Leo v State of New South Wales (NSW Police Force)
[2023] NSWPICMP 619
•28 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Leo v State of New South Wales (NSW Police Force) [2023] NSWPICMP 619 |
APPELLANT: | Dean Leo |
RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 28 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS); worker said that Medical Assessor (MA) should have had regard to his statement; careful reading of the statement showed it was out of date when signed and did not take account of significant improvement shown in recent reports; MA took appropriate history and had regard to improvement; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 September 2023 Dean Leo lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 August 2023.
Mr Leo relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Leo suffered a psychological injury in the course of his employment as a police officer. The injury is deemed to have occurred on 20 December 2020.
The Medical Assessor diagnosed anxiety and depression and post-traumatic stress disorder. Using the Psychiatric Impairment Rating Scale (PIRS), he assessed 7% whole person impairment. The Medical Assessor assessed Mr Leo in class 1 for self-care and personal hygiene, class 2 for social and recreational activities, travel and concentration, persistence and pace, class 3 for social functioning and class 4 for employability. He allowed 2% for the effect of treatment, resulting in a total assessment of 9%.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Leo to undergo a further medical examination because the assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement. There is sufficient material in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary, Mr Leo submitted that the Medical Assessor erred in failing to adequately report the full extent of the symptoms he suffered. He challenged the assessments for self-care and personal hygiene, social and recreational activities, travel and concentration, persistence and pace, being those tables under which the Medical Assessor assessed no impairment or a mild impairment. In each of those categories, Mr Leo contrasted the history taken by the Medical Assessor with his statement and said that the Medical Assessor had not recorded the history correctly.
In reply, the Police Force submitted that the Medical Assessor did not err in his assessment.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
The MAC
The Medical Assessor set out the history he obtained from Mr Leo. He noted the past and present treatment, including successful treatment for an alcohol use disorder. With respect to Mr Leo’s present symptoms he said:
“Mr Leo reported that 2023 has been better, but his psychological health still fluctuates. He has good and bad days and in the last six months, he said he has had more good days than bad. On a bad day, he does not want to leave home and finds it hard to get up and do things. On good days, and he stated some days are really good, he said that he will go surfing, and drives without any problem.
He reported that his memory has definitely diminished, and on good days his concentration is pretty good and he can read books well. He also listens to audiobooks. He said he used to use alcohol to suppress his memory and thoughts, but now he is not drinking and is a lot better for it.
He reported having many triggers, such as sudden ringing tones of the telephone, sirens, seeing police cars, any trauma on TV or in movies, and he avoids watching the news for that reason. He said some of it is better now because he can drive near a police station now and he could not before.
He has at times reduced enjoyment and motivation…
He has panic attack-like symptoms.
Irritability has improved but he is still paranoid and hypervigilant.
He avoids social situations due to his anxieties and this has improved, especially with his family and relatives, and his close friends…”
The Medical Assessor set out Mr Leo’s social activities and activities of daily living:
“Mr Leo is living on his own. He has two children, aged 10 and 8, and has custody on a weekend every two weeks.
He has always been a surfer and likes to swim. Recently, he would surf for half an hour to two hours, a couple of times a week, and will go swimming maybe once or twice a week.
He recently moved and has established a veggie patch in his new place. He is close to his siblings and family. He sees them a couple of times a week. He talks to his uncle, auntie and other relatives maybe a couple of days a week as well. They regularly get together for family events and birthdays.
He said he lost a lot of friends because they were in the police. He mainly has two friends now and maybe talks to them once a week. Sometimes, if a friend is free, they will surf together.
He does the household chores and makes the bed every day.
Mr Leo related an incident recently that a reporter from the Daily Mail approached him and his children in a shopping centre, and wanted to ask him about something that happened in the police. He felt really defensive and angry and said that this man got into his personal space, but luckily, he did not react to it.
After his divorce, he tried dating a couple of times, but realised that he was not ready and the relationships did not continue.”
The Medical Assessor recorded his findings on examination:
“Mr Leo had long hair and a neatly maintained moustache, with a surfie appearance.
He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements.
He was mildly restricted in his affect range and reactivity. He smiled and laughed intermittently. He spoke spontaneously. He was not thought disordered. Mr Leo provided a clear history and elaborated on various aspects of his history. He was consistently focused throughout the assessment. He did not perseverate and spoke with a steady pace.
At the end of the assessment, I asked Mr Leo for additional information that he thought may be relevant and he discussed he put a lot effort in, and has become a better person and recognizes he needs to continue to work on his psychological health and discussed the moral issues working in the police and being laughed at by the police hierarchy.”
When commenting on the material in the file the Medical Assessor said:
“Mr Leo’s statement noted several work-related injuries affecting his knee and back. He started having depressive symptoms in around 2003. He previously had a happy and calm disposition and strong mental fortitude. He described many issues with work and trauma, related to hostage and counterterrorism, and bullying and harassment by the police management. He suffered panic attacks and listed his other symptoms. He tried to return to work but struggled due to his psychological health. He described treatment and discussed psychiatric difficulties in relation to the PIRS categories.
Comment: I noted his described functioning in the last six months has further improved.
Dr Richa Rastogi, 31 August 2021 report. She noted a similar history leading to his work injury. She provided a WPI and the ratings came to 20%.
Comment:
I noted that Mr Leo's treatment was different at that time and that the level of functioning was different - Dr Rastogi’s report is clearly outdated.
…
Susan Wojciechowski provided a psychologist’s report on 1 February 2021 and noted a very high DASS and alcohol checklist, and PTSD checklist. Mr Leo's prognosis was unknown at the time. There were regular handwritten entries from 2020 relating to stress with work and also with the Family Court in March 2021 as well.
…
Susan’s psychologist report, 13 October 2022, noted considerable improvement compared to previous testing and not having used alcohol for 12 months. Family Court litigation was a key factor perpetuating trauma and mood disorder and now he has been granted access on a regular basis.”
Mr Leo’s statement
The Medical Assessor noted that Mr Leo’s condition had improved from the history recorded in the medical reports in the file, many of which are dated in 2021. Though Mr Leo’s statement is dated 23 April 2023, a careful reading shows that it was not current as at that date, suggesting it had been prepared some time before and signed on the date it bears.
Mr Leo said:[2]
“Throughout 2020 to date, I continue to suffer from severe psychological symptoms including anxiety, panic attacks, depression, and triggers. Most days, I am extremely anxious and cannot bear to go further than down the street to the shops. I am so terrified of exposing myself to triggers like a police car, loud noises, or any form of confrontation, that I tend to stay at home and avoid people. I have become reclusive.”
[2] At [32].
He said:[3]
“My current treatment plan includes me attending consultations with my General Practitioner, Dr Mark Jones on a regular basis. I also consult with my Psychologist, Susan, on a weekly basis and my Psychiatrist, Dr Anthony Mason, on a fortnightly basis. In or around April 2022, I will be undergoing another hospital stay at St John of God. Following this, I will be undergoing TMS treatment every day for five weeks with Dr Jones. I have conducted EMDR therapy with my psychologist which I have responded to well. I have been prescribed CBD/THC oil for my insomnia, pain and panic attacks which has greatly helped with my PTSD.” (emphasis added)
[3] At [38].
The statement was prepared by reference to the PIRS and with respect to social and recreational activities, Mr Leo said:
“Since my psychological injury, I now no longer enjoy doing the social and recreational activities I once loved. My low moods and lack of motivation have stopped me from attending or hosting any social outings with my friends. I feel extremely paranoid when leaving my house and find it easier to avoid going out as much as possible and avoid interacting with others. I prefer to stay at home now and have become withdrawn and quiet.”
The statement made no reference to Mr Leo’s Family Court litigation.
Medical evidence
The reports in the Application to Resolve a Dispute are dated 2021 and before. The notes of Mr Leo’s psychologist, Ms Wojciechowski, end in April 2021 and those from his psychiatrist, Dr Mason, end in March 2021. His general practitioner’s notes are current to April 2021.
Mr Leo’s permanent impairment claim was based on an examination by Dr Rastogi on 31 August 2021, only six months after he had begun to consult Dr Mason. Her diagnosis was post-traumatic stress disorder with anxiety and alcohol abuse disorder. Despite recommending treatment, she considered that Mr Leo had reached maximum medical improvement. Dr Rastogi’s assessment in class 3 for social functioning was based on the history that Mr Leo had no custody of his children and was going through an acrimonious separation. Dr Rastogi’s report is the most recent medical information in the Application to Resolve a Dispute. It was prepared two years before the MAC and the Medical Assessor observed it was outdated.
By contrast, the Reply contains more recent material, evidencing the improvement that the Medical Assessor perceived.
In January 2022, Dr Sidorov saw Mr Leo for the second time on behalf of the Police Force, having previously seen him in March 2021. Dr Sidorov diagnosed anxiety and depression but did not consider that Mr Leo continued to meet the diagnostic criteria for post-traumatic stress disorder. He considered that Mr Leo’s mental state had shown moderate improvement since 2021 and that his condition was gradually resolving. He considered that further treatment was required and did not assess WPI because maximum medical improvement had not been reached.
Mr Leo attended the Trauma Recovery Program at St John of God Hospital in March and April 2022. The termination report prepared by a psychologist noted that he had demonstrated marked improvement in reactivity to trauma related material and significant reductions in the distress associated with his primary trauma. She said that he “reported an improved understanding of his behaviour patterns, and a greater sense of direction regarding his future treatment.”
Ms Wojciechowski said on 4 May 2022 that Mr Leo was undergoing EMDR[4] treatment “and is progressing well. He is highly motivated to complete treatment which augurs well for his recovery.” She said that the prognosis was unknown, noting that the trauma related to Mr Leo’s duties and to conflict in his relationship, leading to proceedings in the Family Court.
[4] Eye Movement Desensitisation and Reprocessing treatment.
In October 2022 Ms Wojciechowski noted a considerable improvement in test results and that Mr Leo’s alcohol use disorder was in sustained remission. She said:
“There have been a number of changes in Mr Leo’s legal issues in relation to his children. Currently has not been granted access by the Family Court to his sons on a regular basis. Family Court litigation was a key factor in perpetuating is trauma symptoms and mood disorder.
Mr Leo is now keen to resume EMDR in relation to work-related traumas and believes this has been helpful in reducing his symptoms to the more manageable level which has now been achieved.”
Ms Wojciechowski also noted that Mr Leo exercised regularly and engaged in appropriate leisure activities.
The Reply contains a report from Dr Mason dated 17 November 2022 in which he said that Mr Leo’s mood had definitely lifted and:
“He is now surfing every day, much more positive, interacting socially and things have improved significantly from a year ago.”
On 19 December 2022 Ms Wojciechowski said:
“Mr Leo is currently undertaking EMDR to address his PTSD symptoms associated with his work with NSW Police. Mr Leo believes that this assisting him and complements the program undertaking at St John of God in Richmond during his inpatient stays.
Mr Leo is finally reconnecting with his children following attempts by his ex-partner to prevent any contact. Both Mr Leo and his entire family were targeted for denigration and so this reconnection was important as a major factor in Mr Leo’s recovery. The relationship breakdown occurred as a result of his work with NSW Police.”
Conduct of the examination
The Medical Assessor was required to assess Mr Leo as he presented on the day of the examination,[5] taking his own history.[6] The MAC shows that the Medical Assessor took a careful history and that his observations were consistent with the improvement in Mr Leo’s condition noted in the more recent medical evidence. He specifically referred to Mr Leo’s statement and noted that his “described functioning in the last six months has further improved.” The Medical Assessor referred to Ms Wojciechowski’s report dated 13 October 2022 and to the improvement in Mr Leo’s condition since the Family Court granted access by his children on a regular basis.
[5] Guidelines paragraph 1.6
[6] Guidelines paragraph 1.47.
The alleged failure to take account of the matters described in Mr Leo’s statement is not a demonstrable error because a demonstrable error is evident on the face of the MAC. In Pitsonas v Registrar of the Workers Compensation Commission and Anor Mason P said:[7]
“I am therefore driven to conclude that s327(3)(d) uses ‘contained’ in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission[2006] NSWSC 939 at [39] (‘an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment’.)” (Emphasis in original.)
[7] At [49].
Mason P said:[8]
“Those [matters complained about] 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.”
[8] At [59].
The submissions prepared for Mr Leo contain a number of matters which are not supported by evidence. Mr Leo said that the Medical Assessor did not ask many questions or elicit much information as to each table of the PIRS. That is not a submission but an attempt to give evidence as to what took place at the examination, which is not admissible in a medical appeal.
In Lukacevic v Coates Hire Operations Pty Limited[9], Hodgson JA said:
“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.”[10]
[9] [2011] NSWCA 112.
[10] At [78].
Handley JA said:[11]
“The Panel's reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.”
Assessment under the PIRS
[11] At [100].
For each of the PIRS tables which are the subject of the appeal, Mr Leo submitted that an assessment of moderate impairment in class 3 was “more consistent” with his impairment. That submission does not necessarily disclose error.
As Campbell J said in Ferguson v State of New South Wales[12] (Ferguson), intervention by an Appeal Panel is only justified if the assessment under the tables of the PIRS is “glaringly improbable”:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[12] [2017] NSWSC 887 at [24]-[25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[13]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[13] [2018] NSWSC 140 at [70]-[71].
Mr Leo perceived that the Medical Assessor did not ask questions to elicit information as to each category. The MAC shows, however that the Medical Assessor took a detailed history as to his present symptoms and his social activities and activities of daily living. The material relied on in the PIRS table is contained in that history.
Self care and personal hygiene
Mr Leo sought to rely on his statement to prove error. As set out above, the material in the statement was out of date when it was signed. For the reasons set out above, the matters described as “current functioning” were not current. The contention that Mr Leo’s appearance is vastly different to when he was in the Police Force does not appear in the statement signed in April 2023 nor does a different appearance when no longer a police officer necessarily connote a lack of self care. The Medical Assessor noted, for example, that Mr Leo’s moustache was neatly trimmed.
The Medical Assessor assessed Mr Leo in class 1 saying:
“Mr Leo eats regularly and showers daily without prompting. He has a healthy diet and successfully lost weight in 2023. He exercises regularly now. There is no deficit or minor deficit, attributable to the normal variation in the general population.”
The Medical Assessor acknowledged that Mr Leo has good and bad days but the history on which he relied is consistent with the improvement described in the more recent medical reports. The assessment was open to the Medical Assessor in the exercise of his clinical judgement.
Social and recreational activities
The Medical Assessor assessed Mr Leo in class 2, summarising his reasons:
“He attends regular social recreational activities with his family and friends. Overall, he has been attending less since his injury. He enjoys socializing with his siblings and relatives, generally weekly and attends family parties.”
The Medical Assessor noted an improvement in Mr Leo’s condition in the last six months which is consistent with the reports from his treating doctors in the Reply. In particular is Dr Mason noted on 17 November 2022 that Mr Leo was surfing every day, which is even more frequent than the history the Medical Assessor obtained.
Again, Mr Leo sought to dispute the assessment and to provide evidence in his submissions. He did not make any substantive submissions as to any error made by the Medical Assessor. For the reasons set out above, we must disregard the information which seeks to clarify the matters recorded by the Medical Assessor.
Based on the history the Medical Assessor obtained, the assessment in class 2 was open to him.
Travel
The Medical Assessor assessed Mr Leo in class 2 and said:
“He drives on his own without problem and avoids certain places, e.g. police stations and associated locations.”
The submissions made for Mr Leo are limited to contrasting his statement with the Medical Assessor’s findings. They fail to take account of the improvement noted by the Medical Assessor and Mr Leo’s treating practitioners.
The assessment made by the Medical Assessor was open to him on the history he obtained.
Concentration, persistence and pace
The Medical Assessor assessed Mr Leo in class 2 and said:
“Mr Leo reported having reduced concentration. He has there are good and bad days, and more good days each week in 2023. He can focus on reading books and novels, for 1-2 hours.
His mental state examination is consistent with 2.”
The Medical Assessor’s reference to Mr Leo’s mental state examination is relevant. Many of the PIRS tables are assessed on the basis of the history which a worker gives. It is important to remember that the examination provides a Medical Assessor with an opportunity to assess a worker’s ability to concentrate and to persist in maintaining concentration for the duration of the interview as well as to assess the pace at which a worker responds to the questions asked.
The only submissions made for Mr Leo contrasted the assessment with his statement. The assessment made by the Medical Assessor was open to him, particularly noting his reference to his observations on examination.
For these reasons, we have determined that the MAC issued on 18 August 2023 should be confirmed.
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