Egan v Secretary (Department of Communities and Justice)

[2022] NSWPICMP 336

DETERMINATION OF APPEAL PANEL
CITATION:	Egan v Secretary (Department of Communities and Justice) [2022] NSWPICMP 336
APPELLANT:	Anthony John Egan
RESPONDENT:	Secretary, Department of Communities and Justice
Appeal Panel
MEMBER:	Brett Batchelor
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Patrick Morris
DATE OF DECISION:	22 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal by worker in respect of Medical Assessment Certificate (MAC) issued on the grounds of conflict of interest and apprehension of bias on the part of the Medical Assessor (MA) who examined the worker and issued the MAC; the MA was a Visiting Medical Officer, for at least part of the time, at the establishment where the worker was employed, knew some of the executive staff including the Governor, and made known this information to the worker during the course of the examination; the worker had a poor relationship with the Governor, and had made complaints about her during the course of his employment, which were recorded in the MAC; the worker also took issue with four of the Permanent Impairment Rating Scale (PIRS) assessments by the MA; the Appeal Panel admitted fresh evidence, in the form of a statutory declaration by the worker and the curriculum vitae of the MA which confirmed his engagement at the establishment where the worker was employed; Held – the Appeal Panel determined that the worker should be examined by a MA member of the Panel; the MAC was revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 13 January 2022 Anthony John Egan (the appellant/Mr Egan) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr XX, a Medical Assessor (the MA/Dr XX), who issued a Medical Assessment Certificate (MAC) on 16 December 2021.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);

   ·        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 (the Panel) has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.

4. 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 the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed.

RELEVANT FACTUAL BACKGROUND

1. The appellant sustained psychological injury arising out of or in the course of his employment as a prison officer by the respondent. Mr Egan attributed his psychiatric decline to a combination of the accumulation of adverse circumstances with which he was confronted in the workplace, compounded by death threats from inmates. Detail of the events that led him to cease work in May 2019 are set out at [4] of the MAC under “HISTORY RELATING TO THE INJURY”[1], and it is not necessary to repeat them. The MA found that the history presented by Mr Egan reflected the development of post-traumatic stress disorder consequent upon traumatic circumstances to which he was exposed in the course of his work as a prison officer. The appellant also reported the development of major depressive disorder, a condition according to the MA which often occurs in concert with post-traumatic stress disorder. The nature and severity of the depressive symptomatology was such that it could not be explained as a manifestation of post-traumatic stress disorder, but rather represents a separate diagnosis.

   [1] Appeal Papers (AP) p 22.

2. The MA assessed the appellant as having sustained 8% whole person impairment (WPI) as a result of injury on 22 May 2019. Mr Egan appeals this assessment.

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.

2. As a result of that preliminary review the Panel on 12 April 2022 issued the following Notation and Direction:

   “Notation

   The Medical Appeal Panel notes the applicant’s submissions dated 12 January 2022 that as a result of the Medical Assessor, Dr XX, being a Senior Visiting Medical Officer in psychiatry at Justice Health and a visiting psychiatrist at Long Bay Correctional Centre, and what occurred at the medical examination of the applicant by Dr XX on 2 December 2021, there may be a conflict of interest on the part of
   Dr XX and a perception of apprehended bias on his part. The Appeal Panel also notes the respondent’s submissions dated 9 February 2022.

   The Commission directs:

   1. The applicant is to lodge and serve by 2 May 2022 a statutory declaration in respect of the factual matters asserted by him in his submissions dated 12 January 2022 to give rise to a conflict of interest and perception of apprehended bias on the part of the Medical Assessor, Dr XX, in his examination of the applicant on 2 December 2021 and provision of the Medical Assessment Certificate dated 16 December 2021.

   2. The matter will be further considered by the Medical Appeal Panel after 2 May 2022.”

3. The appellant lodged with the Commission a statutory declaration dated 29 April 2022.

4. The Panel further reviewed the matter, and on 6 May 2022 directed that the appellant should submit himself for clinical examination by a Member of the Panel, Professor Nicholas Glozier.

Fresh evidence

1. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional 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.

2. The appellant seeks admission of the following evidence:

   (a)    statutory declaration of the appellant dated 29 April 2022, and

   (b)    curriculum vitae of Dr XX.

3. The appellant submits that the evidence is relevant to his first appeal ground, that the examination of him carried out by Dr XX gave rise to a conflict of interest and a perception of bias on the part of the doctor. During the course of Dr XX’s examination,
   Mr Egan claims that the doctor said that, due to the fact that he worked at Long Bay Gaol as a psychiatrist during the time that Mr Egan was employed there, “some may see it as a conflict of interest”. Mr Egan claims that Dr XX also said that he knew some of the executive staff at the gaol, including Tracey Mannix, the former Governor. This revelation was of concern to the appellant as he had previously made complaints about Ms Mannix. Further, the entry in the MAC that “Mr Egan attributed his relocation to Long Bay prison hospital to his poor relationship with Tracey Mannix” corroborates his concerns.

4. The appellant notes that a “Summary Curriculum Vitae” of Dr XX obtained from the internet contains the following statement “Dr XX is a Senior Visiting Medical Officer in psychiatry at Justice Health and is a visiting psychiatrist at Long Bay Correctional Centre”. (emphasis in submissions)

5. The appellant submits that the foregoing circumstances would give rise to a real apprehension by the appellant that the examination may not have been undertaken in a purely objective manner. This is of particular concern and relevance in respect of an examination of a psychiatric condition.

6. The appellant submits that the circumstances of the examination give rise to a reasonable perception that the disclosures of Dr XX raise the prospect of apprehended bias in the medical examination. The appellant submits that a “fair minded lay observer” would have concern in respect of the disclosures made by Dr XX, in particular the comment he made that “some may see it as a conflict of interest”.

7. The appellant refers to what is stated by McClellan CJ at CL in Pollard v Wilson[2] that:

   “The test which must be applied in Australia to determine whether a judge is disqualified for the appearance of bias (the apprehension of bias principle) is whether a ‘fair-minded lay observer’ might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (“Johnson”) and the authorities cited therein.”

   [2] (2010) NSWCA 68 at [93].

8. The appellant refers to references in the MAC of interchanges between himself and Tracey Mannix in respect of return to work after previous absences on workers compensation, and submits that a fair minded observer would envisage that the professional relationship which Dr XX had with Tracey Mannix may well cause Dr XX not to bring an impartial and unprejudiced mind to the medical dispute.

9. The appellant submits that the evidence was not available and could not reasonably have been obtained because it concerned what took place at the medical assessment. The applicant also submits that the curriculum vitae of Dr XX should also be admitted into evidence.

10. The appellant submits that the appropriate course of action is for the Commission to revoke the MAC and have him examined by a MA who is a member of the Panel.

11. The respondent submits that it is not in a position to respond to the submissions that are made by the appellant in this regard, given that it was not present during the course of the examination with Dr XX. It is submitted that a response should be obtained from
    Dr XX relating to the allegations that have been put.

12. The Panel is of the view that, having regard to the nature of the issue raised by the appellant in his submissions and statutory declaration dated 29 April 2022, and to what the Court of Appeal said in Lukacevic v Coates Hire Operations Pty Ltd[3], referred to in the next paragraph hereof, it was not necessary to obtain a response from Dr XX.

    [3] [2011] NSWCA 112 (Lukacevic).

13. The issue of whether or not a statement by a worker taking issue with the manner in which an Approved Medical Specialist (now referred to as MA) conducted a medical examination should be admitted as new evidence pursuant to s 328(3) of the 1998 Act was considered by the Court of Appeal in Lukacevic. Hodgson JA, who agreed with Handley JA in holding that on the facts of that case such a statement should not be admitted, said at [75] - [78]:

    “75.   A certificate given by an approved medical specialist (AMS) must set out the reasons for the assessment and the facts on which the assessment is based: Workplace Injury Management and Workers Compensation Act 1998 ( WIM Act) s 325(2). These reasons and facts will necessarily include the history given by the worker to the AMS and the AMS's observations of the worker at the medical examination.

    76. Suppose that the worker disputes that the history set out in the certificate was the history he/she gave, and/or disputes the observations recorded in the certificate. If so, the assertions of the worker on those topics, if they concern a matter relevant to the correctness of the certificate, could qualify as additional relevant information not available or obtainable before the medical assessment, within s 327(3)(b) of the WIM Act, and thus give a ground of appeal.

    77.   An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.

    78.   A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”

14. The Panel is of the view that the evidence in the appellant’s statutory declaration dated
    29 April 2022, together with the curriculum vitae of Dr XX attached to his submissions, has substantial prima facie value in terms of its particularity and plausibility. Independent support is supplied by the curriculum vitae.

15. The Panel is of the view that, having regard to:

    (a)    the position of Dr XX as a visiting psychiatrist at Long Bay Correctional Centre at some of the time that the appellant was employed there;

    (b)    what Dr XX is claimed by the appellant to have said during the course of the medical examination, that is “…some may see this as a conflict of interest”, which in the circumstances the Panel finds has a ring of truth about it;

    (c)    Dr XX’s knowledge of some of the executive staff who worked at the gaol, including Tracey Mannix, the former Governor;

    (d)    the negative reactions with Tracey Mannix that the appellant refers to in his statutory declaration, and

    (e)    the reference to such negative reactions recorded in the History Relating to the Injury in the MAC,

    it accepts the appellant’s submissions that there was a conflict of interest in
    Dr XX carrying out the medical examination of the appellant for the purpose of production of the MAC. The Panel further finds that there was the appearance of bias in the doctor conducting such an examination and reporting thereon. Such perception of bias was made known to the appellant by Dr XX during the course of the medical examination.

16. The Appeal Panel determines that the following evidence should be received on the appeal:

    (a)    statutory declaration of the appellant dated 29 April 2022, and

    (b)    curriculum vitae of Dr XX.

EVIDENCE

Documentary evidence

1. 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. 

Further medical examination

1. Professor Nicholas Glozier, member of the Panel, conducted an examination of the worker on 10 August 2022 and reported to the Appeal Panel.

Medical Assessment Certificate

1. The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

Appellant

1. The appellant makes submissions in respect of errors claimed to have been made by the MA in his assessments of the psychiatric impairment rating scale (PIRS) categories of:

   (a)    self-care and personal hygiene;

   (b)    travel;

   (c)    social functioning, and

   (d)    concentration persistence and pace.

   in addition to those referred to above in support of the admission of fresh evidence. They are summarised as follows.

Self-care and personal hygiene

1. The appellant submits that he should be assessed in Class 3 for self-care and personal hygiene, moderate impairment rather than in Class 2, mild impairment. He notes the MA records that his partner encourages self-care and that he acknowledges the tendency to omit showers. The appellant also notes the recording by the MA of the support his partner gives to him and that she has become increasingly understanding of his condition. At [35] of his statement dated 30 September 2021[4] Mr Egan notes that his partner has to remind him to look after himself, to have a shower and undertake personal hygiene activities.

   [4] AP p 43.

2. The appellant therefore submits that Class 3 is the appropriate class.

Travel

1. The appellant notes that Dr Teoh, who independently medically examined and reported on him on 15 June 2021[5], assessed Class 2 for travel, mild impairment, as opposed to the classification on the MA, class 1, no deficit. The appellant submits that the fact that the MA states in the MAC in his assessment of social and recreational activities that he does not engage in social or recreational activities unaccompanied outside the home, is a compelling finding. This makes the finding of the MA of a nil deficit in relation to travel difficult to reconcile.

   [5] AP p 48.

Social functioning

1. The appellant submits that the classification in Class 2, mild impairment, is inadequate. The MA notes that Mr Egan has no social life and likes to be by himself with his partner. The MA also notes that he engages in socially isolative interests, goes on the internet, watches YouTube and plays games on his computer. These activities are, according to the appellant, consistent with a Class 3, moderate impairment for social functioning. Having regard to other matters such as:

   (a)    the fact that he sent his wife to the USA and at one point had planned to commit suicide, constituting evidence of a severely strained marital relationship;

   (b)    that he had become reclusive and finds himself doing very little, and

   (c)    that he has no friends yet talks to ex colleagues by phone which causes him to feel upset,

   the appellant submits that this constitutes moderate, Class 3, impairment.

Concentration persistence and pace

1. The appellant submits that the correct PIRS category for this item should be Class 3 rather than Class 2. He notes that the MA found that he was at times disorganised with respect to the temporal sequence of events that he was describing.

2. The appellant submits that, in respect of employability, the MA said that “The nature and severity of Mr Egan’s psychiatric condition is such that he is currently unemployable”.[6] That finding lends weight to the assertion that the appellant should be placed on Class 3, moderate impairment, in respect of concentration persistence and pace.

   [6] AP p 30.

3. The appellant notes that in respect of this PIRS category, the MA states in the MAC that “…his description of participation in household activities and recreational activities indicated mild psychiatric impairment arising independent of the effects of his stroke”. The appellant says that the MA appears to base his assessment of this category upon his findings in relation to household and recreational activities, and queries whether this is the correct approach in assessing independent criteria. The appellant submits that the MA found Class 3 for social and recreational activities, and if there is a correlation between the two categories, then it would be consistent to rate concentration persistence and pace the same as social and recreational activities, Class 3.

4. The appellant notes that in the MAC under “Social activities/ADL” the MA states that he (the appellant) edits photos and watches You Tube documentaries. The MA does not state for how long, or enquire of him how he manages his concentration at these activities.
   Dr Teoh in contrast assesses Class 3 for concentration persistence and pace which is more accurate and should be preferred.

Respondent

1. In reply, the respondent submits that the assessments that have been provided by the MA are accurate and that the onus is upon the applicant to establish in this instance that the MA has provided a medical assessment which either contains a demonstrable error or in which he has applied incorrect criteria.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[7] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[8]).

   [7] [2008] NSWCA 116.

   [8] [2013] NSWCA 1792.

2. 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.

3. The four categories (or scales) of PIRS in respect of which the appellant submits the MA has erroneously assessed him are referred to at [32]-[37] above. They are discussed as follows with reference to the findings of the Panel Member, Professor Glozier, whose report to the Panel dated 10 August 2022 is set out in full at [59] hereunder.

Self-care and personal hygiene

1. Dr Teoh in his report dated 15 June 2021 placed Mr Egan in Class 2, mild impairment, namely:

   “Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”

2. Notwithstanding this classification by Dr Teoh, the appellant submits that he should be placed in Class 3, moderate impairment, namely:

   “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.”

3. Dr Graham George independently medically assessed the applicant on 30 April 2019 and provided reports to the respondent’s insurer dated 5 May 2019[9] and 13 September 2021[10]. Dr George did not provide an assessment of WPI as he did not find that the appellant had achieved maximum medical improvement at the date of his examination in April 2019.
   Dr George did not examine Mr Egan before preparing his supplementary report dated
   

   [9] AP p 57.

   [10] AP p 65.

   13 September 2021, and was not therefore able to give an assessment of WPI.

4. Professor Glozier’s assessment of the appellant confirms the assessment of the MA, Class 2.

Travel

1. As noted above at [35], Dr Teoh assessed the appellant as Class 2 for travel, observing that “He has been able to travel on his own with some apprehension”. The MA assesses the appellant in Class 1, the full PIRS descriptor for which is:

   “No deficit, or minor deficit attributable to the normal variation in the general

   population: Can travel to new environments without supervision.”

2. Professor Glozier assesses Class 2 for travel based in his following comments:

   “In regards to Travel, he reported difficulties travelling to places where there will be crowds and thus goes there with his wife. He describes some problems concentrating and with intolerance whilst driving long distances such that he needs to be accompanied by his wife, indicative of a mild impairment.”

3. The PIRS descriptor for Class 2 is as follows:

   “Mild impairment: Can travel without support person, but only in a familiar area

   such as local shops, visiting a neighbour.”

4. The appellant in submissions uses the argument that, as the MA assessed him in Class 2 for social and recreational activities which is a compelling finding, that makes the MA’s opinion of a nil deficit in relation to travel difficult to reconcile. Although it may be academic as Professor Glozier has placed the appellant in Class 2 in accordance with Mr Egan’s submission, such reasoning may offend what was said at [94]-[95] in Ballas v Department of Education (State of NSW)[11]. That is, that conduct which is wrongly assigned to one scale (or category) when it should have been assigned to another, will result in the MA taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. The appellant appears to recognise this later when, in making submissions in respect of concentration persistence and pace, he queries whether it is the correct approach to base his assessment of that scale (category) on his finding in respect of household and recreational activities.

   [11] [2020] NSWCA 86 (Ballas).

5. Having said that, it is also apposite to also note that Basten JA in making obiter comments on Ballas at [72]-[73] in Lancaster v Foxtel Management Pty Ltd[12], described that reading of what the Court of Appeal held as “implausible”.

Social functioning

[12] [2022] NSWSC 929.

1. The appellant, in accordance with the finding of Dr Teoh, submits that the MA placing him in Class 2 for social functioning is inadequate, and that he should be placed in Class 3. Professor Glozier agrees with the classification of the MA in respect of this category, Class 2.

2. The descriptors for Classes 2 and 3 are as follows:

   Class 2

   “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”

   Class 3

   “Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”

Concentration persistence and pace

1. Professor Glozier assesses the appellant as being within Class 3, moderate impairment, in accordance with the appellant’s submission. The MA placed Mr Egan in Class 2.

2. The descriptors for Classes 2 and 3 are as follows:

   Class 2

   “Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops a headache.”

   Class 3

   “Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”

3. Professor Glozier’s comments in respect of this category are set out in full in his report to the Panel hereunder. Notably, he could not elicit the history of any of the appellant’s cognitive impairment being associated with a stroke. He said that the medical history would indicate that if there was a cerebrovascular event, it was so mild that it is not even deemed to require Aspirin or any other standard treatment of cardiovascular secondary prevention. Professor Glozier cannot understand how any of the appellant’s current persistence and pace deficits which currently indicate moderate impairment can be attributed to any cerebrovascular event.

4. The full Report of the Examination by Panel Member Professor Glozier dated 10 August 2020 is as follows:

“APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W4823/21
Appellant:	Anthony Egan
Respondent:	Secretary, Department of Communities & Justice
Date of Determination:	10 August 2022

Examination Conducted By:	Professor Nicholas Glozier
Date of Examination:	10 August 2022

1. The worker’s medical history, where it differs from previous records

Mr Egan was at pains to point out how aggrieved he felt that any cognitive impairment had been attributed to his ‘stroke/TIA.’ He said was already having concentration problems prior to this and that this cardiovascular event did not lead to any change in his cognition or any subsequent impairment. He noted that he had a cardiac monitor put in place but not a pacemaker or defibrillator. Furthermore he is not under follow-up by any neurologist or cardiologist and does not take any cardiometabolic medication, even any Aspirin. As such it is difficult to understand whether this was any significant cerebrovascular event and he reported no significant impairing sequelae or stepwise change as a result of this.

1. Additional history since the original Medical Assessment Certificate was performed

Clinically Mr Egan continues to consult Ms Azzopardi, a psychologist at Lighthouse. He says he would like to see her much more frequently than the monthly he does so, so that he could talk about his experiences at work but demand is so great he is unable to see her more regularly. He has not seen the psychiatrist, Dr Griskaitis, who recommended PTSD group treatment, for some two years since prior to COVID. He acknowledged that some of his treatment had ceased, e.g. the PTSD referral, because he is unvaccinated. He apparently has a further referral now. He continues to take fluoxetine 40mg daily prescribed by his GP. He does not see any other specialists or undertake any other physical or psychological/psychiatric treatment.

He continues to live with his long-term de facto partner. She lost her job as a cleaner because she is unvaccinated. His youngest son lives with them although he has little interaction with them and they just provide ‘a roof.’ Mr Egan described very similar symptoms to that described to the AMS and other doctors. He continues to have a variable mood, particularly being irritable rather than miserable, related to the degree of sleep he has had. He says he goes to bed late, around 1am, described onset insomnia, and broken sleep with repeated short awakenings, but being able to return to sleep afterwards. He wakes around 9:30am and thus gains a low/normal but broken sleep duration of poor quality. When he wakes up he makes himself a coffee and may get ready for the day, although as he does not leave the house most days he does not need to get dressed. He reported that there are no physical problems with his ability to do his teeth, brush his hair, get dressed etc. He has had a long-term poor diet, relating this to eating junk food and low-quality food whilst at work on shifts over years and this has continued. He reported not liking healthy food and that his weight has continued to increase, up to around 130kg with his reduced activity. Vicki has always done all the shopping, cooking and cleaning and he has maintained the outdoors of the home, doing the mowing, pool-cleaning etc. This continues but he described some intermittent difficulties with motivation for this.

In the morning he may go for a walk with his wife although does not do this as frequently as he would like to. He spends much of the day on the computer, playing first-person shoot-em-up games or watching documentaries on YouTube. He was able to describe some of these to me, e.g. the recent Timeline documentary and the presenter Tony Robinson although says that many of these he watches distractedly and may lose focus. He did do online gaming some time ago but says that he stopped as others said he was ‘too slow for their teams.’ He has intermittent contact with an old friend Dario, last going down to see him with Vicki a couple of months ago for some time on the waterfront at Wollongong. He has little contact with other officers and no other social interactions.

When out he prefers to be with Vicki as he finds being in crowds or social environments difficult. He says he is now a slower, more cautious, driver and described that when driving, and particularly with the caravan, he can feel this is affected his concentration. They drove up to Brisbane earlier in the year with the caravan, stopping at several places and also returned from a camping trip a few weeks ago into central New South Wales. He said that after a few days the temperature was so cold ( ‘minus 5.6º C’) that he ‘put an end to it’ because they had so few hours driving because of the temperature. As such he can drive reasonable distances with a caravan and described any need for accompaniment mainly to be due to the social problems that he encounters at the other end although says there are some concentration difficulties. They have not travelled any further, in large part due to COVID and their vaccination status.

Vicki continues to be ‘my only support’ and their relationship remains strong and supportive. He sees their children on a regular, if not frequent, basis as many live locally. He and Vicki had COVID last week and two of their sons came around, dropping off supplies, indicating significant support. The grandchildren are teenagers and so he sees them less frequently although went to their birthdays in June.

He used to enjoy photography and when he was away, took a few pictures but describes that he finds concentrating on downloading these/working on these at the computer hard and also some motivational difficulties with persisting with these.

He described little in the way of any remunerative activities and appears to be quite resentment of what happened in the prison service and also specifically resentful about what he saw as ‘a gross conflict of interest’ with the previous MA and also that these assessments do not enable him to spend long periods of time exploring what happened to him at work. I explained to him the particular process at the beginning of this assessment and why his work experiences is not a focus particularly of this Appeal Panel reassessment.

1. Findings on clinical examination

Mr Egan was assessed via Zoom. There were no technical difficulties. He was casually-dressed with a clipped beard and not unkempt although I could not see any more of him than that. He showed a somewhat restricted, slightly dysphoric and irritable affect although was polite and engaged with the assessment once I had explained the process. He described an intermittent low mood, reduced enjoyment but not complete anhedonia, difficulties with motivation, sleep disturbance as above, ongoing thoughts that he might be better off dead but no intent, avoidance of significant social interactions with heightened arousal, at times bordering on panic attacks which he heads off by leaving the situation. He can be hyperaware, oversensitive, sitting with his back to the walls, and is intolerant in a whole range of situations of people’s behaviour that he sees as rude, problematic or difficult for him. He describes nocturnal re-experiencing phenomena and distracting himself from significant rumination about his treatment at work although conversely also wanted to talk about this. He showed some nominative and mild memory difficulties during the assessment although this was variable.

1. Results of any additional investigations since the original Medical Assessment Certificate

No additional investigations.

Summary

Mr Egan’s presentation was very similar to that observed by the MA and he continues to meet the criteria for a Posttraumatic Stress Disorder having had Criterion A events and demonstrating symptoms in all four domains with associated impairment. Any associated Major Depressive Disorder is of borderline clinical significance as his symptoms can all be explicable by the PTSD. There is no substance abuse.

In terms of the categories of the Psychiatric Impairment Rating Scale ascertained by the MA, the history elicited in today’s examination confirms the categories of Self-Care and Personal Hygiene, Social and Recreational Activities, Social Functioning, and Employability. There is no evidence that Mr Egan cannot live independently; he describes being able to self-care, does the same activities around the home that he did pre-injury and his diet reflects a long-time poor diet although he has some motivational issues indicative of at most a mild impairment. He continues to be very well supported by his family, has a few friends although has lost many friends, again indicative of a class 2 in Social Functioning.

In regards to Travel, he reported difficulties travelling to places where there will be crowds and thus goes there with his wife. He describes some problems concentrating and with intolerance whilst driving long distances such that he needs to be accompanied by his wife, indicative of a mild impairment.

In terms of Concentration, Persistence and Pace, he describes motivational difficulties, particularly losing pace and focus, some of which were observable in the assessment today (as also noted by the MA) and which limit him in his documentary-watching and game-playing. I could not elicit the history of any of this cognitive impairment being associated with a stroke. The medical history would indicate that if there was a cerebrovascular event, it was so mild that it is not even deemed to require Aspirin or any other standard treatment of cardiovascular secondary prevention. I cannot understand how any of his current persistence and pace deficits which currently indicate a moderate impairment. can be attributable to any cerebrovascular event.

This results in classes of (in order) 2,3,2,2,3,5 which is a total of 17, median class 3, giving a 19% whole person psychiatric impairment. There is no evidence of a pre-existing condition or any substantial treatment effects. He himself thought that he was under-treated although it does not appear he is due for any more treatment in the near future and his impairment appears to be remarkably similar for the past two years, notwithstanding the effects of COVID.

Signed: 

Professor Nicholas Glozier

Date:     10 August 2022”

1. The Panel accepts the report of Professor Glozier and his assessment of WPI therein.

2. Professor Glozier has correctly calculated the degree of WPI based on his assessment of the appellant, in accordance with “Table 11.7: Conversion table” of the Guidelines. The finding of the Panel is that appellant has sustained 19% WPI as a result of injury on 22 May 2019.

3. For these reasons the Panel has determined that the MAC issued on 16 December 2021 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:	W4823/21
Applicant:	Anthony John Egan
Respondent:	Secretary, Department of Communities and Justice

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 Dr XX 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 NSW workers compensation guidelines	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)
1.      Psychiatric	22/05/19	Chapter 11, p 58, Table 11.7	19%	19%
Total % WPI (the Combined Table values of all sub-totals)					19%