Mansell v State of New South Wales (NSW Police Force)
[2022] NSWPICMP 394
•11 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mansell v State of New South Wales (NSW Police Force) [2022] NSWPICMP 394 |
| APPELLANT: | Joanne Mansell |
| RESPONDENT: | State of New South Wales |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr Nicholas Glozier |
| MEDICAL ASSESSOR: | Dr Michael Hong |
| DATE OF DECISION: | 11 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Assessment of permanent impairment from psychiatric injury; appellant contended that Medical Assessor’s (MA) rating of appellant’s impairment in Psychiatric Impairment Rating Scale categories of self-care and personal hygiene and travel did not take into account all relevant circumstances and were consequently wrong; Held – Appeal Panel considered MA’s ratings were open to MA on evidence and sufficiently explained; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 June 2022 Joanne Mansell, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 May 2022.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant worked as a computer systems officer for the New South Wales Police Force, Her last day of work was on 1 September 2020. On 2 October 2015 she heard an exchange of firearms associated with the murder of Curtis Chang. She observed his body and a significant number of police officers and ambulances attending the murder scene. As a consequence of this she suffered a psychiatric injury.
Her lawyer arranged for her to be examined by consultant psychiatrist Dr Selwyn Smith. In a report dated 3 May 2021 Dr Smith advised the appellant’s lawyer that he diagnosed the appellant had post-traumatic stress disorder that was chronic in duration, Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Alcohol Use Disorder that was also chronic in duration. Dr Smith advised that in his opinion there was a direct relationship between the appellant’s work and her psychiatric injury. He advised that he had assessed the appellant had 22% whole person impairment (WPI) as a result of her psychiatric injury.
On 15 July 2021 the appellant’s lawyer wrote to the State of New South Wales’ (the respondent) insurer advising it that the appellant claimed compensation from it of $54,820 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 22% WPI. The appellant’s lawyer provided the insurer a copy of Dr Smith’s report to support the appellant’s claim.
The respondent’s solicitor arranged for the appellant to be examined on 1 September 2021 by consultant psychiatrist and occupational physician Dr Naresh Verma. In a report of 14 September 2021 to the respondent’s solicitor Dr Verma advised his diagnosis of the appellant’s condition was post-traumatic stress disorder and Alcohol Use Disorder. The respondent’s solicitor had asked Dr Verma that if he considered the appellant’s condition had reached maximum medical improvement to assess her permanent impairment. Dr Verma advised that he considered that modifications to the appellant’s medications was needed and that the appellant should have alcohol counselling. Dr Verma advised that until that had occurred he did not consider the appellant had reached a maximum medical improvement. Hence, he did not assess her WPI.
The respondent’s solicitor subsequently requested Dr Verma to provide a supplementary report making an assessment of the appellant’s permanent impairment from her injury but based on his findings from his examination on 1 September 2021. In a report of 28 October 2021 Dr Verma advised that he assessed the appellant had 22% WPI, notwithstanding the appellant had not reached maximum medical improvement.
On 29 October 2021 the insurer wrote to the appellant, care of her lawyers, advising her that “to be eligible for a lump sum payment for whole person impairment resulting from your work place injury you must have reached maximum medical improvement”. It further advised that “as you have not reached maximum medical improvement, we are unable to assess your claim for whole person impairment at this stage”.
The appellant thereupon lodged with the Personal Injury Commission an Application to Resolve a Dispute (ARD) seeking determination of her claim for compensation. On 12 January 2022 a delegate of the President referred to Medical Assessor Andrews the following medical dispute between the parties:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
·the degree of permanent impairment of the worker as a result of an injury (s319(c))
·whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
·whether impairment is permanent (s319(f))
·whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 2 October 2015
Body part/s referred: Psychological
Method of assessment: Whole Person Impairment”
Medical Assessor Andrews conducted an examination of the appellant on 26 May 2022 and, as mentioned, issued a MAC on 27 May 2022. In that he certified that the appellant had 19% WPI from her injury.
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.
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. This is because the Appeal Panel came to the view that the grounds for appeal on which the appellant relied were not established and there was consequently no need to examine the appellant.
THE MAC
The appellant’s appeal against the MAC relates to Medical Assessor Andrews’ assessment of her impairment in the Psychiatric Impairment Rating Scale (PIRS) categories of self-care and personal hygiene, and travel.
With respect to the appellant’s function in self-care and personal hygiene Medical Assessor Andrews noted that the appellant may do some housework during the day such as washing but that she fatigues quickly and often needs a nap. Medical Assessor Andrews noted that the appellant and her husband share cooking, although the appellant struggles to follow recipes. Medical Assessor Andrews noted that the appellant neglects her hygiene by bathing only every second day, but she did not need her husband to prompt her to bath. Medical Assessor Andrews noted that the appellant sometimes misses meals but she that she has maintained her weight.
Medical Assessor Andrews rated the appellant’s impairment in self-care and personal hygiene as Class 2, that is a mild impairment. In the PIRS Rating Form appended to the MAC, he provided the following reason for his rating:
“Ms Mansell contributes to housework, including cleaning and food preparation. She maintains a lower standard than she did before she became unwell. She sometimes misses meals but has maintained her weight, has increased her alcohol intake and is drinking in a hazardous manner. She has reduced hygiene, bathing every second day and may neglect to brush her teeth. She does not rely on prompting and encouragement from her husband.”
With respect to the appellant’s functioning in the category of travel Medical Assessor Andrews noted that two weeks before he examined the appellant, the appellant and her husband drove to Perisher. Medical Assessor Andrews noted that the appellant can travel within the local area, but is anxious when travelling. Medical Assessor Andrews noted that the appellant had only driven a car once or twice since the incident in which she suffered a psychiatric injury. Medical Assessor Andrews noted that the appellant had developed a seizure disorder subsequent to the onset of her psychiatric injury, which remained undiagnosed, and that as a consequence of that she is unable to drive. Medical Assessor Andrews noted that the appellant is anxious when travelling and prefers to sit in the back seat because she feels safer. Medical Assessor Andrews noted that the appellant trusts her husband’s driving but worries about other drivers on the road. Medical Assessor Andrews noted that the appellant is anxious about taking public transport. Medical Assessor Andrews noted that, notwithstanding travelling on public transport makes the appellant anxious, the appellant intended to take public transport to a trauma and anxiety course she will be attending.
Medical Assessor Andrews rated the appellant’s impairment in travel as Class 2, a mild impairment, and in the PIRS Rating Form provided the following reasons for his rating:
“She can be independent with local travel, including on public transport. She has recently travelled to Perisher to visit a timeshare unit that she owns with her husband.”
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor
for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that because she had increased her alcohol intake and was drinking in a hazardous manner she should be monitored to ensure a minimum level of hygiene and nutrition. The appellant also submitted that she should be prompted to ensure she brushes her teeth and bathes on a daily basis. The appellant referred to the descriptors for Class 2 and for Class 3 within Table 11.1 and submitted that her needing to be prompted on a daily basis and needing to be monitored due to her alcohol intake becoming hazardous, reflect a Class 3 rating rather than a Class 2 rating.
The appellant noted that she only plans to travel on public transport and she submitted it is unproven whether she can. The appellant referred to her having made a single trip to Perisher and noted she had not made regular trips. The appellant referred to the descriptors for both Class 2 and Class 3 in Table 11.3 of the Guidelines and submitted that on the basis of her reported difficulties with travel and her anxiety when travelling that her impairment in the category of travel ought to be rated as Class 3.
In reply, the respondent submitted that the Medical Assessor’s findings with respect to the appellant’s functioning in self-care and personal hygiene are consistent with a mild impairment and that the Medical Assessor provided adequate reasoning for his assessment. The respondent submitted that when the MAC is read as a whole, the appellant’s increased alcohol consumption and drinking in a hazardous manner does not indicate that the appellant cannot live independently.
With respect to travel, the respondent submitted that the appellant’s seizure disorder as well as her psychological injury must both be considered in terms of the appellant’s ability to travel. The respondent submitted that the appellant’s intention to travel on public transport indicates that she considers herself able to travel on public transport unaccompanied. The respondent referred to Dr Smith’s assessment of the appellant’s impairment in travel and noted that the Medical Assessor’s assessment accorded with Dr Smith’s. The respondent submitted that the findings the Medical Assessor made were open to him and based on his clinical judgment of the day.
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.
Medical Assessor Andrews’ rating of the appellant’s impairment in the category of self-care and personal hygiene was based on what the appellant can do without being prompted and without monitoring. In other words, Medical Assessor Andrews has based his assessment of the appellant’s impairment in this category by reference to how the appellant presently functions, that is what she is able and unable to do consequent upon her psychiatric injury.
In the Appeal Panel’s view based on the history Medical Assessor Andrews obtained relating to the appellant’s functioning in self-care and personal hygiene it was open to him to rate the appellant’s impairment in self-care and personal hygiene as mild. Essentially, he has found the appellant is able to live independently, although with some impairment in terms of her personal hygiene and meals. That was warranted based on the history he obtained. The Medical Assessor has sufficiently explained his rating.
In the Appeal Panel’s view, assuming arguendo that the appellant’s husband did prompt her to shower and brush her teeth daily and did monitor her because of her alcohol content, then that would not, in the Appeal Panel’s view, warrant a rating of Class 3 in self-care and personal hygiene. This is because the appellant would, irrespective of the fact that her husband did this, still be capable of living independently. In other words, by virtue of those tasks that the appellant does do with respect to her self-care and personal hygiene without prompting, she is to be considered as being able to live independently. In any event, the appellant’s husband is not monitoring or prompting the appellant, and hazardous drinking (a medical term used to describe the very large number of people in the community who drink more than the recommended amount or in hazardous patterns such as binge drinking at weekends) in and of itself does not ‘require monitoring.’
It must also be borne in mind that the descriptors listed within the various classifications of in Table 11.1 represent examples of functions within self-care and personal hygiene for a Medical Assessor to consider when assessing a worker’s impairment in self-care and personal hygiene. They provide a guide but do not restrict a Medical Assessor in assigning a class of impairment.[1] The Medical Assessor must ultimately use clinical judgement to determine by reference to all matters relating to a worker’s function in self-care and personal hygiene, how impaired the worker’s function is by virtue of the worker’s injury.
[1] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [57]-[65] and Ferguson v State of NSW [2017] NSWSC 887 at [25].
In the Appeal Panel’s view, the Medical Assessor has done that in this case. The Appeal Panel considers he has assessed the appellant’s impairment by reference to the correct criteria and the Appeal Panel can discern no demonstrable error in the MAC by virtue of the rating he has made.
Similarly, the Appeal Panel also considers that based on the history Medical Assessor Andrews obtained and the reasons he provided for his rating of the appellant’s impairment in the category of travel, it was open to Medical Assessor Andrews to rate the appellant’s impairment in this category as mild. The Medical Assessor noted that the appellant can travel within her local area, although is anxious doing so. He also noted that the appellant took a recent trip to Perisher. He noted her intention to use public transport to attend treatment appointments notwithstanding that she will be anxious in doing so. Based on that, it was open for Medical Assessor Andrews to rate the appellant’s impairment as being mild in this category. Her travelling in the local area, her intention to use public transport and her recent long distant trip to Perisher is sufficient to warrant a rating of mild impairment. There is no error in the Appeal Panel’s view with his rating. Again, he has used the correct criteria to rate her impairment, and specifically discounted the impact of her undiagnosed seizure on her capacity and/or legal fitness to drive.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 May 2022 should be confirmed.
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