Cruickshank v State of NSW (NSW Police Force)
[2023] NSWPICMP 531
•25 October 2023
DETERMINATION OF APPEAL PANEL CITATION: Cruickshank v State of NSW (NSW Police Force) [2023] NSWPICMP 531 APPELLANT: Benjamin Cruickshank RESPONDENT: State of NSW (NSW Police Force) APPEAL PANEL MEMBER: John Wynyard MEDICAL ASSESSOR: Nicholas Glozier MEDICAL ASSESSOR: Graham Blom DATE OF DECISION: 25 October 2023 CATCHWORDS: WORKERS COMPENSATION - Appeal in psychological injury claim by police officer against the self-care and personal hygiene assessment made by the Medical Assessor (MA); whether assessment consistent with the evidence before him; whether assessment consistent with MA's own findings; whether assessment open on clinical grounds; whether the appeal was a mere disagreement; Held – assessment by a MA in this category was inconsistent with other histories taken, and his own findings within the body of his reasons; path of reasoning confused and inconsistent; Ferguson v State of New South Wales, Glenn William Parker v Select Civil Pty Ltd, Jenkins v Ambulance Service of New South Wales, Western Sydney Local Health District v Chan and Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; Medical Assessment Certificate revoked.
BACKGROUND TO THE APPLICATION TO APPEAL
1.On 12 April 2023 Benjamin Cruickshank, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 February 2023.2.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.
3.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.
4.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.
5.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). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
6.On 18 November 2022 this matter was referred to the Medical Assessor for a WPI assessment arising from psychiatric and psychological disorders that occurred on
28 January 2021.7.The history taken showed that the injury date may have been intended to be a deemed date, as Mr Cruickshank sustained injury during his time with the Police Force between 1999 and January 2021 when he was medically retired. As is not unusual with first responders,
Mr Cruickshank was exposed to a large number of traumatic experiences throughout his career and noticed some psychological difficulties as early as 2007.8.He obtained some treatment from a psychologist but found that his condition deteriorated over the years until he finally stopped working in 2021.
9.He continues to receive psychological treatment from a psychologist and a psychiatrist.
10.The Medical Assessor assessed a 10% WPI.
PRELIMINARY REVIEW
11.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.
12.As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no demonstrable error was established.
EVIDENCE
Documentary evidence
13.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.
Medical Assessment Certificate
14.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
15.Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
16.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.
17.In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
18.Mr Cruickshank appealed against the assessment for the category of self-care and personal hygiene within the six categories of the Psychiatric Impairment Rating Scale (PIRS) by which, pursuant to Chapter 11 of the Guides, WPI is assessed.
The MAC
19.The Medical Assessor took the relevant following history:[1]
“Mr Cruickshank reported that despite treatment, he is not substantially better. He said he relies on his partner for food preparation, especially dinner, and she does the shopping. He does not cook. In the daytime, he tends to eat cereal for breakfast, but said that he has too much sugar and chocolate. Mr Cruickshank eats whatever is in the fridge for lunch.
Sometimes a muesli bar, sometimes he makes a peanut butter sandwich.”
[1] Appeal papers page 38.
20.In considering Mr Cruickshank’s social activities of daily living the Medical Assessor noted:[2]
“Mr Cruickshank's wife tells him to shower. He said if he thinks of it, he will shower. He
estimates he will shower every three to four days.”
[2] Appeal papers page 40.
21.In giving his brief comments regarding other medical opinions and findings at [10c] of the MAC, the Medical Assessor considered the other reports before him.
22.With regard to Mr Cruickshank’s statement, the Medical Assessor noted that Mr Cruickshank reported that his self-care had reduced significantly. He did not leave home often and saw no point in being presentable, amongst other matters Mr Cruickshank discussed.
23.The Medical Assessor in commenting on the statement said:
“I took a similar history of his functioning……”
24.When considering the report of Dr Abdul Khan, the medical-legal psychiatrist retained by
Mr Cruickshank the Medical Assessor said:[3]“In terms of self-care, Dr Khan rated a 3 and noted Mr Cruickshank needs to be prompted to brush his teeth and shower and he makes less effort with grooming, such as shaving and changing clothes, and relies on his wife for cooking and cleaning. In my assessment, I noted that he neglected his self-care and overall, he demonstrated a sufficient level of self-direction and even without prompting, he would maintain a basic level of nutrition and hygiene and therefore, I rated it 2.”
[3] Appeal papers page 43.
25.The Medical Assessor accordingly assessed a class 2 value for this category. In the Table 11.8 Certificate he said:[4]
“Mr Cruickshank has been neglecting his self-care. He does not eat or shower regularly.
He receives prompting from his family. He described a sufficient level of self-direction and general functioning and he does not need prompting.
He is capable of independent living without regular support.”
[4] Appeal papers page 47.
26.As to Mr Cruickshank’s presentation, the Medical Assessor said:[5]
“• consistency of presentation
I have found no inconsistency in Mr Cruickshank's presentation.”
[5] Appeal papers page 42
SUBMISSIONS
Appellant
27.Mr Cruickshank kindly set out the descriptors contained in Table 11.1 of the Guides.[6]
Mr Cruickshank referred to the comments made by the Medical Assessor which we have reproduced above.[6] Guides page 56.
28.The class 2 evaluation, Mr Cruickshank submitted, was erroneous.
29.We were referred to Mr Cruickshank’s statement of 6 September 2022 about his self-care.
30.We were referred to the findings by Dr Khan in his report of 23 March 2022.
31.Mr Cruickshank submitted that the evaluation was not consistent with the observations the Medical Assessor had made in the body of his report, and were not consistent with the other material to which he had referred.
32.Those matters did not support a class 2, Mr Cruickshank submitted. The evidence demonstrated that Mr Cruickshank did need prompting to maintain his self-care and personal hygiene, and the Medical Assessor’s findings in the PIRS table did not reflect his comments within the body of the report.
33.The evidence Mr Cruickshank submitted was to the contrary.
34.Accordingly, it was submitted, there was a failure by the Medical Assessor to give adequate reasons for his assessment.
Respondent
35.The respondent referred to Chapters 1.6, 11.6, 11.11 and 11.12 of the Guides, and kindly reproduced them.
36.We were referred to a Daily Living Assessment report of 15 June 2021 and the conclusions reached by the authors.
37.The respondent then referred to the comments by the Medical Assessor which we have reproduced above, and which were also referred to by Mr Cruickshank.
38.We were referred to the comments made by the Medical Assessor about Dr Khan’s report.
39.We were also referred to the Medical Assessor’s comments about the Daily Living Assessment Report of 15 June 2021.
40.Further, a report from the treating psychiatrist Dr Betts of 6 September 2021 was referred to by the respondent, which noted that Mr Cruickshank was likely, with the assistance of psychological treatment, to see an eventual improvement in symptoms.
41.The respondent also referred to a report by Dr Harmer of 21 February 2022 which reported treatment plans for ongoing lifestyle changes, healthy eating, reducing alcohol and taking regular physical activity.
42.Having referred to that evidence, the respondent submitted that a Medical Assessor was required to assess a claimant as he/she presented on the day of assessment.
43.We were referred to authority that emphasised the importance of clinical judgement in this field of medical science, and which considered the approach to be taken to the assessment of psychiatric impairment. We will refer to that authority presently.
44.The respondent submitted that accordingly no error had been demonstrated and that the appeal should be confirmed.
DISCUSSION
The Psychiatric Impairment Rating Scale (PIRS)
45.The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
46.Chapter 11.12[7] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[7] Guides 55.
47.The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[8]
[8] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
48.The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[9] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[10]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[9] [2017] NSWSC 887 (Ferguson).
[10] [2015] NSWSC 633 (Jenkins).
49.In Glenn William Parker v Select Civil Pty Ltd,[11] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24]).”
[11] [2018] NSWSC 140 (Parker).
50.In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
51.It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a. if the categorisation was glaringly improbable;
b. if it could be demonstrated that the AMS was unaware of significant factual matters;
c. if a clear misunderstanding could be demonstrated; or
d. if an unsupportable reasoning process could be made out.
52.In Western Sydney Local Health District v Chan[12] Adams J found that a Medical Assessor (AMS as they were then called) was bound following the High Court authority of Wingfoot Australia Partners Pty Ltd v Kocak[13] to set out in his Statement of Reasons the actual path of reasoning by which he arrived at his opinion.
[12] [2015] NSWSC 1968.
[13] [2013] HCA 43; 252 CLR 480.
53.We have already referred to Vegan at the outset of these reasons which found that the extent of the reasons required to be given by an Appeal Panel (and by analogy with Chan, a Medical Assessor) can vary from case to case, depending on whether one conclusion or more than one conclusion is open.
54.In this case the appellant has confined the issue as to the adequacy of the reasons given by Medical Assessor for his assessment of a class 2 evaluation of the behavioural consequences caused by Mr Cruickshank’s disorder to his self care and personal hygiene.
55.Table 11.1 of the Guides[14] provide a class 2 description as:
“Mild impairment: able to live independently, looks after self adequately although look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
[14] Guides page 56.
56.Class 3 provides:
“Moderate impairment: cannot 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.”
57.Both parties have relied on portions of the evidence that was before the Medical Assessor to support their submissions.
58.Mr Cruickshank relied firstly on his statement of 6 September 2022.[15] Under the heading ‘Self Care,’ Mr Cruickshank said:
“35. Prior to my psychological injuries I took pride in my appearance and would make sure I look presentable and professional for work. My employment required me to be very well groomed hence I showered and brushed my teeth daily and I considered myself a clean person. I ate regular meals and enjoyed cooking for my family.
36. Since my psychological injuries my ability to engage in self-care and personal hygiene activities has reduced significantly. I do not leave my house often, so I see no point in ensuring that I look presentable or well-dressed. I often forget to brush my hair or shave simply because I am too unmotivated to even get out of bed some days, let alone make sure I look clean. I shower and brush my teeth on average every 3-4 days when prompted by my wife. If not for her suggestions I doubt I would ever complete these tasks. I no longer eat regularly, and I am highly reliant on my wife to cook and prompt me to eat.”
[15] Appeal papers page 100.
59.Mr Cruickshank relied also on the findings of medico-legal specialist Dr Abdal Khan of
23 March 2022.[16] Dr Khan said:“Mr Cruickshank showers and brushes his teeth on average every three to four days when prompted by his wife. He makes less effort with personal grooming such as shaving as well as with his clothing. Mr Cruickshank relies on his wife for cooking and cleaning.”
[16] Appeal papers page 117, at 125.
60.Dr Khan assessed a class 3 moderate impairment.
61.The respondent referred to a report of Mr David Farrar, an occupational therapist dated
15 June 2021.[17] It was alleged that the assessment was conducted “in a manner consistent with the SIRA guidelines”. The respondent submitted that the report was a relevant document, as it predated Dr Khan’s more favourable report.[17] Appeal papers page 134.
62.The summary of Mr Farrah’s report was most general and the respondent’s submission did not reflect the detail of the 11 page highly templated report, the purpose of which was described as: [18]
“….. a Home & Activities of Daily Living (ADL) Assessment by EML Insurance for NSW for the purpose of assessing Mr Cruickshank’s:
· Independence and safety with self-care tasks and Activities of Daily Living (ADLs);
· Requirement for domestic assistance;
· Requirement for lawn services and/or household maintenance;
· Requirement for home equipment and/or modifications.
….”
[18] Appeal papers page 135.
63.Mr Farrah allegedly determined that Mr Cruickshank reported that he was independent with mobility, dressing, showering, shower transfer, toileting, toilet transfer, grooming, eating and drinking, sleeping, bed transfer and car transfer. In fact Mr Farrah had typed “N/A” next to each activity, which was part of the template Mr Farrah had been using, so there is no factual basis to the respondent’s submission.
64.We have no doubt that Mr Cruickshank was independent in carrying out a number of those activities, which appear to be more appropriately designed for a person with physical problems which, we surmise, is why Mr Farrah marked them ‘not applicable’.
65.In any event, we doubt that Mr Farrah’s templated document was ever intended to be applied in the fashion advanced by the respondent.
66.The reliance by both parties on material that was before the Medical Assessor can have some utility, depending on the facts of the case. However, we would note that there is nothing that has been raised that would suggest that the Medical Assessor has misunderstood the facts or that he was unaware of any significant factual matters.
67.The difficulty with the Medical Assessor’s classification regarding Mr Cruickshank’s self-care and personal hygiene is that there is an inherent contradiction in the Medical Assessor’s own reasons. We agree with Mr Cruickshank that the Medical Assessor has not properly explained why he found a class 2, mild effect, when his comments both within the PIRS table itself and within his own MAC tended to support a class 3 moderate assessment.
68.We acknowledge both that there is a more significant responsibility on a clinician in this area of medical science that arises from his face-to-face interview and the clinical observations that a Medical Assessor makes during that process.
69.We also note that a mere difference of opinion about which reasonable minds might differ is not sufficient to warrant interference by an Appeal Panel. However, the issues raised by
Mr Cruickshank go further than a mere difference of opinion.70.We observe that the category is entitled “self-care and personal hygiene”. We note that the Medical Assessor spoke of ‘self-direction and general functioning’ in the PIRS Table 8 form for this category The descriptors for both mild and moderate impairment include the question of a claimant’s independence, rather than his self-direction and general functioning.
71.The Medical Assessor accepted that Mr Cruickshank received prompting from his family, but the finding that Mr Cruickshank did not need prompting we found to be contradictory. It was inconsistent both with the comment in the sentence preceding it in the Table 8 form, and the history he recorded in the body of his reasons that Mr Cruickshank relied on his partner for food preparation, and that she told him to shower.
72.Further, the Medical Assessor stated that Mr Cruickshank was ‘capable of independent living without regular support,’ which again was inconsistent with the history he took that
Mr Cruickshank relied on his wife to prompt him to shower, and that she did the food preparation. This appears to based on an untested hypothesis of what might happen if there were no prompting, rather than the history obtained by the Medical Assessor.73.The Medical Assessor noted the restrictions listed by Dr Khan on 23 March 2023, but distinguished the class 3 assessment by Dr Khan, saying that that Mr Cruickshank had described a sufficient level of self-direction, which, as indicated, he repeated in his PIRS Table.
74.Just what that ‘sufficient level of self-direction’ was, and why it indicated that Mr Cruickshank was ‘capable of independent living without regular support’ in the face of the evidence before the Medical Assessor, was not explained.
75.One explanation for these contradictory finding might have been that the Medical Assessor had some reservations about Mr Cruickshank’s reliability, but he did not say so. Rather, he found ‘no inconsistency in Mr Cruickshank’s presentation.’
76.The assessment in this category accordingly will be revoked, as the reasons given for it are inadequate, and, with respect, show a confused path of reasoning.
77.We do not need to re-examine Mr Cruickshank, however. The evidence, as we have indicated, favours a class 3, moderate, assessment, and the impairment described by the Medical Assessor is moderate. There is no competing assessment, as the medico-legal expert retained by the respondent, Dr Gordon Davies, declined to make a PIRS assessment, Mr Cruickshank being in hospital when Dr Davies assessed him. However, Dr Davies agreed “in general terms” with Dr Khan’s assessment, and that there were no signs or indications of exaggeration, malingering, inconsistency or unreliability from Mr Cruickshank.[19]
[19] Appeal papers page 197.
78.For these reasons, the Appeal Panel has determined that the MAC issued on
16 February 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:
W5804/22
Applicant:
Benjamin Cruickshank
Respondent:
State of NSW (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 Michael Hong 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
28 January 2021
Chapter 11
page 55-60
14
19
nil
19
Total % WPI (the Combined Table values of all sub-totals)
+1% treatment uplift
20%
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
Name
Benjamin Cruickshank
Claim reference number (if known)
W5804/22
DOB
Age at time of injury
Date of Injury
28 January 2021
Occupation at time of injury
State of NSW (NSW
Police Force)
Date of Assessment
31/1/2023
Marital Status before injury
Married
Psychiatric diagnoses
Posttraumatic stress
disorder with anxiety and
depressive symptoms
Psychiatric treatment
Psychologist Psychiatrist Medications One psychiatric admission Day program
Is impairment permanent?
No (circle one)
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
3
Mr Cruickshank has been neglecting his self-care. He
does not eat or shower regularly.
He receives prompting from his family. He is unable to live independently, does not prepare own meals, family member (wife) ensures minimum standard of hygiene and nutrition
Social and recreational activities
2
He attends regular social recreational activities with his family and friends. Overall, he has been attending less since his injury. This includes eating out at cafés and restaurants, staying with family or having friends staying over sometimes. This is around once every 4 weeks, or a few times a year down the coast. He rides his motorcycle much less frequently now, sometimes with his friend and sometimes on his own.
Travel
2
Mr Cruickshank is anxious and avoids crowded places
and some places he attended as a police officer.
Social functioning
2
Mr Cruickshank's relationship with his wife has been strained as he starts arguments with her. He lost some friends as a result of his irritability. He does not contact his friends anymore. He is able to maintain a few long-term friendships. The relationship with his general family is good and they are close.
Concentration, persistence and pace
3
Mr Cruickshank described having poor concentration. He no longer maintains his vehicles due to poor concentration. He described being unable to engage in intellectually demanding tasks.
Employability
5
Mr Cruickshank has no work capacity due to his PTSD and Alcohol use disorder, and described difficulties with the general public.
Score
Median Class
2
2
2
3
3
5
3
Aggregate Score Impairment
Total
%
+
+
+
+
+
17
19
Pre-existing injury
0
Treatment effects
Treatment effects There has been mild substantial elimination of impairment with treatment, and his overall functioning is greater, compared to the previous assessment findings.
1
Final WPI
20%
0
6
0