Campbell-Ellis v Interrelate Limited
[2024] NSWPICMP 97
•22 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Campbell-Ellis v Interrelate Limited [2024] NSWPICMP 97 |
| APPELLANT: | Matthew Campbell-Ellis |
| RESPONDENT: | Interrelate Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of the degree of permanent impairment from psychological injury; whether Medical Assessor (MA) erred in finding appellant had not achieved maximum medical improvement; whether MA erred by having regard to likely change in appellant’s social circumstances as well as likely change in treatment when considering whether appellant had achieved maximum medical improvement; Appeal Panel found MA did not make any error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 September 2023 Matthew Campbell-Ellis, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 August 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
RELEVANT FACTUAL BACKGROUND
On or around 5 September 2022 the appellant registered with the Personal Injury Commission (Commission) an Application to Resolve a Dispute seeking determination of claims he had made against his employer, Interrelate Limited, the respondent, for:
(a) weekly payments of compensation for an incapacity;
(b) compensation for medical expenses he incurred for treatment, and
(c) compensation for permanent impairment, the degree of which he particularised as 15% whole person impairment (WPI).
He particularised the injury, to which he claimed these entitlements related, in these terms: “the worker was diagnosed with PTSD and depression as a result of the nature and conditions of his employment”. The date of injury was particularised as 17 June 2020.
The claim relating to the appellant’s compensation for permanent impairment was referred to the Medical Assessor to assess several medical disputes relating to his injury, including whether the degree of permanent impairment the appellant has from his injury is fully ascertainable.
The Medical Assessor examined the appellant on 11 November 2022, and on that occasion took a history that the appellant had consulted his general practitioner around July 2020, who referred him to a psychologist for six to eight sessions and who suggested the appellant take an antidepressant, which the appellant did. The appellant’s general practitioner subsequently increased the dosage which had adverse effects for the appellant. The appellant then ceased taking the antidepressant. The Medical Assessor also noted that the appellant had seen a psychologist both by telehealth and in face-to-face sessions. The Medical Assessor noted that the appellant had also eight sessions with a somatic therapist. The Medical Assessor noted that that appellant had been referred to a psychiatrist but had not yet had an appointment with the psychiatrist. The Medical Assessor noted that the appellant had difficulty accessing treatment for his psychiatric injury due to his peripatetic lifestyle.
Section 322(4) of the 1998 Act reads as follows:
“A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
Section 322(1) of the 1998 Act provides that:
“…the assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Act it to be made in accordance with Workers Compensation Guidelines (as enforced at the time the assessment is made) issued for that purpose”.
The guidelines that have been issued for that purpose are the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines). Clauses 1.15, 1.16 and 1.34 of the Guidelines read as follows:“1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.
1.34 If the claimant has been offered, but has refused, additional or alternative medical treatment that the assessor considers likely to improve the claimant’s condition, the medical assessor should evaluate the current condition without consideration of potential changes associated with the proposed treatment. The assessor may note the potential for improvement in the claimant’s condition in the evaluation report, and the reasons for refusal by the claimant, but should not adjust the level of impairment on the basis of the claimant’s decision.”
On 22 November 2022 the Medical Assessor issued a Medical Assessment Certificate, in which the Medical Assessor answered “no” to a standard question in the form the President of the Commission has approved for a Medical Assessment Certificate, to wit “had all body parts/systems stabilised/reached maximum medical improvement?”. The Medical Assessor explained that the appellant was about to see a psychiatrist for specialist management of his injury. The Medical Assessor considered that there was likely to be “a substantial change in whole person impairment over the next twelve months with adequate treatment”.
In answer another standard question, “if stabilisation/maximum medical improvement, of any or all injuries has not been reached, when in your opinion will this occur?”, the Medical Assessor said “maximum medical improvement will likely occur from six to twelve months after he begins treatment under specialist supervision”.
Subsequently in this Medical Assessment Certificate, at Part 10a, the Medical Assessor said as follows:
“The applicant’s condition has not stabilised or reached Maximum Medical Improvement. He has yet to have consistent, evidence-based treatment or specialist advice. He has secured an appointment with a psychiatrist for November 2022. His Whole Person Impairment on the balance of probabilities will likely change substantially with appropriate treatment over the next 6 to 12 months. Six to 12 months is an adequate period to progress through accepted treatment algorithms for managing PTSD and mood disorders. The applicant should be referred back for reassessment 6 to 12 months after adequate treatment.
In making that assessment I have taken account of the following matters:-
The history provided by Mr Campbell-Ellis to me and other assessors, his mental state examination, the documentation provided, the treatment rendered and Mr Campbell-Ellis’ response to treatment.”
It is apparent from these passages in the Medical Assessment Certificate the Medical Assessor issued on 22 November 2022 that the Medical Assessor was aware that the only treatment the appellant had by then had or been offered for treatment of his injury was consulting his general practitioner, taking antidepressants, therapy with a psychologist, therapy with a somatic therapist and a consult with a psychiatrist. The Medical Assessor was aware that the appellant had ceased taking his antidepressant due to adverse side effects and had not had the consult with a psychiatrist.
It is also apparent from this Medical Assessment Certificate, that the Medical Assessor concluded that, after sufficient time, the treatment of consulting a psychiatrist that the appellant was about to start would likely stabilise his condition and that, at that point, the appellant would attain maximum medical improvement. It is also clear that the Medical Assessor came to the view, having applied clauses 1.5, 1.6 and 1.34 of the Guidelines, that the appellant’s impairment was not then fully ascertainable. It is apparent too that the Medical Assessor declined to assess the degree of the appellant’s permanent impairment because the appellant’s permanent impairment was not full ascertainable.
Following the Medical Assessor issuing that Medical Assessment Certificate the Commission issued a Certificate of Determination on 17 January 2023, the relevant terms of which were these:
“1. The degree of permanent impairment resulting from injury to the applicant on 17 June 2020 (deemed) is not fully ascertainable.
2. The proceedings may be restored when the applicant has attained maximum medical improvement.”
On 23 June 2023 the appellant was examined by psychiatrist Dr Joanne Holdaway, at the request of his solicitors, who issued a report to those solicitors on 29 June 2023. The appellant’s solicitors’ letter of instruction to Dr Holdaway is not before the Appeal Panel and, hence, the Appeal Panel does not know what facts Dr Holdaway was asked to assume to provide her opinion contained within her report. Dr Holdaway did set out within her report the specific questions that the appellant’s solicitors had asked her to address. One of those included “your prognosis”. Dr Holdaway in answer to that question advised that the appellant’s prognosis is guarded. She noted that the appellant had previously had a negative experience with psychiatric medication and was extremely reluctant to try more, but she also noted that the appellant had only tried one type of medicine. Dr Holdaway further noted that the appellant was currently talking to a psychologist in Victoria approximately on a monthly basis and that he was looking for a psychiatrist to do “talk based therapy”. Dr Holdaway did not otherwise indicate what other treatment options were available to the appellant, nor did she indicate what effect the appellant’s current treatment of consulting a psychologist and potential treatment of talking to a psychiatrist may have on his condition.
Dr Holdaway advised that she assessed the appellant had 19% WPI.
On 3 July 2023 the appellant’s solicitors wrote to the Commission enclosing with its correspondence the report of Dr Holdaway dated 29 June 2023. The appellant’s solicitors said that “Dr Holdaway has opined that the applicant has now reached maximum medical improvement”. The Appeal Panel observes that nowhere in her report did Dr Holdaway explicitly state that. The appellant’s solicitors requested that the proceedings be restored and that the appellant again be referred to a Medical Assessor. That occurred on 19 July 2023 when a delegate of the President provided a further referral to the Medical Assessor.
The Medical Assessor again examined the appellant on 15 August 2023. As noted earlier, he issued the MAC in response to that referral on 31 August 2023.
The Medical Assessor noted in the MAC that the appellant was relocating to Queensland in the following week to be closer to his sister. The Medical Assessor noted that the appellant had purchased a block of land near his sister’s residence and that he would live on that block in a caravan until he built a house. The Medical Assessor also noted that the appellant intended to see a general practitioner in Bundaberg whom he had previously consulted, and intended also to see a psychiatrist in Harvey Bay, namely Dr VIchal Woochit, with whom he had “an existing relationship”. The Medical Assessor noted that the appellant said that “he intends to become stable and put down roots”.
The Medical Assessor noted in the MAC that the appellant was still not taking antidepressants but that “he is now open” to doing so. The Medical Assessor noted that the appellant had been seeing a psychologist initially on a fortnightly basis but then extended that to monthly consultations as he had moved to a place that was a 30 minute drive away from the psychologist. The Medical Assessor noted that the appellant had 10 sessions in all with the psychologist and that he had been treated with “trauma-informed cognitive behaviour therapy”.
In the MAC the Medical Assessor again answered no to the question “have all body parts/systems stabilised/reached maximum medical improvement?”. The Medical Assessor also said the following in response to that question:
“Mr Campbell-Ellis’ condition has not stabilised. His symptoms are improving and he is about to address the instability in his social circumstances by permanently relocating to Queensland, seeing his GP regularly, and seeing a psychiatrist with whom he has already established a therapeutic relationship. He is open to considering antidepressant medication. Since our last examination he has not seen a psychiatrist for specialist management. He has improved with psychological treatment. There will likely be a substantial change in whole person impairment over the next 12 months with specialist treatment and improved stability in his social circumstances.”
The Medical Assessor at Part 8d of the MAC said that the appellant would likely attain maximum medical improvement in 6 to 12 months after he begins treatment under specialist supervision.
The Medical Assessor referred to Dr Holdaway’s report of 29 June 2023 and noted that Dr Holdaway had assessed the appellant’s WPI but did not comment upon whether the appellant had attained maximum medical improvement.
It is again apparent from these passages in the MAC the Medical Assessor had regard to the instructions contained with clauses 1.15, 1.16 and 1.34 of the Guidelines and concluded that due to both a combination of the appellant shortly moving to Queensland, where he would be close to his sister, and the likelihood that the appellant was to commence consultations with a psychiatrist and was open to taking antidepressants, that there would likely be a change in the appellant’s condition over the next year. In other words, at the time the appellant presented to the Medical Assessor on 15 August 2023, the Medical Assessor was of the view that the appellant’s condition was not well stabilised but was likely to become stabilised upon his move the Queensland and his commencing treatment that he had been offered and which he had not refused. It is apparent from the MAC that the Medical Assessor formed the view that the degree of the appellant’s permanent impairment from his injury was not then fully ascertainable, and as consequence, the Medical Assessor declined to assess the appellant’s degree of permanent impairment.
The appellant has challenged the Medical Assessor’s certification that the degree of his permanent impairment is not fully ascertainable.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that Dr Holdaway had determined that he had achieved maximum medical improvement by virtue of the fact that she assessed the degree of his permanent impairment.
The appellant submitted that in 12 months his living situation will be identical to what it is presently other than the fact that he will be closer to his family. The appellant submitted that it made no sense to wait 12 months to assess the degree of his permanent impairment.
The appellant submitted that with respect to the issue of attaining maximum medical improvement, the Guidelines are directed to medical treatment or its absence, and not social circumstances. The appellant submitted that the Medical Assessor relied upon his social circumstances to form the conclusion that he had not reached maximum medical improvement, which contravenes the Guidelines.
The appellant submitted that the Medical Assessor contrary to clause 1.16 of the Guidelines, failed to comment on the value of additional or different treatment in that he did not explain what benefit a psychiatrist, as opposed to a psychologist, would provide him. The appellant submitted that the Medical Assessor did not sufficiently expose his reasons for concluding that he had not reached maximum medical improvement in not elaborating on the value of treatment from a psychiatrist.
The appellant submitted that the Medical Assessor did not explain why he had rejected the evidence of Dr Holdaway.
In reply, the respondent submitted that the Medical Assessor provided clear reasoning for finding that the appellant had not reached maximum medical improvement and that his assessment was in accordance with the Guidelines.
The respondent submitted that in a circumstance where Dr Holdaway did not address the issue of maximum medical improvement it was not possible for the Medical Assessor to explain why he rejected an opinion that Dr Holdaway did not articulate or for which she did not explain her reasoning.
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.
Dr Holdaway did not explicitly in her report address whether the appellant’s permanent impairment was fully ascertainable. It would seem from the questions that the appellant’s solicitors had asked her to address, and which she listed in her report, that was not one of the issues she was asked to address. The Appeal Panel does not consider it can be inferred from Dr Holdaway assessing the appellant’s permanent impairment that she had formed the view that at the time she examined the appellant he had attained maximum medical improvement and there was unlikely to be significant improvement in his condition in the coming 12 months. As much as can be said, in the Appeal Panel’s view, is that Dr Holdaway considered for the reasons she provided that at the time she examined the appellant the degree of his permanent impairment was 19% WPI.
On the Appeal Panel’s reading of her report, it would seem that Dr Holdaway did not in any event give consideration to the medical treatment the appellant potentially might have subsequent to her examination of him or given consideration to the forthcoming change in his living circumstances. Consequently, she did not in her report address whether those factors may have a bearing on the appellant’s condition and, if they might, whether the appellant’s permanent impairment could be considered to be fully ascertainable.
With respect to the appellant’s submission that the Medical Assessor did not explain why he “rejected” Dr Holdaway’s opinion that he had achieved maximum medical improvement, the Appeal Panel observes that the obligation of a Medical Assessor to explain his or her assessment requires a Medical Assessor to reveal the actual path of reasoning by which the Medical Assessor arrived at his or her opinion in sufficient detail such that an Appeal Panel can ascertain whether there is any error in the Medical Assessor’s reasoning.[2] That obligation does not however require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other examiners.[3] Nor does it require the Medical Assessor to sit as a decision maker choosing between competing medical opinions put forward by the parties.[4]
[2] Wingfoot Aust Partners Pty Ltd v Cocak [2013] HCA 43 (Wingfoot) at [55], applied by Campbell JN in the State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison SJ in Broad Spectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[3] Wingfoot at [56].
[4] Kaur at [26].
In short, even if it is to be assumed that it is implicit in Dr Holdaway’s report that she was satisfied that the appellant had achieved maximum medical improvement and that the degree of his permanent impairment was fully ascertainable, which assumption the Appeal Panel does not consider can be made, the Medical Assessor did not err by not explaining if he had rejected that opinion. Further, the Medical Assessor made clear in the MAC why he formed the opinion he did. The Appeal Panel will expand on that issue shortly, but for present purposes the Appeal Panel concludes that it is clear from the MAC, when it is read as a whole, why the Medical Assessor formed an opinion that was different from the opinion that Dr Holdaway formed.
There is no criteria specified within the 1998 Act that a Medical Assessor must consider to be satisfied whether the impairment of a worker is permanent and whether the degree of permanent impairment is fully ascertainable. The instructions contained within clauses 1.15, 1.16 and 1.34 of the Guidelines, which a Medical Assessor must abide in accordance with s 322(1) of the 1998 Act, are designed to assist with that task. But those instructions within those clauses of the Guidelines do not represent an exhaustive list of the matters a Medical Assessor can consider when assessing whether the impairment of a worker is permanent and whether the degree of permanent impairment of the worker is fully ascertainable and, if not, whether they are able to make an assessment of the degree of impairment of the worker. In the Appeal Panel’s view, relevant to consideration of this matter is any circumstance that creates a likelihood that there will be any change occurring in a worker’s circumstance within a reasonable time that it is likely to impact either beneficially or adversely a worker’s condition such that there may be either improvement or deterioration in the worker’s condition. If there is that likelihood then a Medical Assessor could not be satisfied that the impairment of a worker is permanent or that the degree of permanent impairment is fully ascertainable. There is nothing within the legislation that prohibits a consideration of matters outside of the factors articulated in clauses 1.16, 1.16 and 1.34 of the Guidelines. In the Appeal Panel’s view, if matters outside of those factors are likely to impact, then they are matters that a Medical Assessor should consider.
In this case, the Medical Assessor considered there is likely to be a substantial change in the appellant’s impairment in the coming 12 months both because there will likely be stability in his social circumstances and because it is likely that he will come under the specialist care of a psychiatrist and is open to consideration of taking antidepressants. The Appeal Panel observes that a psychiatrist has more specialised expertise than a general practitioner regarding psychiatric illness and is far better positioned than a general practitioner to consider the medication and therapies that are best suited for a worker with psychiatric illness. Further, a psychologist is unable to prescribe medication.
The Appeal Panel considers these matters are likely to have a positive effect on the appellant’s mental health, and consequently the Appeal Panel considers the Medical Assessor was correct to conclude that there was a likelihood of improvement in the appellant’s condition in the coming 12 months.
The Appeal Panel does not consider the MAC contains a demonstrable error. Further, the Appeal Panel considers that the Medical Assessor made his assessment that the appellant’s impairment is not fully ascertainable in accordance with correct criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 August 2023 should be confirmed.
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