week in a supportive environment without public contact supported a Class 4 rating of Mr Bullers’ impairment in employability.With respect to its appeal against the MAC, the insurer submitted the Medical Assessor erred and based his assessment of Mr Bullers’ permanent impairment on incorrect criteria by not making a deduction under s 323(1) of the 1998 Act for a proportion of Mr Bullers’ current permanent impairment that was due to a pre-existing condition Mr Bullers had. The insurer noted that the Medical Assessor obtained a history of Mr Bullers having previous psychiatric illness. The insurer submitted that the history the Medical Assessor obtained made it clear that Mr Bullers suffered lifelong depressive episodes with suicidal ideation which had gone through periods of remission for several years before resurfacing. The insurer submitted that the Medical Assessor ought to have made a deduction of 1/10th for the portion of Mr Bullers’ permanent impairment that was due to his past psychiatric illness.
The insurer also submitted that in the event that the Appeal Panel were to find error in the MAC and reassess Mr Bullers with a permanent impairment of more than what the Medical Assessor had, then the Appeal Panel ought to make no allowance for the effects of treatment because, in that circumstance, it would be apparent that long term treatment of Mr Bullers injury has not resulted in any apparent substantial or total elimination of his permanent impairment.
In response to those submissions, Mr Bullers submitted that it is not sufficient merely to identify a pre-existing condition to engage s 323(1) of the 1998 Act. Mr Bullers submitted that before a deduction can be made under s 323(1) it is necessary that the pre-existing condition be found to contribute to the permanent impairment he has from his injury. He submitted it is also necessary to explain how the pre-existing condition contributes to his impairment.
Mr Bullers submitted that that explanation requires an explanation of how his pre-existing condition has resulted in him having a greater degree of impairment than what would otherwise have been the case. It is not sufficient, according to Mr Bullers, that his pre-existing condition made him more vulnerable to injury, rather it must contribute directly to his current impairment.Mr Bullers submitted that the Medical Assessor considered the evidence regarding his past psychiatric history and concluded that no part of his current impairment is due to it.
Mr Bullers noted that the Medical Assessor diagnosed his injury as post-traumatic stress disorder and he submitted that there is no evidence that he had been diagnosed with this condition prior to his workplace injury.Mr Bullers submitted that the insurer did not identify in its submissions any evidence of his having pre-existing psychiatric impairment before his suffered injury. Mr Bullers submitted that the Medical Assessor was correct not to make a deduction under s 323(1) of the 1998 Act.
Mr Bullers observed that the Medical Assessor added 2% WPI for the effects of treatment in accordance with paragraph 1.32 of the Guidelines. Mr Bullers submitted that the engagement of paragraph 1.32 was a matter for the Medical Assessor, and will be a matter for the Appeal Panel should the Appeal Panel issue a fresh MAC. Mr Bullers submitted that the fact that the Appeal Panel may rate his impairment higher than the Medical Assessor does not automatically negate the fact that there has been a reduction of the severity of any impairment which is attributable to the long term effects of his treatment.
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.
Additional information
Section 327(3)(b) of the 1998 Act allows as a ground for appeal against a medical assessment the “availability of additional relevant information (but only if the additional information was not available to, and could not have reasonably been obtained by, the appellant before the medical assessment appealed against”.
As indicated earlier, the additional information on which Mr Bullers seeks to rely to establish this ground for appeal is information contained in a statement he signed on
20 December 2023. The information he provides within that statement falls within three categories, the first being his personal details, the second his details relating to his function in the several PIRS categories he has challenged in his appeal, and the last matters that occurred during the Medical Assessor’s examination of him, including questions that the Medical Assessor asked of him and his response to those questions, problems experienced with the audiovisual link towards the end of the examination, and how he felt during the examination.The information he provides in his statement, insofar as it contains his personal details and details relating to his function in the PIRS he had challenged, is not additional information because this information was available to him and could reasonably have been obtained by him before the medical assessment was done. That is to say, his conduct or activity in the PIRS categories was obviously known to him prior to the assessment of his permanent impairment by the Medical Assessor and could have been detailed by him in a written statement prior to the assessment.
The information he provides in his statement, insofar as it relates to what occurred during the Medical Assessor’s examination of him and how he felt, is additional information because obviously that information could not have been obtained by him before the medical assessment. However, the Appeal Panel considers that that information is not relevant and hence does not establish the ground for appeal provided in s 327(3)(b) of the 1998 Act.
The issue the Appeal Panel must address when considering this ground is established, is whether the additional information would lead the Appeal Panel to a different conclusion than that reached by the Medical Assessor.[1]
[1] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC929 at [13]; see also State of New South Wales v Ali [2018] NSWSC1783 at [32] – [39] and CSR Ltd v Ewins [2020] NSWSC511 at [43] – [50].
The statement of Mr Bullers insofar as contains additional information would not, of itself, lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor. The Appeal Panel has found that the Medical Assessor made errors with respect to his rating of Mr Bullers’ impairment in two of the PIRS categories and also made an error by not making a deduction under s 323 (1), and the Appeal Panel explains its reasons for those findings below. The Appeal Panel’s finding of those errors is unrelated to the additional information that Mr Bullers has provided in his statement. Saying that in somewhat of a reverse way, the additional information that Mr Bullers provides in his statement does not relate to the errors the Appeal Panel found.
With respect to the problem with the audiovisual link, the Medical Assessor did not indicate in the MAC that this affected his ability to compose a clinical history sufficient to enable him to conduct an assessment of Mr Bullers’ permanent impairment from his injury. Indeed, the Medical Assessor noted in the MAC that at the time this issue occurred, his examination of Mr Bullers was essentially completed.
The Appeal Panel also considers that the history the Medical Assessor detailed in the MAC was thorough. He detailed the relevant circumstances that precipitated the onset of
Mr Bullers’ injury. He detailed the treatment that Mr Bullers has received. He detailed the symptoms Mr Bullers experiences. He was able to observe and make findings regarding
Mr Bullers’ demeanour and affect during the examination. He was able to make findings regarding Mr Bullers’ concentration and memory during examination.The Medical Assessor is a psychiatrist. He has experience in clinical practice. It can be inferred he has skill and experience in how a clinical examination should be conducted to enable a diagnosis to be made and also to make an assessment of permanent impairment of a worker. There is no evidence whatsoever to indicate Mr Bullers has any clinical experience and indeed it can be reliably assumed he does not. Insofar as the additional information contains Mr Bullers’ evidence of what occurred and what was said during the Medical Assessor’s examination and his impressions of the Medical Assessor’s ability to conduct an assessment because of the audiovisual issue during the examination, or his impression regarding the Medical Assessor’s conclusions, it has no weight.
Further, additional reasons as to why the additional information relating to how Mr Bullers felt during the examination also has no weight, in that the Medical Assessor was able to make findings on Mr Bullers demeanour and affect during examination.
As said, the additional information of itself does not lead the Appeal Panel to come to different conclusion from that reached by the Medical Assessor.
Self care and personal hygiene
The Appeal Panel does accept Mr Bullers’ submission to the effect that the Medical Assessor erred by rating his impairment in self-care and personal hygiene as Class 2.
The examples provided in Table 11.1 of the Guidelines for a Class 2 impairment in this PIRS are “able to live independently; looks after self adequately, although may look unkept occasionally; sometimes misses a meal or relies on takeaway food”. The descriptors provided for a Class 3 are:
“Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2 – 3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor noted that Mr Bullers dresses every day but is “lax” with his personal care and does not shower every day. The Medical Assessor noted that Mr Bullers participates in household tasks. The Medical Assessor noted that Mr Bullers eats regularly. Within the body of the MAC the Medical Assessor also noted that Mr Bullers undertakes outdoor maintenance, laundry and sweeping, whereas Mr Bullers’ wife manages the home and organises bills and that his step-daughter also cooks, cleans and shops.
The Appeal Panel considers, that when the MAC is considered as a whole, the Medical Assessor has taken into account conduct of Mr Bullers that is relevant to assess his impairment in this PIRS.
The Medical Assessor has concluded that Mr Bullers is able to live independently, although does have some impairment in this category. The Appeal Panel observes that the activities that Mr Bullers does about the household correlate with activities generally done by males of his age and background.
The Appeal Panel considers that the matters that the Medical Assessor has highlighted in the PIRS rating form best correlate with the descriptors provided for a Class 2 impairment, and not a Class 3 impairment. The Appeal Panel consequently discerns no error in the exercise by the Medical Assessor of his clinical judgement in rating Mr Bullers’ impairment in this PIRS as Class 2.
Social and recreational activities
The examples provided in Table 11.2 of the Guidelines for a Class 2 impairment in social and recreational activities are “occasionally goes out to such events example without needing a support person, but does not become actively involved (eg dancing, cheering favourite team)”. The examples provided for a Class 3 impairment are:
“Rarely goes out to such events, and mostly when prompted by family or close friends. Will not go out with a support person. Not actively involved, remains quiet and withdrawn.”
The Appeal Panel considers that the Medical Assessor erred by rating Mr Bullers’ impairment in this category as mild, that is Class 2.
The Medical Assessor recorded in the MAC that Mr Bullers did not like going out and that when he had done so he became nervous. The Medical Assessor noted that Mr Bullers became anxious in the presence of noise and that he is watchful when he is out. In the PIRS rating form the Medical Assessor recorded that Mr Bullers had described a reduction in his social and recreational participation and that he was reluctant to go out alone but would do so if he was obligated. The Medical Assessor noted that Mr Bullers does not go out alone to socialise and does not involve himself in recreational activities. The Medical Assessor noted that Mr Bullers does go out with his family but only to a limited degree and that he did previously go on a holiday with his wife.
The Appeal Panel considers that those matters correlate with an impairment falling with the descriptors provided for a Class 3 impairment. They indicate that Mr Bullers rarely goes out and only does so with the support of his family and even then is quiet and withdrawn.
The matters the Medical Assessor recorded in the MAC relating to Mr Bullers’ function in social and recreational activities did not accord with an impairment fitting the descriptors provided for a Class 2 impairment.
Consequently, the Appeal Panel accepts the submission of Mr Bullers to the effect that the Medical Assessor erred in the exercise of his clinical judgement to rate his impairment in this PIRS as Class 2 and ought to have rated it as Class 3.
CPP
The Appeal Panel does not accept the submissions of Mr Bullers that the Medical Assessor erred by rating his impairment in this category as Class 2 and not as Class 3.
The Appeal Panel observes that in the reasons the Medical Assessor provided for his rating of Mr Bullers’ impairment in this category, the Medical Assessor referred to Mr Bullers participation in housework. The Appeal Panel is aware that the capacity to undertake housework forms part of the assessment of self-care, but the Medical Assessor’s specific focus of what he detailed in the PIRS rating form for CPP was a concentration aspect of the housework Mr Bullers does. That is, what the Medical Assessor detailed involved Mr Bullers’ conduct in his concentration and pace whilst doing housework. The conduct the Medical Assessor described indicated that there was no real deficit in Mr Bullers’ conduct. That is to say, the Medical Assessor’s explanation was to the effect that in so far as household tasks involved conduct of Mr Bullers relating to his concentration, he was able to do the task and do it at his own pace.
Even if this were excluded from the reasons for the rating of CPP the Medical Assessor identified that Mr Bullers was able to concentrate sufficiently to watch a movie. The Appeal Panel notes that task requires concentration of a viewer in order to follow the plot of the movie.
This PIRS domain is one where the Medical Assessor is able to evaluate impairment objectively at the time of the assessment. He noted during examination of Mr Bullers, that
Mr Bullers displayed no overt deficit with respect to his memory and concentration. The Appeal Panel observes, from the MAC, that Mr Bullers was able to provide a history to the Medical Assessor, report his symptoms to the Medical Assessor and his function relating to his activities of daily living and social activities.The Medical Assessor noted that on occasion Mr Bullers was hesitant during the examination but the Medical Assessor did not indicate any difficulty in interviewing Mr Bullers during the examination.
The descriptors provided in Table 11.5 of the Guidelines for a Class 2 impairment are:
“Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding task for periods of up to 30 minutes and then feels fatigued or develops headache.”
The descriptors provided for a Class 3 impairment are:
“Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), makes significant repairs to motor vehicle, typing long documents, follow a pattern for making clothes, tapestry or knitting.”
Given the matters that the Medical Assessor highlighted in the PIRS rating form, and noting too firstly that the Medical Assessor did not indicate in his findings from his examination of
Mr Bullers that Mr Bullers demonstrated any deficit with his memory or concentration and secondly that the Medical Assessor did not indicate any difficulty in interviewing Mr Bullers and obtaining a history from him, other than his being hesitant on occasion, the Appeal Panel considers that the Medical Assessor was correct to correlate Mr Bullers’ impairment in CPP with the descriptors for a Class 2 impairment, rather than a Class 3 impairment. In other words, based on what Mr Bullers reported he is able to do and based on what the Medical Assessor observed during the examination, Mr Bullers’ function in CPP best accords with the function described by the descriptors for a Class 2 rating.The Appeal Panel discerns no error in the exercise by the Medical Assessor of his clinical judgement in rating Mr Bullers’ impairment in this PIRS as Class 2.
Employability
The Appeal Panel accepts Mr Bullers’ submission that the Medical Assessor erred by rating his impairment in employability as Class 4 and not as Class 5.
The descriptors provided in Table 11.6 for a Class 4 impairment are:
“Cannot work more than 1 or 2 days at a time, less than 20 hours per fortnight. Pace reduced, attendance is erratic.”
The single descriptor provided for a Class 5 impairment is “cannot work at all”.
What the Medical Assessor has described in the PIRS rating form for assessing Mr Bullers’ impairment in this category as Class 4 describes, in the Appeal Panel’s view, what is commonly described as employment in a sheltered workshop. The work that the Medical Assessor has described that Mr Bullers is capable of doing is work that requires a high level of support and excludes him from having contact with the public, and does not identify what such employment might be. Absent Mr Bullers having such support in a workplace and being able to avoid public contact in a workplace, he would not be able to work. In substance, the effect of his injury is such that there is no job available in which he could be employed.
If an injured worker’s only capacity is to be engaged in sheltered workshop employment, then in effect the worker’s impairment in employability is total.
Section 323
The evidence revealed that Mr Bullers had for a long time suffered repetitive episodes of severe depression, also at times termed “mild PTSD” in the notes, with flashbacks and recurrent intrusive memories of prior assaults and trauma. His depression was consequently chronic.
The diagnosis the Medical Assessor made of Mr Bullers’ injury, which neither party challenged, was post-traumatic stress disorder. The Appeal Panel notes that depressive symptoms are symptoms within one of the criteria required for a diagnosis of post-traumatic stress disorder to be made.
The Medical Assessor’s reasoning for not making a deduction under s 323(1) was that
Mr Bullers was not suffering symptoms from his pre-existing chronic depression at the time his work injury arose. Whilst that is a relevant factor for a Medical Assessor to weigh when considering whether a deduction should be made under s 323(1) of the 1998 Act, it is not however determinative of whether a deduction should be made. What s 323(1) requires is a consideration of whether a pre-existing condition contributes a part of the impairment a worker has from an injury as of the time of assessment, and if so, an assessment of what that part is. Consistent with what Mr Bullers submitted, even if a pre-existing is asymptomatic at the time the injury is suffered, if the evidence is that the condition contributes to the present impairment of a worker then a deduction must be made.[2] As Mr Bullers also submitted in order that a pre-existing condition can be found to contribute to the degree of permanent impairment a worker has from a work injury the pre-existing condition must make the impairment the worker has from the injury greater than what it otherwise would have been without the pre-existing condition.[3][2] Cole v Wenaline Pty Limited [2020] NSWSC78 at [16].
[3] Ryder v Sundance Bakehouse [2015] NSWSC526 at [45].
The evidence establishes that Mr Bullers’ depression was long standing prior to his suffering his workplace injury. The Appeal Panel considers that his symptoms from his post-traumatic stress disorder are more severe than what they otherwise would have been had he not suffered depression. His injury is post-traumatic stress disorder, and part of his impaired function and clinical presentation now are due to his depressive symptoms. These are worse now than what would otherwise have been the case because of his pre-existing chronic depression. But for his pre-existing depression, his impaired function now as a consequence of his injury would not be as severe. Consequently, a proportion of his permanent impairment from his work injury is due to his pre-existing condition.
The Medical Assessor was consequently wrong to find that a proportion of Mr Bullers’ permanent impairment from his injury was not due to his pre-existing chronic and severe depression. That error was material to the outcome.
Treatment
The treatment that Mr Bullers has been receiving both before his work injury and after is essentially the same. Beforehand he was taking antidepressants and a mood stabiliser and consulting a psychiatrist and a nurse. Currently he takes an antidepressant and an antipsychotic similar to a mood stabiliser. Reading the contemporaneous documentation he now however receives less intervention from clinicians than he did prior for his pre-existing condition.
Notwithstanding the long-standing treatment Mr Bullers has had, which has remained essentially the same for a long time, he remains psychiatrically unwell. The treatment he has over a long period, both for his pre-existing condition and his injury, has not resulted in an apparent substantial or total elimination of his impairment. Consequently, paragraph 1.32 of the Guidelines cannot be engaged.
Correcting the errors
As the Appeal Panel has found errors in the MAC it must revoke the MAC and issue a new MAC with those errors corrected.
With respect to the errors regarding the Medical Assessor’s rating of Mr Bullers’ impairment in social and recreational activities, the Appeal Panel corrects the error by rating Mr Bullers’ impairment as Class 3. With respect to the Medical Assessor’s error with his rating of
Mr Bullers’ impairment in employability, the Appeal Panel corrects that error by rating it as Class 5. This results in PIRS ratings of 2,3,2,2,2 and 5. A total of 16 with a median class of 2 being a 9% WPI.For the reasons above at [93] and [93] there is no adjustment for the effects of treatment.
With respect to the Medical Assessor’s error by not making a deduction under s 323(1) of the 1998 Act, the Appeal Panel considers that it is too difficult to determine precisely the extent to which Mr Bullers’ pre-existing chronic depression contributes to his present permanent impairment and the Appeal Panel assumes, in accordance with s 323(2) of the 1998 Act, that the deductible proportion for s 323(1) is 10%. Making that assumption is not at odds with the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 November 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2980/23 |
Applicant: | Michael Bullers |
Respondent: | State of New South Wales (Illawarra Shoalhaven Local Health District) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Samson Frederick Roberts and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric/psychological disorder | 1/03/2017 | Chapter 11 | - | 9% | 1/10 | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% WPI | |||||
0