Dunn v Novacare Community Services Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Dunn v Novacare Community Services Limited [2021] NSWPICMP 231
APPELLANT:	Deborah Dunn
RESPONDENT:	Novacare Community Services Limited
APPEAL PANEL:	Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	6 December 2021
CATCHWORDS:	WORKERS COMPENSATION- Medical Assessor (MA) found the appellant was not at maximum medical improvement (MMI); appellant submitted that the determination was not in accordance with 1.15 and 1.16 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued 1 March 2021 and there was a demonstrable error in that there was no evidence to suggest that the appellant had not reached MMI; Held – Panel found no error in the Medical Assessment Certificate nor any application of incorrect criteria.

AMENDED STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 April 2021 Deborah Dunn (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Christopher Bench, Medical Assessor (the MA) and issued on 29 March 2021.
The respondent to the appeal is Novacare Community Services Limited (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and

· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant developed a primary psychological injury in the course of her employment as Quality and Systems Co-ordinator as a result of alleged bullying and harassment by management and the insurer ignoring treatment requests.
The matter was referred to the MA, Dr Bench, for assessment of whole person impairment (WPI) of Ms Dunn’s psychological disorder attributable to the injury on 25 June 2018.
The MA examined the appellant on 10 March 2021 via Skype and in the MAC dated 29 March 2021 at 10(d) stated: “"Given the applicant has not reached maximum medical improvement, an assessment of whole person impairment is not indicated".

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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested that she be re-examined by a MA who is a member of the Appeal Panel. The respondent submitted that there is no proper basis for Ms Dunn to be
re-examined by an MA who is a member of the Appeal Panel.
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 there was sufficient evidence on which to make a determination.

FRESH EVIDENCE

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
Ms Dunn seeks to admit the following evidence:
(a) the statement of Deborah Dunn dated 21 April 2021.
Ms Dunn did not make submissions addressing the relevant tests at common law for the introduction of fresh evidence. Ms Dunn only submitted that the issues of whether Ms Dunn was unlikely to improve and whether her treatment has been inadequate were supported by the evidence in the statement dated 21 April 2021. The statement of 21 April 2021 did raise issues as to the accuracy of the history taken by the MA.
The respondent submitted, that in the statement dated 21 April 2021, Ms Dunn cavilled with what the MA said she reported to him and submitted that this further statement had no probative value and should not be admitted into evidence.
The Appeal Panel agreed with the respondent that Ms Dunn, in her statement of 21 April 2021, described how she did not agree with the MA and further that she did not consider that any further treatment would be effective. Ms Dunn did not provide any basis upon which her statement should be admitted into evidence.
The respondent submitted that Ms Dunn was attempting to merely raise objection with the determination of the MA and his clinical judgment undertaken at the time of the assessment. Further, the statement could not be relied upon to substantiate the allegation that the MAC contains a demonstrable error.
As stated by the Court of Appeal in Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 (Pitsonis):
“Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”
The respondent argued that there was no evidence on the face of the MAC that the MA made errors with respect to the history he obtained or that he misunderstood what Ms Dunn may have said during the examination. The MA was obliged to, and did consider, all of the evidence provided to him as he clearly sets out in Part 10c of the MAC.
The respondent referred to the decision of Rodrigo v Blackheath Area Neighbourhood Centre Inc [2021] NSWPICMP32 in which the Appeal Panel said:
“Even if she had recounted in her statement what she says was said between her and the AMS during examination, that evidence would still not be able to be demonstrate the MAC contained an error, and hence would not be probative to the ground for appeal the Appeal Panel must consider. This is because evidence which goes beyond the face of the MAC cannot be relied upon to substantiate the MAC contains a demonstrable error … Accordingly, the Appeal Panel is unable under Section 328(3) to receive her statement into evidence.”
The Appeal Panel accepted that this evidence was not available before the examination by the MA and could not have been reasonably obtained as it related to events that took place during the examination by the MA.
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156. Hoeben J held that a statutory declaration addressing the way in which an AMS carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).”
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
Although the statement of Ms Dunn came within the literal definition of “fresh evidence” as referred to in s 328(3), the Appeal Panel decided to disregard that evidence since it was not probative to the grounds of appeal to be considered. Further, to admit such a statement would be quite contrary to the purpose of the 1998 Act. The Appeal Panel does not understand the intention of the legislature to be that such criticisms of an MA ought to be admitted as fresh evidence. The Appeal Panel believes that the purpose of the legislation is to give some prima facie credence to the opinion of a MA in situations where he has examined the client and all the competing medical views. The system would not be able to operate properly if the MA’s view could be overturned merely because of some untested documentary evidence as to the events that occurred during the examination.
The statement of Ms Dunn was not additional relevant information, that is, information relevant to the task which was being performed by the MA. The Appeal Panel decided that the statement of Ms Dunn was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) the statement of Deborah Dunn dated 21 April 2021.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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.
The appellant’s submissions include the following:
(a)    Ground 1 – the MA has made his assessment on incorrect criteria in that he did not examine Ms Dunn in line with the Guidelines for psychiatric/psychological injuries.
(b)    The MA assessed this matter incorrectly in several aspects, in particular, the assessment as to whether Ms Dunn has reached Maximum Medical Improvement (MMI). It appeared that the MA determined the outcome only on the basis of several comments Ms Dunn made via the SKYPE assessment.
(c)    This finding of not being at MMI was contrary to the reports of Dr Smith, Dr Baker and Dr Anand’s observations and reports. In his report dated 22 January 2019 at page 8, Dr Baker provided an opinion that Ms Dunn had reached MMI even though he considered that she still required further medical and pharmacotherapy treatment.
(d)    Dr Baker, in his report dated 30 August 2020, provided a diagnosis (at page 6) of Persistent Depressive Disorder with Persistent Major Depressive Disorder, and noted that Ms Dunn had been taking Venlafaxine with Mirtazapine, received treatment from a clinical psychologist, Ms Stella Bowring, and from a psychiatrist, Dr Ranasinghe. Dr Baker considered that Ms Dunn continued to require medication and again considered that she had reached MMI.
(e)    Dr Selwyn Smith, in his report dated 19 November 2020, noted that Ms Dunn was taking Effexor instead of Mirtazapine and had ceased treatment with her psychologist Ms Bowring, had had treatment with Dr Ranasinghe and had problems with alcohol. At page 7 of his report, Dr Smith opined that Ms Dunn has reached MMI. In his report dated 11 December 2020, Dr Smith provided a diagnosis of an Adjustment Disorder with Mixed Depressed and anxious mood that was chronic. Dr Smith recommended that Ms Dunn continue with psychiatric counselling and recommended that she continue treatment.
(f)    Dr Anand, in his report of 24 September 2018, at page 6, provided a diagnosis of Adjustment Disorders with Depressed Mood. Dr Anand noted the treatment with clinical psychologist Stella Bowring and that Ms Dunn took 10mg Loxalate daily. Dr Anand did not consider that Ms Dunn had reached MMI and would improve with further treatment.
(g)    In his report of 24 December 2020, Dr Anand made several errors in his report, namely, that Ms Dunn had not received treatment which she had, and that her mother was residing in a nursing home when in fact she had just passed away. This may be attributed to the many different medications that Ms Dunn was taking at the time and her inability to remember or concentrate.
(h)    However, in his report dated 9 January 2020, Dr Anand noted at page 2, that
Ms Dunn had received psychiatric treatment and medication of Efexor, Mirtazapine, Jardiance, Metformin and Lipitor, but continued to suffer anxiety with low mood, poor short term memory and lost confidence. Dr Anand considered that Ms Dunn was still suffering from an Adjustment Disorder with mixed anxiety and depressed mood. At page 6 he stated that Ms Dunn has reached MMI and agreed with her current treatment arrangements.
(i)    The incorrect criteria raised in the MA’s assessment was that the determination was not in accordance with 1. 15 and 1.16 of the Guidelines.
(j)    The MA provided his reasons of his assessment for not reaching MMI at paragraph 10 of the MAC. In those reasons the MA stated "Ms Dunn noted there has been a worsening in her symptomatology over the last six to twelve months. For example, she has had persistent passive suicidal ideation over the last six months". There was no evidence as to any suggestion of suicidal tendencies reported in any of the reports provided nor by Ms Dunn in any of her statements including the further statement attached to this application dated 21 April 2021.
(k)    The MA assessed Ms Dunn incorrectly in relation to the Guidelines on the basis that she was unlikely to improve (Part 1.15 of the Guidelines) and there was no evidence that treatment has been inadequate and that deferring the assessment would result in any improvement to Ms Dunn.
(l)    This supported by the statement of Ms Dunn dated 21 April 2021 in which she stated that she was continuing to suffer from ongoing incapacity and clinical problems directly related to her injury and that "I do not agree with him that this has worsened but this reflects what I have suffered/or that same 18 month period''. Further, Ms Dunn stated that she did “not consider that any treatment would be effective and do not intend to or can afford to undertake any treatment". As such she confirmed that she was refusing to undertake any further treatment as she deemed it ineffective in light of the treatment she had received over two years.
(m)     Ground 2 - there was a demonstrable error in that there were no grounds for the MA to provide a finding that Ms Dunn’s psychological condition has either worsened or that she was suffering "an onset of persistent suicidal ideation - over the last six months".
(n)    Ms Dunn has had a period of over two years from date of injury to assessment by the MA. Ms Dunn has had various medications for her psychological condition as well as periods of extensive psychological counselling and psychiatric treatment without improvement and there was no evidence to suggest that Ms Dunn had not reached MMI.
(o)    The appeal should be upheld and the appellant re-examined and an assessment of WPI made.
The respondent’s submissions include the following:
(a)    In accordance with the Guidelines, MMI is considered to occur when the worker’s condition is well stabilized and unlikely to change substantially in the next year, with or without medical treatment.
(b)    The MA provided sufficient reasons for his findings and that these were open to be made by him based on what, in his clinical judgment, he considered were significant matters.
(c)    In relation to incorrect criteria, Part 1.15 and 1.16 of the Guidelines confirm that assessments can only be conducted when the MA considers that the degree of permanent impairment is unlikely to improve further and that if the MA considers that the claimant’s treatment had been inadequate then the assessment should be deferred, and comment made on the value of additional or different treatment and/or rehabilitation.
(d)    The MA at part 8d. of the MAC stated that Ms Dunn indicated that she was attempting to pursue further psychiatric treatment and was willing to pay for private treatment with Dr Smith. He also recorded Ms Dunn as reporting that she was in the process of organising this treatment. Further, the MA recorded
Ms Dunn acknowledging that there had been a deterioration in her mental health which she attributed to a lack of mental health care.
(e)    The following evidence supports the finding by the MA that MMI has not been reached:
(i) In her statement dated 11 November 2020 at page 10 of the ARD the Ms Dunn stated: “I have now seen a report by Dr Cameron who has got in contact with Dr Ranasinghe and take, down information that appears to be false as I have not seen Dr Ranasinghe for months now Dr Ranasinghe was not providing any treatment apart from a 15 minute visit where I would be asked a few questions and that's it…
On 26 October 2020 I had a medical appointment with my GP
Dr Beattie at Blue Haven medical centre that the insurer had still not approved treatment with Dr Smith and she rang the case worker Alex O'Connell whilst I was sitting in her room. Dr Beattie had the phone on conference (so I could hear it too) and had a discussion with Alex O'Connell. In that call Alex O'Connell said: "If you send through the referral I will approve treatment today". Dr Beattie had her office send that referral to EML while I was still there.
On 12 November 2020 I again contacted Burwood Hospital and they have informed me that the Insurer EML has still not approved treatment for me.
I want to seek further treatment from Dr Smith but the insurer is declining to approve my treatment which they have not provided a reason for”.
(ii) In her statement dated 29 June 2020 at page 13 of the ARD Ms Dunn stated: “My alcohol consumption has gone from someone who rarely drank ever to now a minimum of approximately six – ten large vodkas daily to help me cope with the situation my life has become”.
(iii) In her statement dated 13 August 2020 at page 12 of the ARD
Ms Dunn stated: “My psychologist Dr Ranasinghe … I do not see her anymore as she is doing nothing for me and just keeping me on medication”.
(iv) In his report dated 22 January 2019 at page 18-20 of the ARD,
Dr Baker stated: “She did not report any suicidal plans at the time of this assessment … In my medical opinion, Ms Dunn will require further medical treatment. Should her mental state become more disabling she is likely to require inpatient psychiatric treatment for stabilisation of her depressed mood. She has not had access to all of the currently available psychiatric treatments. In particular, she has not had access to currently available physical psychiatric treatments such as TMS (Trans-cranial Magnetic Stimulation) and ECT (Electroconvulsive Therapy) or tDCS. These treatments can be given in accordance with RANZCP Guidelines”.
(v) In his report of 30 August 2020 (page 25 of the ARD) Dr Baker relevantly stated:
“Ms Dunn's has not been at work for over two years. Her mental state during this period has continued to decline…
During 2020 Ms Dunn was only attending her general practitioner,
Dr Beattie once every, one to two months. In my medical opinion this treatment is insufficient and likely to result in future deterioration in
Ms Dunn's mental state …
During the period between my two reports Ms Dunn had become more depressed and hopeless … As documented in my original report … Ms Dunn required further medical treatment. Her mental state has become more disabling … She would benefit from inpatient psychiatric treatment … She has not had access to all of the current and available psychiatric treatments. In particular, she has not had access to currently available physical psychiatric treatments such as TMS … ECT … or tDCS
Whilst Ms Dunn drinks alcohol from time to time, she is not drinking alcohol daily …She fails to reach the diagnostic criteria for Alcohol Use Disorder … at the time of this assessment in August 2020.
Should Ms Dunn not receive this minimum necessary psychiatric treatment, her mental state and work-related injury is likely to become more severe. The longer Ms Dunn suffers from psychiatric symptoms the more likely she will never enter full remission from her work related injury.
(vi) In his report dated 19 November 2020 (pages 43-45 of the ARD)
Dr Selwyn Smith stated: “Ms Dunn as a method of coping with her symptomatologies has also resorted to increasing consumption of alcohol to the extent that she satisfied diagnostic criteria for Alcohol Use Disorder …She has also experienced recurrent thoughts of self harm”.

(f)    The MA correctly assessed Ms Dunn in accordance with the requirements outlined in the Guidelines. It is superfluous whether the MA’s observations and opinion differed to the qualified and/or treating reports relied upon by Ms Dunn.
(g)    The MA clearly sets out at 10c. the reasons as to why his opinion differed from these other opinions.
(h)    In his report of 30 August 2020, Dr Baker recorded that Ms Dunn drank alcohol from “time-to-time”. However, Ms Dunn’s supplementary statement dated 29 June 2020, which only slightly predated Dr Baker’s 30 August 2020 report, recorded Ms Dunn stating “my alcohol consumption has gone from someone who rarely drank ever, to now a minimum of approximately 6 – 10 large vodka’s daily to help me cope with the situation my life has become”.
(i)    In his report dated 30 August 2020, Dr Baker also recommended ongoing psychiatric treatment. Dr Baker noted that without treatment, the appellant’s injuries were likely to become more severe. This supports a deterioration and the non-attainment of maximum medical improvement being achieved as identified by the MA.
(j)    The MA specifically agreed with Dr Baker that Ms Dunn required more intensive psychiatric and substance abuse treatment and that with this treatment, her impairment was likely to change by more than 3%. He subsequently considered that this supported his determination that maximum medical improvement had not been achieved.
(k)    The MA also referred to the supplementary statement of Ms Dunn dated 11 November 2020. In this statement, she says (at paragraph 11) “I want to seek further treatment from Dr Smith but the Insurer is declining to approve my treatment which they have not provided a reason for”.
(l)    Dr Baker recorded in a report dated 30 August 2020 that Ms Dunn’s mental state requires further medical treatment as her mental state has become more disabling such that he considered she required inpatient psychiatric treatment for stabilization of her depressed mood. He considered that should Ms Dunn not receive this minimum necessary psychiatric treatment, that her symptoms were likely to become more severe. This evidence supported the MA’s determination that maximum medical improvement had not been reached.
(m)     Ms Dunn, at medical assessment, and in her statements referred to wanting to undergo further treatment as she considered that her condition had deteriorated following cessation of same. The MA clearly considered that the most recent treatment had been inadequate, as there had been a lack of treatment and that subsequently, maximum medical improvement had not been reached.
(n)    Basten JA in Campbelltown City Council v Vegan (2006) 67 NSWLR 372 said that to satisfy “incorrect criteria” reference must be made to such matters as the tests set out in the Guidelines where they are applicable. In this matter, Ms Dunn has merely alleged errors in the factual data that the MA recorded and/or applied to the appropriate criteria and that therefore an appeal referable to s 327(3)(c) does not apply. Ms Dunn has not proven that the MA has used or relied upon incorrect criteria.

(o)    In relation to Demonstrable Error, all of the evidence, both factual and medical, recorded by the MA in the MAC dated 29 March 2021 clearly provided grounds for a finding that Ms Dunn’s psychological condition had worsened and that she suffered onset of persistent suicidal ideation over the last six months.
(p)    The Court of Appeal in Ballas v Department of Education (State of NSW) [2020] NSWCA86(Ballas) quoted with approval the observation of Hoeben J in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC939: “It is sufficient for the purposes of this matter that I conclude that ‘demonstrable error’ is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment”.
(q)    The Court of Appeal in Ballas also quoted with approval the observation of Hoeben J in Merza that “error alone [was] not sufficient”. It must be an error that affected the outcome.

(r) There is evidence that Ms Dunn considered that her condition had deteriorated due to the cessation of treatment and that further, she wished to recommence treatment with Dr Selwyn Smith. The MA recorded Ms Dunn specifically stating that she had persistent passive suicidal ideation over the last six months and it was her desire and intention to return to Dr Selwyn Smith on a private basis.

(s) In addition, and due to her significant increase in alcohol intake, the MA considered it imperative that the appellant undertake both mental health and substance abuse treatment. We note this recommendation was also supported by Dr Baker. Once this is completed, he considered that her whole person impairment was likely to change by more than 3%.

(t) The length of time over which Ms Dunn has suffered symptoms does not impact on whether maximum medical improvement has been reached if the MA considers that further treatment will have a substantial impact on her symptoms.

(u) Whether maximum medical improvement has been reached is a matter for the MA to determine based on a consideration of all of the evidence and applying clinical judgment.

(v) The MA has not therefore determined the outcome only on the basis of several comments Ms Dunn has made via the Skype Assessment. The MA quoted all of the relevant evidence in support of his assessment in the MAC, especially with respect to lack of recent treatment and the deterioration in her condition as a result thereof, so that it cannot be said that the MA has applied incorrect criteria or made a demonstrable error. One example is the increasing use of alcohol, with Dr Selwyn Smith having diagnosed an Alcohol Use Disorder. The MA noting more recent suicidal ideation was also consistent with the other medical opinions on file, as is the MA noted that Ms Dunn wanted treatment from Dr Smith.

(w) The MA has noted all of the evidence in significant detail in the MAC, as well as what Ms Dunn told him, and the MA’s opinion that maximum medical improvement has not yet been reached is justified and should not be disturbed. A difference of opinion in that regard between the MA and other specialist opinions is not a proper basis for claiming that the Medical Assessor has applied incorrect criteria or that the MAC contained a demonstrable error in that regard, in this matter.

(x) The MAC neither contains a demonstrable error, nor were there any “incorrect criteria” applied by the MA.

(y) The MAC should be confirmed.

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. 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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

The Medical Assessment Certificate

Under “History relating to the injury”, the MA wrote:
“The applicant noted the onset of symptomatology dating back to June 2018. She noted, “I couldn’t cope anymore … I couldn’t stop crying … I was a total mess … I’ve lost all my confidence. I have trouble with my memory … I don’t trust people at all.
I don’t like going out.
I don’t socialise with people anymore. My whole life has changed.” She reported having
great difficulties with anxiety. She has had no sex drive. Her appetite has been erratic. She will at times eat nothing, whereas at other times engages in binge eating of junk food. Her weight is virtually the same. She noted having greatly increased her use of alcohol since
January 2020 in the context of anxiety. She has had feelings of hopelessness and
depression. She reported difficulties with insomnia, especially initial insomnia. She reported great difficulties with lethargy. She reported having had suicidal ideation “once” soon after the work injury, “I was walking across a bridge and thought I could quite easily jump”. On the other hand, with some exploration, she has had quite persistent difficulties with passive suicidal ideation, “I would rather not be here”. She has never made a suicide attempt or engaged in deliberate self-harm.
The applicant noted the onset of mental health care in June 2018 with Dr Shamila Beattie.
Dr Beattie diagnosed depression and commenced her on the anti-depressant Effexor. She failed a trial of an anti-anxiety tablet, the name of which she could not recall. She was referred to a psychiatrist Dr Ranasinghe who added mirtazapine (Avanza).
Dr Ranasinghe diagnosed depression and anxiety and increased her dose of Effexor. She has had no contact with Dr Ranasinghe in nine months. She was referred to a different psychiatrist, Dr Selwyn Smith, seemingly, initially for an independent medical examination, however, has subsequently seen him on one occasion privately for treatment after the workers compensation claimer declined to pay for the session. She was unsure of the diagnosis, “I think the same thing”. She has had no contact with
Dr Smith in three months. He made no changes to her medication. She was referred to the psychologist Stella Bowring who diagnosed depression and anxiety. She has had no contact with Ms Bowring for eleven months. As far as I could deduce, she has had no engagement with vocational rehabilitation. She has never had an inpatient admission or participated in intensive outpatient program.”

Under “Present symptoms”, the MA wrote:
“The applicant is fully compliant with her medications. There were no side-effects elicited. The defendant described her recent mood as “I think I’m actually getting worse. I told Dr Beattie the other day”. She attributes the deterioration in her mental health to the decreased mental health care she has engaged in over the last twelve months. In elaboration, she stated, “my lows are getting really low … I’m getting back to how I was. I don’t want to do anything. I just want to curl up in a ball … I’d like to go to sleep and not wake up”. She noted only having had the onset of persistent suicidal ideation “over the last six months … I haven’t really improved, but now I don’t even bother making an effort”. She has ongoing difficulties with initial insomnia. She is only sleeping approximately five hours per night. She has no energy. Her libido is “nil”. Her appetite remains erratic, “I’m not really interested in food”. Occasionally, she binge-eats chocolate. She has persistent passive suicidal ideation “I would rather not be here”. She adamantly denied any active suicidal ideation, plan or intent. She noted the most significant protective factors are her relationships with her grandchildren, sisters and partner. The applicant has “really bad” anxiety with a lack of self-confidence. At times she has tremors and tearfulness. She is avoidant of various activities, especially ‘meeting new people’.”
At 8(d) the MA wrote under “If stabilisation/maximum medical improvement of any or all injuries has not been reached, when, in your opinion, will this occur?”:
“Such is somewhat unclear at the moment, as the applicant is unaware of any current
changes to her treatment. However, she indicated she is attempting to pursue further
psychiatric treatment to the point that she is willing to pay for such treatment privately with Dr Smith and is in the process of organising such. Furthermore, she similarly acknowledged that there had been a deterioration in her mental health in recent months, which she attributed to a lack of mental health care.”
Under “Reasons for Assessment” the MA wrote:
“The applicant has suffered a work injury (Persistent Depressive Disorder with anxious
distress and Alcohol Use Disorder). It is the evaluator's opinion the work injury has caused impairment. With a reasonable degree of medical certainty, it is the evaluator's opinion the applicant's condition has not stabilised to reach maximum medical improvement. Ms Dunn noted there has been a worsening in her symptomatology over the last six to twelve months. For example, she has had persistent passive suicidal ideation over the last six months. Whereas there are no current changes to her treatment regimen, she, in fact, stated it is her desire and intention to return to see
Dr Selwyn Smith on a private basis. Moreover, she is proposing to re-commence seeing Dr Smith in the foreseeable future. Furthermore, given her current use of alcohol, it is the evaluator's opinion any mental health clinician who takes such a history will similarly feel it imperative the applicant get into both mental health and substance abuse treatment. It is the evaluator's opinion in this context, her whole person impairment is likely to change by more than 3% whole person impairment in the next 12 months, and her condition has thus not stabilised or reached maximum medical
improvement.”
In commenting on other medical opinion, the MA wrote:
“Dr Baker assessed a whole person impairment of 22%, again deducting 1/10th for the pre-existing impairment. As noted above, I would agree with Dr Baker the applicant is in need of more intensive psychiatric, psychological and substance abuse treatment and in this context, her whole person impairment is likely to change by more than 3% whole person impairment in the next twelve months, and her condition has thus not stabilised. Ms Dunn was able to participate in a lengthy psychiatric evaluation without the need for a break or interruption. She only occasionally needed a question repeated. In this context, it is the evaluator's opinion concentration deficits would not be obvious during brief conversation. Her concentration deficits would not prevent her from living independently. In this context, her assessment of Concentration, persistence and pace would be more consistent with a moderate impairment at the current time.
…
Dr Selwyn Smith noted in a letter, dated 11 December 2020, the applicant suffered an
Adjustment Disorder with mixed depressive and anxious mood that was chronic in duration
as a result of the demeaning bullying and harassment behaviour incurred during her
employment with Novacare. He opined, “Unfortunately, Deborah has not significantly
improved. I regard her psychiatric condition has stabilised”. He requested the insurer
approve a further six sessions.”

Discussion

The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Maximum Medical Improvement

Part 1.6 of the Guidelines sets out the key principals of assessment:
"a. Assessing permanent impairment involves clinical assessment of the
claimant as they present on the day of assessment taking account the
claimant 's relevant medical history and all available relevant medical
information to determine;
·whether the condition has reached Maximum Medical Improvement (MMI)
·whether the claimant's compensable injury/condition has resulted in
impairment
·whether the resultant impairment is permanent
·the degree of permanent impairment that results from the injury
·the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these guidelines
b. Assessors are required to exercise their clinical judgement in determining
a diagnosis when assessing permanent impairment and making deductions
for pre-existing injuries/conditions
c In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deduction for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If in an unusual situation, a related injury/condition has not previously been identified, an
assessor should record the nature of any previously unidentified injury/condition in their report and specify the casual connection to the relevant compensable injury or medical condition.
d. The referral for an assessment of permanent impairment is to make clear
to the assessor the injury or medical condition for which an assessment is
sought… "
Paragraph 1.15. of the Guidelines provides:
“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 workers condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”

Paragraph 1.16 of the Guidelines provides:
“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."
In her supplementary statement dated 11 November 2020, Ms Dunn wrote:
“4.     I have attempted several times to chase up the approval for treatment with
Dr Selwyn Smith but the insurer has not approved that appointment. On 23 September 2020 I emailed my solicitor as to the insurer still not approving this treatment.
5.     I have not seen Dr Ranasinghe for months now Dr Ranasinghe was not providing any treatment apart from a 15 minute visit where I would t asked a few questions and that's it. In the reports I have seen by Dr Ranasinghe the facts an not correct as to what I told him or what was really happening with my psych condition.
6.     I did not request to see Ian Kilpatrick when my previous psychologist Stella Bowring said that she could not see my anymore.
7.     My rehab provider Mel Wears thought it would be helpful. I did not see
Mr Kilpatrick as I was away visiting my sick mother at the time and I really wanted to get to see another Psychiatrist anyway.
8.     On 26 October 2020 I had a medical appointment with my GP Dr Beattie at Blue Haven medical centre that the insurer had still not approved treatment with
Dr Smith and she rang the case worker Alex O'Connell whilst I was sitting in her room. Dr Beattie had the phone on conference (so I could hear it too) and had a discussion with Alex O'Connell.
9.     In that call Alex O'Connell said "If you send through the referral I will approve treatment today". Dr Beattie had her office send that referral to EML while I was still there.
10.    On 12 November 2020 I again contacted Burwood Hospital and they have informed me that the Insurer EML has still not approved treatment for me.
11.    I want to seek further treatment from Dr Smith but the insurer is declining to approve my treatment which they have not provided a reason for.”

In a supplementary statement, dated 29 June 2020, Ms Dunn said that she continued to take medications which she found only somewhat helpful. She stated that she continued to have counselling seeing a psychiatrist and a psychologist feeling that this helps when discussing issues with them but not on an ongoing basis. She said that “my alcohol consumption has gone from someone who rarely drank ever, to now a minimum of approximately six to ten large vodkas daily to help me cope with the situation my life has become”.
Ms Dunn in her statement dated 5 February 2021 wrote:
“I have now had a session with Dr Smith for treatment and he has advised that he would be agreeable to providing future treatment. However, this will depend upon the insurer EML approving treatment to which they have been reluctant to approve yet”.
Dr Ashwindwe Anand, in a report dated 9 January 2020, made a diagnosis of adjustment disorder with mixed anxiety and depressed mood and an alcohol use disorder. He expressed the view that Ms Dunn’s condition had reached maximum medical improvement and assessed 9% WPI.
However, in a report dated 24 December 2020, Dr Anand considered that Ms Dunn’s condition had resolved, and she had the capacity to engage with a rehabilitation provider and begin a trial of return to work in a graded fashion with an alternative employer.
Dr Baker, in a report, dated 30 August 2020, diagnosed Persistent Depressive Disorder with persistent Major Depressive Disorder. He noted that Ms Dunn reported she rarely drank alcohol. He noted that during the period between his two reports, the first being dated 7 December 2018, Ms Dunn had become more depressed and hopeless, and her mental state had become more disabling.
Dr Baker wrote:
“Ms Dunn reported that she had been prescribed Venlafaxine at a dose of 225 mg daily in combination with Mirtazapine 15 mg nocte. She had been treated by Ms Stella Bowring, a clinical psychologist and Dr Ranasinghe, consultant psychiatrist. She had insufficient funds to continue treatment with her psychologist and last attended in November 2019. She also had insufficient funds to continue attending her consultant psychiatrist. She last attended in December 2019. Due to the prolonged nature of Ms Dunn's depressive disorder using combination antidepressant pharmacotherapy, it is in her best interests to continue psychiatric treatment. During 2020 Ms Dunn was attending her general practitioner, Dr Beattie once every 1 -2 months.
Due to the prolonged nature of Ms Dunn's depressive disorder and that she is using combination antidepressant pharmacotherapy, it is in her best interest to continue psychiatric treatment. During 2020 Ms Dunn was only attending her general practitioner, Dr Beattie once every, one to two months. In my medical opinion this treatment is insufficient and likely to result in future deterioration in Ms Dunn's mental state.
During the period between my two reports Ms Dunn had become more depressed and hopeless. She had persistently suffered from a depressed mood. Her major depressive disorder remained unabated. She was hopeless and felt that treatment was not successful as an outpatient. As documented in my original report, in my medical opinion, Ms Dunn required further medical treatment. Her mental state has become more disabling. Her clinical condition indicated that she had reached maximum medical improvement. She would benefit from inpatient psychiatric treatment of her depressed mood. She has not had access to all of the current and available psychiatric treatments. In particular, she has not had access to currently available physical psychiatric treatments such as TMS (Transcranial Magnetic Stimulation) and ECT (Electroconvulsive Therapy) or tDCS. These treatments can be given in accordance with RANZCP Guidelines.
Ms Dunn also requires ongoing prescribed pharmacotherapy. The use of these medications would require a consultant psychiatrist skilled in psychopharmacology and cognitive behavioural therapies as well as supportive management. This could be provided either as an inpatient or outpatient. Should her condition deteriorate she will require inpatient psychiatric treatment in the future. She also requires ongoing psychological treatment provided by a psychologist at a frequency of one session per fortnight as well as fortnightly to monthly monitoring of her mental state by her local medical practitioner”.
Dr Baker opined: “As documented in my original report, in my medical opinion, Ms Dunn requires further medical treatment. Her mental state has become more disabling. She now is in need of inpatient psychiatric treatment for stabilisation of her depressed mood”. He recommended various treatment options.
In a separate report, also dated 30 August 2020, Dr Baker assessed a WPI of 22%. Dr Baker noted:
“Should Ms Dunn not receive this minimum necessary psychiatric treatment, her mental state and work-related injury is likely to become more severe. The longer
Ms Dunn suffers from psychiatric symptoms the more likely she will never enter full remission from her work related injury.”
In a report dated 11 December 2020, Dr Selwyn Smith wrote:
“I have reviewed Deborah's current status and in my opinion she continues to demonstrate clear and convincing symptomatologies of an Adjustment Disorder with Mixed Depressed and anxious mood that is chronic in duration. …Unfortunately Deborah has not significantly improved. I regard her psychiatric condition as stabilised. She does however continue to require ongoing psychiatric and psychological support along current lines. I would be pleased to assist Deborah in that regard and would be grateful if her insurer would support her in attending at my Burwood Rooms for a further six to eight sessions in accordance with the recommended schedule of fees of the Australian Medical Association.”
Dr Selwyn Smith in a report dated 19 November 2020 noted that Ms Dunn stated that as a method of coping with her symptomatologies, she began to resort to increasing consumption of alcohol. He reported that at the time of his examination, she was consuming six vodkas per day. Dr Selwyn Smith noted that Ms Dunn had recurrent thoughts of self harm. He expressed the view that her condition had reached maximum medical improvement, and her injuries had become well-settled or static with or without treatment and were unlikely to remit despite treatment.
Dr Ranasinghe noted, in a letter dated 16 June 2020, that Ms Dunn’s sleep was fluctuating and her mood was up and down, at times being anxious. He reported that she was not going out much, was affected by COVID-19, and was drinking “a few days a week”. Under Impression, it was noted “stable mental state”. It was recommended she continue medication, increase her activities and safe drinking levels were discussed.
In a referral 13 July 2020 to Mr Ian Kilpatrick, psychologist, Dr Beatie noted that Mrs Dunn was previously under the care of Stella Bowring but she felt Ms Dunn would benefit from a different approach from another psychologist.
Dr Beattie noted in a letter dated 17 September 2020, she was referring Ms Dunn to
Dr Smith in the context of workplace stress causing an Adjustment Disorder. Dr Beattie was noted Ms Dunn had seen a psychiatrist in the previous two years and did not feel that she had improved.
Ms Dunn submitted that the MA made his assessment on incorrect criteria on the basis the MA had not examined Ms Dunn in line with the Guidelines and, in particular, in relation to the assessment of whether she had reached MMI. The Appeal Panel was satisfied that the MA examined Ms Dunn in accordance with the Guidelines. The Appeal Panel considered that the MA did not determine the outcome of the question of whether Ms Dunn had reached MMI merely on the basis of several comments made during the SKYPE assessment, but only did so after consideration of all the material before him as well as his findings in the examination. While the MA did not agree with the views of Dr Baker and Dr Selwyn Smith as to whether Ms Dunn was at MMI, this was merely a difference in clinical opinion, and both were of the opinion she required further treatment. The MA provided clear reasons as to why there was a difference in opinion, including her confirmation she was deteriorating and also referred to parts of their reports that could be seen as supporting his conclusion that
Ms Dunn was not at MMI.
The Appeal Panel was satisfied that there was sufficient evidence for the MA to come to the view that Ms Dunn was not at MMI. In her statement dated 5 February 2021, Ms Dunn was waiting for the insurer to approve further treatment with Dr Selwyn Smith. However, it appears that there has been little if any further psychiatric and psychological treatment despite recommendations that treatment continue. Dr Baker on 30 August 2020 expressed the view that Ms Dunn’s condition had worsened since he first saw her and could become more severe if she did not receive necessary psychiatric treatment. There was also evidence of an emerging alcohol abuse disorder and the MA considered that it was imperative that
Ms Dunn get both mental health and substance abuse treatment.
The Appeal Panel agreed with the MA that Ms Dunn’s WPI is likely to change by more than 3% whole person impairment in the next 12 months, and her condition has thus not stabilised or reached maximum medical improvement.
Ms Dunn submitted that the MA made a demonstrable error in that there were no grounds for the finding that Ms Dunn’s psychological condition has either worsened or that she was suffering “an onset of persistent suicidal ideation - over the last six months".
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC. No error was apparent on the face of the MAC. There was information and material that supported the findings made by the MA. Dr Selwyn noted in his report dated 19 November 2020 that
Ms Dunn had recurrent thoughts of self harm. The MA reported that Ms Dunn had persistent passive suicidal ideation over the last six months.
In conclusion the Appeal Panel found no error in the MAC nor any application of incorrect criteria.
The Appeal Panel did consider that if Ms Dunn has changed her views and does not now intend to undergo further treatment, contrary to what was expressed in her statement dated 5 February 2021 and what was said by her to the MA, then a new statement should be prepared to that effect and a request for further assessment by the MA be made.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 March 2021 by the MA should be confirmed.

[2021] NSWPICMP 231

6 December 2021