Buxton v Stewart House
[2023] NSWPICMP 189
•8 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Buxton v Stewart House [2023] NSWPICMP 189 |
| APPELLANT: | Nick Buxton |
| RESPONDENT: | Stewart House |
| Appeal Panel | |
| MEMBER: | Brett Batchelor |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 8 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal by worker against findings in Medical Assessment Certificate (MAC) in respect of the psychiatric impairment rating scale (PIRS) category of travel; finding of error on the part of the Medical Assessor in failing to provide adequate reasons for placing the appellant worker in Class 1 of the PIRS for travel and making such a finding on inadequate evidence; appellant worker re-examined by a member of the Appeal Panel; Held – finding that the appellant should be placed in Class 2 for travel; MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2022 Nick Buxton (the appellant/Mr Buxton) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 November 2022.
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 (the 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered psychological injury, deemed to have occurred on 27 March 2021, in the course of his employment as a residential supervisor at the respondent’s premises in a suburb of Sydney. He experienced cumulative stressors at work dealing with difficult children, often from fractured backgrounds and traumatised by their experience, with management of the respondent’s facility, and with change in that management. Mr Buxton ceased work in March 2021.
The appellant came under the care of general practitioner, Dr Lim, in April 2021 and was referred to Robbie Matek, psychologist, and to Dr David Kumagaya, psychiatrist, for treatment.
The applicant was independently medically assessed by Dr Michael Hong on
12 November 2021 and by Dr Vasantha Pothala on 9 February 2022.
PRELIMINARY REVIEW
The 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 Panel determined that the worker should undergo a further medical examination because it found error in the failure of the Medical Assessor to provide adequate reasons for placing the appellant in Class 1 in the psychiatric impairment rating scale (PIRS) in respect of travel, and there was insufficient information recorded by the Medical Assessor in the MAC for the Panel to make its own assessment.
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
Professor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 26 April 2023 and reported to the Panel on 1 May 2023.
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.
Appellant
In summary, the appellant submits that the Medical Assessor has committed demonstrable errors in:
(a) assigning Class 1 for travel on the basis of an ability to “drive to new environments without supervision” when there is no evidence to support such a conclusion, and
(b) failing to provide adequate reasons explaining the reason for assigning Class 1 for travel.
The appellant submits that the Medical Assessor has made an assessment based on incorrect criteria in assigning him to Class 1 for travel on the basis of evidence that more appropriately supports a finding of Class 2 for travel.
The appellant refers to the assessments of Dr Hong and Dr Pothala and the reasons they provided for their assessments.
The appellant refers to the descriptors for Classes 1 and 2 of Table 11.3 of the Guidelines.
The appellant refers to the history recorded by Medical Assessor Chew in the MAC in respect of “Social activities/ADL”, and the Reason for Decision provided by him for classification 1 in respect of travel, namely “Is able to travel independently Agree with
Dr Pothala”.The appellant notes that the key differences between Classes 1 and 2 for travel in Table 11.3 of the Guidelines is the ability to “travel to new environments without supervision”. The appellant submits that any evidence from which such a conclusion could be inferred is not recorded in the MAC, the Statement of Reasons, or the PIRS Table 11.8. Such evidence is not recorded in the histories obtained by either Dr Hong or Dr Pothala, even though
Dr Pothala assigned Class 1.The appellant submits that the evidence demonstrated that he is able to drive without supervision but only to familiar places such as his children’s sports, school, the gym, and the shops. According to the evidence, the appellant notes that all of these activities were carried out by him prior to his injury, and therefore it can be reasonably inferred that they are familiar venues to him.
The appellant notes that the Medical Assessor agreed with Dr Pothala, but Dr Pothala did not record any evidence that could support a finding that he can travel/drive to new environments independently.
The appellant submits that the assessment is based on incorrect criteria, and that a conclusion based on no evidence is a demonstrable error.
The appellant submits that if there was any evidence elicited by the Medical Assessor on which he could base his conclusion, it is not recorded in the MAC or in the Statement of Reasons.
The appellant submits that the explanation provided by the Medical Assessor is too brief, and his statement that he agreed with Dr Pothala is inadequate in the face of there being no evidence recorded to the effect that he could travel to new environments without supervision. There is no evidence provided by the Medical Assessor as to what these new environments are and how they differed from the familiar environments to which he is able to travel.
The appellant submits that a cursory statement without explanation is insufficient for a Medical Assessor to discharge his duty, and such a statement based on no evidence is also insufficient to discharge the duty. The failure to give reasons is a demonstrative error.
The appellant submits that the Panel ought to find error and conduct a re-examination to obtain evidence relevant to the assessment of the PIRS category of travel.
Respondent
In reply, the respondent submits that the fact that the Medical Assessor records a history that:
(a) the appellant is able to travel independently;
(b) he agrees with Dr Pothala, and that
(c) Dr Pothala records a similar history of the appellant driving his children to school and sport, and records that he is able to drive on his own as well as travel to new places on his own, leading to the doctor to assess Class 1 for travel,
is entirely consistent with the descriptor for travel in Table 11.3.
The respondent submits that the Medical Assessor is required to undertake a clinical assessment including information provided by the appellant, but also from other medical reports. To that extent the history recorded by Dr Pothala is relevant to the assessment by the Medical Assessor.
The respondent quotes an excerpt from another Medical Appeal Panel matter to submit that the question of the classification under the PIRS scales is very much for a Medical Assessor after balancing all of the information before him. There can be some grey areas in which other minds may ascribe a higher or lower rating, but unless a glaringly improbable categorisation has been made, or it can be demonstrated that the Medical Assessor was unaware of significant factual matters, the assessment is very much a matter for him/her based upon clinical experience and the assessment of the material before him.
The respondent submits that assigning the appellant Class 1 for travel is not an improbable characterisation, nor the product of significant factual matters not being known to the Medical Assessor.
The respondent acknowledges that the reasoning of the Medical Assessor is brief, but it is not inadequate in circumstances where the Medical Assessor identified the source of the information underpinning his assessment.
The respondent submits that the appellant does not make the grounds of appeal under
s 327(3) of the 1998 Act, and that:(a) the appeal should be dismissed, and
(b) the MAC should be confirmed.
Appellant’s submissions in reply
The appellant submits that the respondent’s submissions are misconceived. The appellant’s case is not based on “mere disagreement” with the conclusion of the Medical Assessor in respect of the PIRS category assigned for travel. Rather, it is submitted that there is no evidence to support the conclusion that the appropriate category is Class 1. There is no evidence that the appellant is able to “travel to new environments without supervision”, which is the relevant criterion/requirement to place him in Class1.
The appellant relies on what the NSW Court of Appeal said in Vannini v Worldwide Demolitions Pty Ltd[1] in respect of a demonstrable error, that is, one that is apparent in findings of fact or reasoning contained in the MAC, although the error may be established in part by reference to materials that were before the Medical Assessor. On the other hand, an error is not demonstrable merely because the Panel disagrees with the opinion of the Medical Assessor.
[1] [2018] NSWCA 324 at [86]-[87].
The appellant submits that simply saying that he agrees with Dr Pothala does not adequately discharge the Medical Assessor’s obligation to explain the basis for his conclusion. There was also no evidence before Dr Pothala that the appellant was, and is, able to travel to new environments without supervision. If there was, it was not recorded by Dr Pothala or by the Medical Assessor.
The appellant submits that the Panel ought to find error in respect of travel, revoke the MAC, assign Class 2 for travel, and issue a new MAC.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[2] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[3]).
[2] [2008] NSWCA 116.
[3] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[4]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.
[4] [2006] NSWCA 284.
The error of the Medical Assessor in this case is his failure to provide adequate reasons for placing the appellant in Class 1 in the PIRS in respect of travel.
The descriptor in Table 11.3 of the Guidelines for Class 1 in respect of travel is:
“No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
The descriptor for Class 2 is:
“Mild impairment: Can travel without support person, but only in familiar area such as local shops, visiting a neighbour.”
In his report dated 15 February 2022[5] Dr Pothala records the following in respect of travel:
“Mr Buxton noted that he is able to drive on his own and is able to travel to new places on his own. He is isolative and avoidant of friends and doesn't meet them. He has one good friend who frequently talks to him and messages him. Another friend and some work mates check on him.
Mr Buxton said he enjoyed travel in the past and used to do overseas trips, also enjoyed driving to carols and Christmas lights until about two (2) years ago. This year he couldn’t do it”
[5] Appeal Papers (AP) p 251.
In his report dated 12 November 2021 addressing permanent impairment[6] Dr Hong records the following in respect of travel:
“Mr Buxton is anxious and avoids places where he thinks he would come across challenging children or children with behaviour problems.”
Dr Hong placed the appellant in Class 2 for travel.
[6] AP p 248.
In his statement dated 14 April 2022[7] Mr Buxton said at [118.c.] in respect of travel:
“Regarding my ability to travel, I prefer to stay at home and keep to myself. I
avoid places where there are kids or if I think that there could be children with
challenging conditions there because it reminds me of my employer Stewart
House. I can only drive short distances in the nearby area.”
[7] AP p 45.
The Medical Assessor said under “Social activities/ADL” at in [4] of the MAC[8] “He is able to care for the children and do the school and sport runs”.
[8] AP p 30.
The Medical Assessor gave his Reason for Decision in respect of travel in Table 11.8 of the MAC as:
“Is able to travel independently
Agree with Dr Pothala”
The Panel accepts that, apart from the comment of Dr Pothala noted in the first paragraph of the quote at [43] above, there is no other evidence to support the Medical Assessor’s conclusion that he is able to drive to new environments without supervision. The Panel accepts the appellant’s submission that the Medical Assessor has failed to provide adequate reasons explaining the reason for assigning Class 1 for travel.
The report of Professor Nicholas Glozier dated 1 May 2023 is as follows:
“1. The worker’s medical history, where it differs from previous records and additional history
Mr Buxton confirmed he continues to take Fluoxetine 40mg daily, Melatonin long-acting 4mg nocte and occasional complementary medicines. He had to have a recent physical health assessment at Parramatta but was unable to drive there on his own and had to rely on his wife. He continues to see his psychologist every fortnight where they discuss strategies about his avoidance of stressors, e.g. addressing his failure to go back to the gym because of the irritability and anxiety he gets there when triggered.
He reports some dysfunction in a range of areas. He goes to bed around 11pm or 11:30pm, struggling with onset insomnia several nights in the week (and naps during the day). He does tend to sleep through, apart from small arousals/going to the toilet, waking around 7:30am or 8am. He said he facilitates his children’s school preparation although they make their own lunches. He takes the younger one, Josh, to school locally and knows the ‘rat runs’ so he does not have to go on the main roads during rush hour. His other daughter gets herself to school. He then comes home, ‘hangs on the lounge,’ falls asleep easily but does few chores around the home. He says this is a source of contention and he tries to push himself but procrastinates. He feels that his wife enjoys the cooking, preparation and ownership of this. He will get Millie and Josh from school. He spends much of his day going down Tik Tok ‘rabbit holes’ and he can spend several hours doing this.
He may have to get some shopping but says he ‘avoids the mall.’ He generally ‘clicks and collects’ or will pick times if he has to go to smaller shops where he can avoid people.
He continues to be somewhat socially avoidant, e.g. when invited to a 50th a couple of weeks ago. He said he ended up ‘overthinking this’ and became so highly aroused/anxious beforehand he made excuses and didn’t go. He was also unable to handle the wake of a close family friend last year, left early and is quite ashamed about this. He has also found himself leaving such places as Manly during the public holiday where the sheer number of people led to high levels of arousal. The same avoidance also prevented him from going to a rugby game at Brookvale with friends as he could not tolerate being in such circumstances. He does not use public transport and has not flown for five years. In a range of social situations he finds young people and their unpredictability highly-provoking and so will try and avoid being around them, e.g. at playgrounds. He can take his children to sports but if Millie is at soccer, then he will sit on the sidelines away from others. He is generally avoidant of large crowds and people who may trigger him. He says he will only drive locally and even further to such places as Parramatta he requires his wife to go with him. He does not use Uber for the same reason.
He continues not to smoke, vape, drink alcohol or use any illicit drugs.
He has been trying to do some things to improve his wellbeing but says that he got triggered in the gym and now avoids that. His home gym is in a mess because there are too many things there. He is ‘in a bit of a rut’ and has now gained 10kg over his normal weight (whereas before he dropped down into the 70-kilo range when he was more unwell). He described his diet as ‘not as healthy as it used to be’ but not terribly unhealthy. They used to go to the beach but again he tries to avoid that and says that now his daughter has become a teenager and a bit body-conscious, this provides him with an excuse not to go there. Even when he goes there now, he doesn’t take his top off because he is ashamed of how he looks.
He was recently diagnosed with hypertension and has just started Telmisartan. He has had a recent cystoscopy for urinary blood but nothing was found.
2. Findings on clinical examination
Mr Buxton was casually-dressed, slightly unkempt and unshaven with stains on his top. He was pleasant, polite, reasonably engaged and seemed open about his condition, as well as being somewhat embarrassed about its impact. He was initially anxious but this settled down. He describes his moods as irritable and dysphoric, and spends much of his time ruminating. He said he is predominantly numb which he attributes to the medication whereas he has few emotions now. This stops him from becoming overwhelmed, oversensitive and also prevents panics which has not happened since being on the Fluoxetine. He has a number of negative cognitions about himself, his function and his role, described reasonable sleep duration but onset insomnia, significant daytime anergia, procrastination, lack of motivation. He has a range of entrenched avoidant behaviours associated with heightened levels of anxiety but no recent panics. With this avoidant behaviour these are reduced. There are no psychotic phenomena. He showed reasonable focus and concentration throughout the assessment with no objective difficulties.
3. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Mr Buxton has both cardinal features of depression although not at an extremely severe level, with significant other features, both cognitive and biological and would meet the criteria for a Major Depressive Disorder which is not as severe when at its worst. There remains considerable anxious distress associated with this but no panic since the fluoxetine use. I would note that the symptoms described by the MA are very similar and would meet the criteria for a Major Depressive Disorder.
The appeal focused on the one category in the PIRS of Travel. From the history above, one cannot say that Mr Buxton is unimpaired. He described a range of situations where he not only experiences symptoms but actively avoids, particularly with young children around. He only drives locally, needs to be taken by his wife to go any further and as such even avoids using Uber. He has avoided or had to escape situations outside where there are large crowds, particularly of young people, again preventing him from travelling to such places. As such, this is a mild impairment.
This changes the class of Travel to 2 which gives him a PIRS rating of 2,2,2,3,3,3 which is a total of 15, median class 3, which is 15%.
Signed: Professor Nicholas Glozier
Date: 1 May 2023”
The Panel accepts the report of Professor Nicholas Glozier.
Using the Conversion Table 11.7 in the Guidelines, the appellant’s WPI is calculated as follows:
Score
Median Class
2
2
2
3
3
3
=3
Aggregate Score Impairment
Total
%
+2
+2
+2
+3
+3
+3
15
15
For these reasons, the Appeal Panel has determined that the MAC issued on
8 November 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2392/22 |
Applicant: | Nick Buxton |
Respondent: | Stewart House |
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 Gerald Chew 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) |
| Psychological | 27 March 2021 | 11, pp 54-60 | 15% | 0 | 15% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
3
0