Martin v Dare Disability Support Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Martin v Dare Disability Support Limited [2024] NSWPICMP 128
APPELLANT:	Vanessa Martin
RESPONDENT:	Dare Disability Support Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	7 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) provided adequate reasons, and thereby erred, with respect to his finding that the appellant had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable; whether MA applied incorrect criteria in assessing the appellant had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable; Appeal Panel held that the MA’s reasons were inadequate and that as a consequence the Medical Assessment Certificate (MAC) contained a demonstrable error; Appeal Panel found however that based on the material before it, and for the reasons the Appeal Panel explained in its statement of reasons, the degree of the appellant’s permanent impairment was not fully ascertainable and hence the demonstrable error made no difference to the outcome; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 October 2023 Vanessa Martin, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 September 2023.
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):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant worked as a disability support worker for Dare Disability Support Limited (the respondent) between March 2019 and November 2021. Due to incidents that occurred in her workplace, the appellant suffered a psychological injury. Relying on a report of psychiatrist Dr Ben Teoh dated 6 October 2022, who examined the appellant on 5 September 2022 at the request of the solicitors and advised in his report that he assessed the appellant had 15% whole person impairment (WPI) from her injury, the appellant claimed compensation from the respondent’s insurer pursuant to s 66 of the Workers’ Compensation Act of 1987 (the 1987 Act) for permanent impairment from her injury.
The respondent’s lawyers thereafter organised for the appellant to be examined by a psychiatrist Dr Nabil Malik on 7 December 2022. In a report dated 5 January 2023 Dr Malik advised the respondent’s solicitors that he assessed the appellant had 13% WPI from her injury. On 6 February 2023 the insurer wrote to the appellant notifying her under s 78 of the 1998 Act that it denied liability to pay her compensation for permanent impairment because the degree of her permanent impairment did not cross the threshold of at least 15% WPI as required by s 65A(3) of the 1987 Act.
The appellant then commenced proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for permanent impairment. The Commission referred her claim to the Medical Assessor to assess several medical disputes relating to her injury, including whether the degree of her permanent impairment from her injury is fully ascertainable.
The Medical Assessor examined the appellant on 14 September 2023. The history the Medical Assessor obtained, and detailed in the MAC, included that since the age of 19 the appellant has suffered depression and anxiety “on and off”, and has seen psychologists and been prescribed antidepressants in the past. The history the Medical Assessor obtained also included that subsequent to suffering her work injury the appellant engaged with her general practitioner and a psychologist. The Medical Assessor noted however that at the time of assessment the appellant was not having treatment, but was willing to engage with mental health professionals including a psychiatrist.
Within the form the President of the Commission has approved for a Medical Assessment Certificate, there is a standard question, “have all body parts/systems stabilised/reached maximum medical improvement?”. The Medical Assessor answered “no” to this. In answer to another standard question, “if stabilisation/maximum medical improvement, of any or all injuries has not been reached, when in your opinion will this occur?”, the Medical Assessor said “maximum medical improvement will likely occur from six to twelve months with appropriate treatment”.
At 10a of the MAC, under the standard heading “my opinion and assessment of whole person impairment”, the Medical Assessor wrote “n/a no MMI reached”. MMI is an acronym for maximum medical improvement.
At part 10c of the of the MAC the Medical Assessor said that he disagreed with “the WPI assessment of Dr Teoh and Dr Malik because she has not reached maximum medical improvement”. He explained his reasons for that as being “there is evidence based treatment available and she is willing to engage with a psychiatrist and discuss treatment options”.
It is explicit from the MAC that the Medical Assessor considered that the appellant’s permanent impairment from her injury was not fully ascertainable as a consequence of his concluding that she had not attained maximum medical improvement, and further as a consequence of his concluding that her permanent impairment was not fully ascertainable, he declined to make an assessment of the degree of her permanent impairment.

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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134], and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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 the Medical Assessor did not provide any reasons why her treatment to date has been inadequate. The appellant submitted that the Medical Assessor’s reasons were insufficient to understand why he concluded that she had not attained maximum medical improvement. The appellant submitted to the effect that the fact that she is willing to engage with a psychiatrist is an irrelevant consideration. The appellant submitted that the Medical Assessor did not explain the value of her seeing a psychiatrist. The appellant submitted that the Medical Assessor did not explain why he rejected the opinions of Dr Teoh and Dr Malik.
In reply, the respondent submitted that the conclusion of the Medical Assessor that the appellant’s injury had not reached maximum medical improvement was open to him to make and was appropriate in the circumstances. The respondent submitted that:
“…the fact an individual with a psychological or psychiatric injury receives ‘evidence based’ treatment from ‘mental health professionals including a psychiatrist’ is not controversial and the benefits from such treatments can be easily inferred and understood from the context in which that recommendation is made”.
The respondent submitted that there are restrictions on medications that a general practitioner can prescribe which do not apply to a psychiatrist. The respondent submitted that the psychologist is unable to prescribe medications.
The respondent submitted that it would have been inappropriate for the Medical Assessor to proceed with an assessment of permanent impairment where the Medical Assessor had reached the conclusion that the appellant’s condition had not stabilised.
The respondent submitted that the Medical Assessor was not required to follow the opinion of any other of the doctors the parties had qualified. The respondent submitted that the fact that the Medical Assessor did not engage with the reports of Dr Teoh and Dr Malik to any significant extent is not fatal to the validity of his conclusion that the appellant had not attained maximum medical improvement.

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.
Section 322(4) of the 1998 Act reads as follows:
“A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
Section 322(1) of the 1998 Act provides that:
“…the assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Act it to be made in accordance with Workers Compensation Guidelines (as enforced at the time the assessment is made) issued for that purpose”.
The guidelines that have been issued for that purpose are the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines). Clauses 1.15, 1.16 and 1.34 of the Guidelines read as follows:
“1.15 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 worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 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.
1.34 If the claimant has been offered, but has refused, additional or alternative medical treatment that the assessor considers likely to improve the claimant’s condition, the medical assessor should evaluate the current condition without consideration of potential changes associated with the proposed treatment. The assessor may note the potential for improvement in the claimant’s condition in the evaluation report, and the reasons for refusal by the claimant, but should not adjust the level of impairment on the basis of the claimant’s decision.”
There are no criteria specified within the 1998 Act that a Medical Assessor must consider to be satisfied whether the degree of permanent impairment is fully ascertainable. The purpose behind the instructions contained within clauses 1.15, 1.16 and 1.34 of the Guidelines, which a Medical Assessor must abide in accordance with s 322(1) of the 1998 Act, clearly will assist a Medical Assessor with the task of assessing whether a worker’s impairment is fully ascertainable.
The Appeal Panel considers, consistent with the submissions the appellant made, that the Medical Assessor’s reasoning why her treatment to date has not been adequate and why the appellant would likely benefit from consulting a psychiatrist was so sparse such that it lacked cogency. Section 325(2)(c) of the 1998 Act requires a Medical Assessor to set out within the MAC his or her reasons for the assessment he or she makes of the matters referred for assessment. Those reasons do not need to be extensive but they must be sufficient to disclose the actual path of reasoning such that the parties or an Appeal Panel can understand the opinion the Medical Assessor has reached and understand whether it has involved error.[2] In the Appeal Panel’s view the Medical Assessor has not in any cogent way engaged with the critical facts of this case to explain why, because the availability of further treatment for the appellant, she has not achieved maximum medical improvement and, as a consequence of that, her permanent impairment is presently not fully ascertainable. Because he has failed to do that, the Medical Assessor has made an error as such the MAC contains a demonstrable error.
[2] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA254 at [34]; State of New South Wales v Kaur [2016] NSWSC346 at [25]-[26].
That said however, the Appeal Panel considers that that error makes no difference to the outcome in this matter. That is to say, the Appeal Panel considers that the appellant’s treatment to date has not been adequate and there is treatment with which she is willing to engage that is likely to have a positive effect on her condition.
A psychiatrist has more specialised expertise than a general practitioner and regarding psychiatric illness and consequently is far better positioned than a general practitioner regarding how to treat a psychiatric illness. A psychiatrist is far better positioned than a general practitioner to consider the medication and therapies that are best suited for a worker with psychiatric illness. The Appeal Panel also notes that a psychologist is unable to prescribe medication.
The appellant has a history of mental illness that predated her injury. It is apparent from the evidence that this has required more extensive treatment over the years that may, from the clinical notes, have contributed to the worker being able to complete her Certificate three and be functioning well enough to commence with her employer in March 2019. In all likelihood, her history of mental illness would have an impact, to some degree, on the symptoms she presently suffers from her work injury. Given that, the Appeal Panel considers that the appellant requires the intervention of a psychiatrist so as to manage her treatment and prescribe appropriate medication. Given her history of mental illness, the Appeal Panel considers the limited treatment she has had for her injury to date, which essentially comprises, consultations with a general practitioner and psychologist is inadequate.
To repeat, it is likely she will obtain benefit from consulting a psychiatrist.
In that circumstance, the appellant cannot be considered to have attained maximum medical improvement. Because the appellant is willing to consult a psychiatrist there is a likelihood her condition will improve and hence her condition cannot now be considered well stabilised.
The Appeal Panel also accepts the appellant’s submission to the effect that the Medical Assessor did not engage in any meaningful way with the opinions of Dr Teoh and Dr Malik, but that in the Appeal Panel’s view has no bearing on the outcome.
Dr Teoh in his report of 6 October 2022 provided no cogent reasons why he formed the view that the appellant had attained maximum medical improvement. He merely just stated that was the case. Further, he did not consider whether the appellant would benefit from consulting a psychiatrist. Given Dr Teoh’s lack of reasoning regarding these matters, there was consequently really nothing for the Medical Assessor to discuss in terms of Dr Teoh’s evidence.
Dr Malik explained that he considered maximum medical improvement had been achieved because he considered the appellant’s condition was stabilised and was unlikely to change substantially in the next year with or without medical treatment. At page 13 of his report Dr Malik indicated that the appellant should continue seeing her psychologist and continue with her medication. He also said that “regular follow up with the psychiatrist at a frequency of every 2 or 3 months at least for a further year for review for mental state and psychotropic medications” was treatment that was indicated for the appellant. Given that the appellant has not seen a psychiatrist for her work injury and given that Dr Malik seems to be indicating that this would be appropriate treatment for the appellant, the inference from which is that the appellant would benefit from that treatment, it is difficult to comprehend Dr Malik’s opinion that the appellant has attained maximum medical improvement.
In any event, the Medical Assessor is not required to choose between the opinion of other clinicians, or to adjudicate on conflicting opinions, but rather apply his clinical judgement and expertise to form his opinion. He has done that in this case, but he has not however explained his reasons for his opinion in a sufficient way. But irrespective of that error, the result remains the same.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 September 2023 should be confirmed.

[2024] NSWPICMP 128

7 March 2024