Cobcroft v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 464
•17 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cobcroft v State of New South Wales (NSW Police Force) [2024] NSWPICMP 464 |
| APPELLANT: | Daniel Cobcroft |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 17 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor’s ratings of appellant’s impairment in self-care and personal hygiene and concentration, persistence and pace involved error; Held – rating of appellant’s impairment in self-care and personal hygiene did not involve error, but rating in concentration, persistence and pace did involve error; appellant re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 April 2024 Daniel Cobcroft, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Timothy Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 March 2024.
The appellant relies on the following grounds for 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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant worked as a police officer from 2012 for the state of New South Wales, the respondent. Due to numerous traumatic events to which he was exposed in his employment with the respondent until 16 November 2021 he suffered a psychological injury.
At the request of his solicitors, the appellant was examined on 25 January 2023 by psychiatrist Dr Frank Chow. Dr Chow reported to the appellant’s solicitors on
10 February 2023 advising them that he diagnosed the appellant’s injury consisted of post-traumatic stress disorder, major depressive disorder and alcohol use disorder. He advised he assessed the appellant’s permanent impairment from his injury is 23% whole person impairment (WPI). His assessment was based on the Psychiatric Impairment Rating Scale (PIRS), by reference to which he rated the appellant’s impairment in self-care and personal hygiene as Class 3, in social and recreational activities as Class 3, in travel as Class 2, in social functioning as Class 2, in concentration, persistence and pace (CPP) as Class 3, and in employability as Class 5. Dr Chow noted that the median of those class scores is 3 and that the aggregate is 18, which converted to 22% WPI. Dr Chow also added 1% WPI for “treatment effect”.Relying on that report of Dr Chow, the appellant’s solicitors wrote to the respondent insurer on 21 February 2023 advising it that the appellant’s claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 23% WPI and also compensation under s 67 of that Act, as saved, for pain and suffering.
To respond to the claim, the respondent’s solicitors arranged the appellant to be examined by psychiatrist Dr Clayton Smith on 27 July 2023. In a report dated 8 August 2023 Dr Smith advised the respondent’s solicitors he assessed the appellant met the criteria of DSM-V for a diagnosis of post-traumatic stress disorder, and major depressive disorder with persistent depressed mood. Dr Smith also advised that the appellant had an alcohol use disorder of moderate severity in substantial remission. Dr Smith advised that the appellant was “yet to progress through accepted treatment algorithms for managing treatment-resistant depression and post-traumatic stress disorder”. Dr Smith considered that the appellant’s illness would likely substantially improve over the next 12 months and because of that Dr Smith considered that the appellant’s condition was not stabilised. Dr Smith declined to assess the appellant’s degree of permanent impairment because he considered that the appellant had not achieved maximum medical improvement.
On 21 September 2023 the respondent’s insurer wrote to the appellant advising him that he was unable to assess his claim for compensation for permanent impairment “at this stage” because it said he had not reached maximum medical improvement.
On 7 February 2024, the appellant lodged with the Personal Injury Commission (Commission) an application to resolve a dispute, thereby initiating proceedings with the Commission seeking determination of his claim for compensation under ss 66 and 67 of the 1987 Act. A delegate of the President of the Commission then issued a referral to the Medical Assessor on 26 February 2024 requiring the Medical Assessor to assess various medical disputes that were described in the referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 16 November 2021
Body part/s referred: Psychiatric / psychological disorder
Method of assessment: Whole person impairment”
As said the Medical Assessor issued the MAC on 19 March 2024. In that he certified that the appellant’s impairment is permanent and the degree of his permanent impairment is fully ascertainable. He also said that the appellant had “no pre-existing condition” and that “there is no deductible proportion”. No issue has been raised in the appeal against the medical assessment regarding those matters.
The Medical Assessor certified that he assessed the degree of the appellant’s permanent impairment from his injury is 10% WPI. That assessment was based on PIRS, by which he rated the Medical Assessor rated the appellant’s impairment in self-care and personal hygiene as Class 2, social and recreational activities as Class 3, travel as Class 2, social functioning as Class 2, CPP as Class 2, and employability as Class 5. The Medical Assessor noted that the median of those class scores is 2 and the aggregate is 16, which converted to 9% WPI. The Medical Assessor also added 1% WPI as an “increase for treatment”. The Medical Assessor provided no reasons in the MAC for adding this 1% WPI.
In his appeal against the medical assessment the appellant has raised issues with respect to the Medical Assessor’s rating of his impairment in self-care and personal hygiene and in CPP.
In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment in self-care and personal hygiene as Class 2:
“Impairment is mild. Self-care is reduced and he cares less about his appearance. However, he can attend to tasks such as haircuts and dental appointments when
required. He can attend to some household chores such as mowing the lawn and grocery shopping. I am of the view that Mr Cobcroft could live independently.”
Within the body of the MAC the Medical Assessor also recorded that the appellant had reported to him that he will shower if he has to, such as when he is going to the shops. The Medical Assessor recorded that the appellant reported that he can forget to brush his teeth, particularly in the morning when he is rushing to get his children ready for school. The Medical Assessor recorded that the appellant reported getting his hair cut out of necessity. The Medical Assessor noted that the appellant and his wife order their groceries online and that the appellant has put off visits to his general practitioner (GP) and dentist.
The Medical Assessor also noted that Dr Chow had rated the appellant’s impairment as Class 3 in self-care and personal hygiene, in regards to which the Medical Assessor remarked that it was his view that the appellant’s impairment is mild because the appellant could live independently if needed. The Medical Assessor said he considered “a Class 2 is more appropriate”.
The Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 2 in CPP:
“Impairment is mild. He reports reduced concentration. His concentration throughout the assessment which lasted over 60 minutes was normal.”
In the body of the MAC the Medical Assessor also noted that the appellant reported that his concentration is poor and that he felt he cannot retain written information and often forgot basic things. The Medical Assessor also recorded that he found during his examination of the appellant that the appellant easily engaged and that his speech was fluent and spontaneous and that his focus and pace throughout the examination was normal.
The Medical Assessor observed that Dr Chow had rated the appellant’s impairment in CPP as Class 3 but remarked that the appellant focused normally for the duration of his examination of the appellant which lasted one hour. The Medical Assessor said he considered a Class 2 rating was appropriate.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel found that the MAC contained a demonstrable error. The Appeal Panel’s reasons for finding error are explained below. The Appeal Panel consequently needed to correct that error. The Appeal Panel considered it would need to re-examine the appellant to obtain the necessary clinical data to be able to correct that error.
The Appeal Panel appointed Medical Assessor Michael Hong, one of its members, to conduct that examination. He did so on 25 June 2024 and provided his report to the Appeal Panel on his examination on that date, which is set out below.
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. The appellant’s are dated 14 April 2024 and the respondent’s are dated 29 April 2024. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not provide “a viable and sufficient path of reasoning to substantiate assessment of a mild impairment, rather than a moderate impairment” in self-care and personal hygiene and CPP.
The appellant referred to Dr Chow obtaining a history that his wife prompts him to shower, change clothes and eat. The appellant highlighted that Dr Smith obtained a history that he might go days without showering and that he does not brush his teeth daily. The appellant also noted that the history Dr Smith obtained included that he used to have a dental checkup yearly, but has not had one for 18 months, that he skips breakfast, and eat left overs or organises Uber Eats, and that he never cooks and does not do laundry.
The appellant also referred to his statement he signed on 9 January 2024 in which he said that his partner prompts him regarding his self-care and personal hygiene activities and that he no longer eats regular meals or cooks for himself.
The appellant submitted that because he does not prepare his own meals, does not shower daily, does not brush his teeth daily, requires the assistance of his partner to ensure hygiene and nutrition. his impairment in self-care and personal hygiene is moderate.
With respect to CPP the appellant again referred to the history that Dr Chow obtained which was that he has poor concentration and focus, is distracted and easily forgets, struggles to complete tasks and cannot read more than a few pages. The appellant again referred to the history Dr Smith obtained which included that he has problems with his concentration and cannot read anymore whereas he used to read often and that now he might read an article occasionally but cannot retain information and has an awful short-term memory.
The appellant again referred to his statement in which he said that he has difficulties concentrating and feels that he is in a constant dazed state, has a foggy mind and has difficulty focusing on one thing for a period of time.
The appellant submitted that the Medical Assessor was required to provide adequate reasons why he preferred the lower Class 2 rating where the circumstances were such that a Class 3 rating was available. The appellant submitted that the evidence in his statement together with the medical material was evidence of a moderate impairment.
In reply, the respondent submitted that the Medical Assessor obtained a history that the appellant had poor motivation to eat, would shower if he had to and would cut his hair out of necessity. The respondent noted that the Medical Assessor did not record the appellant’s partner had to prompt him to undertake activities. The respondent noted that the Medical Assessor, from his examination of the appellant, concluded that the appellant could live independently if needed, that is without the assistance of his partner. The respondent submitted that a Class 2 rating was appropriate.
With respect to CPP, the respondent noted that the Medical Assessor accepted the appellant’s report of reduced concentration, which is also what Dr Chow and Dr Smith recorded, but the Medical Assessor noted on his examination of the appellant that the appellant was able to engage easily in the assessment and remained calm and appropriate throughout and that his focus and pace throughout the view were normal. The respondent submitted that a Class 2 rating was appropriate.
The respondent submitted that a mere difference of opinion on a subject matter about which reasonable minds might differ is not sufficient to establish error in the circumstance where an assessment is made on the behavioural consequences of a psychiatric condition or disorder.
Following Medical Assessor Hong’s re-examination of the appellant, the Appeal Panel directed the parties to provide written submissions on the following further issue, which the Appeal Panel considered arose as a consequence of Medical Assessor Hong’s findings from his examination and the history he obtained:
“If the Appeal Panel finds the MAC contains a demonstrable error and if the Appeal Panel in correcting that error assesses the degree of permanent impairment of the appellant (by reference to the psychiatric impairment rating scale) higher than the Medical Assessor did, is the Appeal Panel able to make a fresh assessment of whether any WPI should or should not be added pursuant to paragraph 1.32 of the Guidelines or, noting that neither party addressed paragraph 1.32 in their submissions lodged with the application for appeal and notice of opposition, must the Appeal Panel add the 1% WPI that the Medical Assessor added.”
In response to that direction, the appellant submitted that he did not address the matter of paragraph 1.32 of the Guidelines in his initial submissions dated 14 April 2024 because the Medical Assessor did not err in his findings by adding 1% WPI under paragraph 1.32. The appellant submitted that, because of that, if the Appeal Panel were to assess the degree of his permanent impairment higher than the Medical Assessor it must still add 1% WPI
pursuant to paragraph 1.32.The respondent made the same submission, in substance.
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.
Self-care and personal hygiene
The examples provided in Table 11.1 of the Guidelines for a Class 2 and Class 3 impairment in self-care and personal hygiene are:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: 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 stated in the MAC that he based his assessment on the history he obtained, the appellant’s presentation and his perusal of the documentation that had been provided to him. That documentation included the reports of Dr Chow and Dr Smith. It included the appellant’s statement he signed on 9 January 2024. The Medical Assessor was consequently aware of the evidence within those documents.
It is apparent to the Appeal Panel that the Medical Assessor when composing the clinical history that he has detailed in the MAC has had regard to the documentation, including the reports of Dr Chow and Dr Smith and the appellant’s statement, and also to what the appellant reported to him at the time he examined the appellant. It seems to the Appeal Panel that the Medical Assessor in composing the history has exercised his clinical judgement to determine what matters are relevant in a clinical sense for him to assess the appellant’s impairment in the several PIRS.
The relevant clinical history the Medical Assessor detailed in the MAC included that the appellant’s functioning with respect to his self-care and personal hygiene was reduced, that the appellant cared less about his appearance, that he will shower if he must, such as when he goes to the shops, that he forgets to brush his teeth particularly in the morning, and that he cuts his hair only out of necessity.
In this case the Medical Assessor did not obtain a history at the time he examined the appellant on 15 March 2024, that his wife prompted him to shower or to brush his teeth. The history the Medical Assessor obtained does not indicate that the appellant requires his partner to ensure hygiene or nutrition. The Medical Assessor did not obtain a history that the appellant was frequently missing meals.
The descriptors provided in Tables 11.1 – 11.6 of the Guidelines are to assist the Medical Assessor “to explore the ways in which a psychiatric condition impacts upon the activities of daily living on an individual, and their capacity to function in the areas described”.[1] A Medical Assessor will bring his or her own special expertise to bear in assessing a workers’ impairment with respect to each PIRS.[2]
[1] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [60]
[2] Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 at [20]; Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [64]
The Appeal Panel considers that there is no error in the exercise of the Medical Assessor’s clinical judgement to rate the appellant’s impairment in self-care and personal hygiene as a mild impairment based on the history of the Medical Assessor detailed in the MAC and for the reasons that the Medical Assessor explained within the PIRS table.
CPP
The descriptors provided in Table 11.5 for a Class 2 impairment for CPP are:
“Mild impairment: 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, then feels fatigued or develops headache.”
The descriptors provided for a Class 3 impairment are:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans) make significant repairs to motor vehicles, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor obtained a history that the appellant had reduced concentration and could not retain written information and forgot basic things. The Medical Assessor rated the appellant’s impairment in CPP as Class 2 because the appellant exhibited normal concentration throughout the 60 minutes of his examination of the appellant.
The Appeal Panel accepts the appellant’s submission to the effect that when rating his impairment in CPP the Medical Assessor did not have proper regard to the history he obtained that the appellant could not retain written information and forgot the basic things. In the Appeal Panel’s view the Medical Assessor ought to have explained why, in his judgement, those matters did not have a bearing on the degree of seriousness of the appellant’s impairment in CPP. It seems that the Medical Assessor based his assessment of the seriousness of the appellant’s impairment in CPP solely on how the appellant presented during examination and placed no weight on the history that he obtained relating to the appellant’s function in CPP. In the Appeal Panel’s view, without explaining why that history had no relevance the Medical Assessor made an error, such that the MAC contains a demonstrable error.
As indicated above, the Appeal Panel considered that to correct this error it needed to re-examine the appellant to obtain further clinical data relating to his function in CPP. As said, the Appeal Panel appointed Medical Assessor Hong to conduct that examination. He provided a report to the Appeal Panel on his examination:
“1. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Cobcroft is 42 and living with his partner, who is a full-time school teacher, and two sons, aged 9 and 6.
He understands why he's being reassessed today and said that this is the fourth time he's having an assessment. He said two categories from the MAC are being appealed.
Mr Cobcroft recounted his work history, that due to cumulative stress and exposure at work, he developed PTSD, depression, and alcohol problems. He was a senior constable and stopped working in November 2021 and has not worked in other capacities since.
He started treatment not long after he stopped working in late 2021, initially saw a psychologist briefly and then started treatment with his current psychologist.
He used to drink half a bottle of spirits every day and now, he is only drinking three times a week and a couple of drinks each time.
Psychologically, Mr Cobcroft doesn't feel like anything's changed over time. He feels depressed and anxious. He has not had an anxiety attack for a while, but this morning he had one after he watched the news about a Queensland police officer in an arrest incident. Aside from watching the news, being out can trigger his anxiety, so he said he avoids going out.
· Present treatment:
Mr Cobcroft takes Mirtazapine 30 mg. He was on Naltrexone and ceased it a couple of months ago. He has been consulting Viviana Lee, psychologist for a couple of years now, recently every 2 weeks. He had Eye movement desensitization and reprocessing therapy. His last consultation with his psychiatrist, Dr Luke Johnson, was in late 2023. He has not had group-based treatment or a psychiatric admission.
· Present symptoms:
Mr Cobcroft's weight has been stable in 2024. He has freefloating anxiety and occasionally, panic attacks. He has chronic sleep problems and reported nightmares occur almost daily. He reported feeling flat, depressed and lacking energy. He has intrusive memories and flashbacks related to work. He described chronic concentration and memory problems. He does not have suicidal ideation and cited his children as his safety net. He does not have psychotic symptoms.
· Lifestyle:
He finds it hard to focus, and this has been a long-standing problem. He had planned to do things such as clean up the shed but he doesn't proceed with it. He used to like reading books. He liked non-fiction, biographies about sports people and musicians, but he stopped reading and said it's frustrating to read as he cannot focus or retain information.
Mr Cobcroft does different things around the house, such as putting out the rubbish and doing the lawn. He said his partner would ask him to do the dishwasher, and he would forget to switch it on. He said that she does most of the shopping.
He leaves the TV on but often falls asleep and does not watch a specific show or follow anything on TV. In the past, he liked sports and going to the gym and playing golf, but he does not do these anymore.
2. FINDINGS ON MENTAL STATEEXAMINATION
Mr Cobcroft was assessed by video. He was at home on his own during the assessment. He had short hair and a full beard. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and smiled and laughed appropriately. He spoke spontaneously. He was not thought disordered but was disorganized in giving his history. I asked him for additional information that he wanted to add and he discussed issues with the previous MA’s certificate. He said that he told the MA about his dental problem, that he wasn't brushing his teeth properly and he had a wisdom tooth infection. The dentist told him he needs more treatment due to bad dental decay, but he didn't go back for it. He's not been looking after his dental care. His partner tells him to get a haircut when he starts to look "shaggy". He said he relies on his partner for everything, and therefore he doesn't believe he's independent in self-care, as the MA said.
3.SUMMARY
· summary of injuries and diagnoses:
Mr Cobcroft presented for an assessment for the appeal. He described chronic psychopathology, and his symptoms and functioning have not significantly changed since the previous MA's assessment. He endorsed symptoms consistent with Post-traumatic stress disorder and Major depressive disorder and his alcohol use has reduced, and he no longer has Alcohol use disorder.
I have found no inconsistency in Mr Cobcroft's presentation.”
The Appeal Panel adopts the report of Medical Assessor Hong. Based on his report, the Appeal Panel rates the appellant’s impairment in CPP as Class 3.
This is because the appellant described chronic concentration and memory problems and struggles with any intellectually demanding task. Further, the appellant previously enjoyed reading books but now cannot focus on reading due to poor concentration. Those symptoms are consistent with the psychiatric diagnosis Medical Assessor Hong made. The appellant’s function in CPP best correlates, in the Appeal Panel’s view, with a series of impairment indicated by descriptors for a Class 3 impairment.
Thus, the Appeal Panel corrects the error in the MAC by rating the appellant’s impairment in CPP as Class 3. The median of the appellant’s class scores in the several PIRS categories is therefore 3 and the aggregate is 17 which converts in accordance with Table 11.7 of the Guidelines to 19% WPI.
Paragraph 1.32 of the Guidelines
The Appeal Panel’s assessment of the degree of the appellant’s permanent impairment is substantially greater than the degree of permanent impairment the Medical Assessor assessed the appellant had from his injury. As mentioned, the Medical Assessor added, pursuant to paragraph 1.32 of the Guidelines, 1% WPI to the permanent impairment he assessed the appellant had by reference to the PIRS tables.
Paragraph 1.32 of the Guidelines reads as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
The Medical Assessor did not explain why he added 1% WPI pursuant to paragraph 1.32 of the Guidelines, but it is implicit that he considered that the appellant had effective long term treatment of his injury and that that had resulted in substantial elimination of the appellant’s permanent impairment and that the appellant would likely revert to the original degree of impairment if his treatment was withdrawn.
Given that the Appeal Panel’s assessment is much higher, the Appeal Panel considered that an issue potentially arose, regarding whether paragraph 1.32 of the Guidelines can be engaged, as a consequence of Medical Assessor Hong’s re-examination of the appellant and the Appeal Panel’s re-assessment of his degree of permanent impairment. Specifically, the potential issue was whether there has been effective long term treatment of the appellant’s injury and, if so, whether that has resulted in substantial or total elimination of his permanent impairment. In the Appeal Panel’s view that was not an issue that arose in the MAC, given that the Medical Assessor’s assessment of the degree of the appellant’s permanent impairment upon his injury was relatively modest. The issue arises, potentially, solely as a consequence of the Appeal Panel assessing the degree of the appellant’s permanent impairment, so as to correct the error in the MAC that the appellant identified, much higher than what the Medical Assessor did. Because this potential issue arises due to the Appeal Panel’s assessment of the degree of the appellant’s permanent impairment from his injury, the Appeal Panel considered, as indicated above, that it would need the parties to provide submissions to it on this issue, and directed they do so.
Both parties do not view this as an issue, and see no error in 1%WPI being added under paragraph 1.32 of the Guidelines. Accordingly, the Appeal Panel does so.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 March 2024 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: | W993/24 |
Applicant: | Daniel Cobcroft |
Respondent: | State of New South Wales (NSW Police Force) |
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 Timothy Berry 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 | 16 November 2021 | Paragraph 1.32 Chapter 11 | - | 20% | - | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
Matter Number: | M1-W993/24 |
Applicant: | Daniel Cobcroft |
Respondent: | State of New South Wales (NSW Police Force) |
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 and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
OR-
Table 1 – methods of assessment - Table of Disabilities and 1976 CAL Tables
| Body Part (as per Table of Disabilities) Industrial Deafness | Notional date of injury | Percentage loss of BHI (total BHI, as at the date of examination, from all causes - noise, injuries, conditions and abnormalities) | Less proportion due to pre-existing injury abnormality or condition (but excluding previous claims for industrial deafness and presbycusis) | Less proportion due to Presbycusis | Total percentage loss of Industrial Deafness (including all previous claims (as per Table of Disabilities) |
| Hearing loss percentages |
0
4
0