Ratcliffe v NSW Ambulance Service

DETERMINATION OF APPEAL PANEL
CITATION:	Ratcliffe v NSW Ambulance Service [2024] NSWPICMP 48
APPELLANT:	Richard Ratcliffe
RESPONDENT:	NSW Ambulance Service
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for primary psychiatric injury; Medical Assessor found that the worker was not at maximum medical improvement (MMI); Held – Panel satisfied that Medical Assessor failed to provide adequate reasons which was a demonstrable error; Panel reviewed the evidence and found that the worker was not at MMI; as the review did not lead to a different result, Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 October 2023 Richard Ratcliffe (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Gerard Chow, 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 (the 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 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.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant developed a primary psychological injury in the course of his employment with NSW Ambulance Service (the respondent).
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 19% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 24 December 2018.
The Medical Assessor examined the appellant on 21 September 2023. The Medical Assessor found that the appellant had not reached maximum medical improvement (MMI) and therefore did not make an assessment of WPI.

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.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined it was unnecessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination.

EVIDENCE

Documentary 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.

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    ground 1: failure to properly assess MMI (incorrect criteria). As per Guideline 1.15 for the evaluation of permanent impairment if the appellant’s degree of impairment is unlikely to improve further, then the condition is to be considered well stabilised and unlikely to change substantially in the next year with or without treatment;
(b)    there is evidence to suggest that even with further treatment, there will be no significant improvement in the appellant’s symptoms. In the four years following the injury, the appellant’s condition has improved as much as it could and at least for two years there has been no significant change despite treatment;
(c)    the Medical Assessor has not indicated why he believes that the appellant’s condition has not stabilised and seems to have ignored evidence to the contrary;
(d)    ground 2: failure to give consideration to the report of Dr Paisley dated
27 May 2022 (demonstrable error);
(e)    Dr Paisley, in his report of 27 May 2022, opined that it is likely that the appellant’s condition will have a chronic course with recurrent exacerbations and deteriorations. Dr Paisley noted that his symptoms have continued for more than two years despite treatment;
(f)    the Medical Assessor is required to exercise his own judgment in whether treatment would result in a stabilisation of the appellant’s symptoms, however, he has failed to take into account Dr Paisley’s opinion that the appellant’s symptoms will continue to ebb and flow and that further treatment will not have an impact on these symptoms;
(g)    ground 3: failure to give consideration to the report of Dr Bisht dated
27 January 2023 (demonstrable error);
(h)    Dr Bisht in his 27 January 2023 report opined that the prognosis of further recovery is unfavourable, considering the duration of symptoms, despite treatment;
(i)    following from Dr Paisley’s report, there is evidence to suggest that further treatment will not have an impact on the appellant’s symptoms;
(j)    ground 4: failure to give adequate reasons regarding the evidence and the assessment of MMI (demonstrable error);
(k)    by disregarding the above evidence, which is crucial in making the determination, it follows that a separate species of legal error occurs in the form of failure to give adequate reasons;
(l)    the Medical Assessor has failed to provide justification for his assessment of MMI and what effect further treatment will have for the appellant, and
(m)     conclusion - the above appeal grounds are made out and therefore the MAC should be set aside and the Appeal Panel should issue a new MAC establishing the appellant has reached MMI and determining that degree of WPI.
The respondent’s submissions include the following:
(a)    ground1: the finding that MMI has not been reached is open to the Medical Assessor, who noted that the appellant only seen a psychiatrist on one occasion and “is willing to see a psychiatrist for treatment and consider optimising psychotropic medication” (Page 2 MAC). Further, in respect to question 8(a), the Medical Assessor says that MMI will be reached in 12 months “with treatment”;
(b)    the Medical Assessor’s assessment that the appellant has not reached maximum medical improvement is not based on incorrect criteria;
(c)    grounds 2 and 3: it is clear from the MAC that the Medical Assessor has considered the reports of Dr Paisley dated 27 May 2022 and Dr Bisht dated
27 January 2023, as he stated “I disagree with Dr Paisley and Bisht because he has not reached MMI and WPI calculation is not appropriate in this circumstance” (Page 3 MAC);
(d)    the Medical Assessor is required to base his assessment on the clinical assessment of the appellant, as well as the available medical information. The Medical Assessor is entitled to form his own opinion and is not bound by the opinions of other doctors.There is no demonstrable error;
(e)    ground 4: The appellant submits that the Medical Assessor’s findings contained a demonstrable error as there was a failure to give adequate reasons regarding the evidence and the assessment of MMI and that the Medical Assessor failed to provide justification for his assessment of MMI and what effect further treatment will have for the appellant;
(f)    the Medical Assessor provided reasons for finding that MMI had not been reached;
(g)    the appellant has not established that the Medical Assessment Certificate is based on incorrect criteria or contains a demonstrable error pursuant to s 327 of the 1998 Act, and
(h)    the Medical Assessment Certificate dated 29 September 2023 should be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Discussion

Ground 1- Failure to properly assess MMI

The appellant submitted that the Medical Assessor failed to properly assess whether the appellant was at MMI. The appellant referred to evidence to suggest that even with further treatment, there would be no significant improvement in the appellant’s symptoms and that in the four years following the injury, the appellant’s condition has improved as much as it could. The appellant submitted that for at least for two years there had been no significant change despite treatment.
The Guidelines at 1.15 and 1.16 provide:
“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.”
The Medical Assessor noted that the appellant sought treatment from his general practitioner (GP), was referred to a psychologist and saw a psychiatrist on one occasion. Under “Present treatment”, the Medical Assessor wrote:
“He sees his GP monthly, psychologist fortnightly. He takes amitriptyline 20mg at night for sleep.
He is willing to see a psychiatrist for treatment and consider optimising psychotropic medication.”
The Medical Assessor made diagnoses of post-traumatic stress disorder and alcohol use disorder.
Under “8. Evaluation of Permanent Impairment”, The Medical Assessor wrote:
“b. Have all body parts/systems stabilised/reached maximum medical improvement? no
c. If not, please list those injuries not yet stable/at maximum medical improvement: PTSD, Alcohol Use Disorder
d. If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? With treatment 12 months.”
The Medical Assessor stated that he had based his assessment on the history, examination and collateral information. On commenting on the other medical opinions, he wrote: “I disagree with Dr Paisley and Dr Bisht because he has not reached MMI and WPI calculation is not appropriate in this circumstance”.
The appellant, in his statement dated 14 August 2023, wrote:
“25.Since January 2020, I have attempted a series of gym-based exercise programmes to improve my physical, psychological, and psychosocial health and wellbeing.
26. These programs were 'intended to rehabilitate me to my pre-injury work duties as a paramedic with NSW Ambulance.
27. I was working towards returning to work to pre-injury duties by the end of February 2020 .
28. I have undergone continuous and frequent treatment sessions with my treating psychologist at Positive Affect and PTSD Clinic.”
Dr Paisley, in his report dated 27 May 2022, under “Treatment and Progress” noted:
“Mr Ratcliffe first sought assistance from his GP for his psychological symptoms in January 2020. He was referred to a psychologist and received counselling. Mr Ratcliffe said that he had seen two psychologists and was awaiting an appointment with the third. He was prescribed melatonin for sleep but has not been prescribed antidepressant medications.
He attended one appointment with a psychiatrist. He attended sessions with an exercise physiologist for 12 weeks but was not motivated to do the exercises on his own.
God [sic] experienced some initial improvement and relief when he stopped work. His symptoms have since plateaued.”
Dr Paisley considered the addition of an antidepressant might be useful and melatonin could be useful for sleep. He recommended that the appellant continue counselling sessions with a psychologist fortnightly for a period of at least one year and considered that consultations with a psychiatrist every three months for a period of two years may be beneficial. In the assessment of WPI dated 22 May 2022, Dr Paisley wrote:
“Mr Ratcliffe's symptoms have been persistent for over two years despite treatment. His symptoms and level of functioning have not improved. I consider it unlikely that his condition will improve substantially within the next year, with or without treatment.
Therefore, his condition has reached Maximum Medical Improvement, and a permanent impairment assessment is appropriate.”
Dr Bisht, in a report dated 27 January 2023, under “Treatment history” noted:
“Richard told me that he had one appointment with Dr Nagesh, psychiatrist, in early
2020.
He added-
‘I have been a seeing psychologist regularly; it was monthly for while then once a
fortnight and then we went back to monthly when things settled down, and now I
have gone back to fortnightly;
the doctor has recently put me on an antidepressant;
I was reluctant because I have heard of many people on antidepressants putting
weight on;
he said that the small dose won’t have any effects on the weight.
I am on amitriptyline 10 mg’.
He has been on it for about 3 months.”
Dr Bisht considered that the prognosis of further recovery was unfavourable, considering the duration of symptoms, despite treatment. He recommended monthy appointments with a psychologist for a duration of six months and stated that the appellant needed to continue taking medications for one to two years. Dr Bisht expressed the view that the appellant had reached MMI.
The appellant submitted that the Medical Assessor had not indicated why he believes that the appellant’s condition has not stabilised and seems to have ignored evidence to the contrary.
The Appeal Panel are of the view that in circumstance where both independent medical examiners, that is, Dr Paisley and Dr Bisht, concluded that the appellant was at MMI, the Medical Assessor failed to provide adequate reasons for his finding that the appellant was not at MMI.
The Appeal Panel reviewed the evidence. The Appeal Panel is satisfied that the appellant had not really received any evidence-based treatment for post-traumatic stress disorder. The notes from the treating psychologists indicate that the appellant received supportive counselling, rather than trauma focused therapy. The appellant had one consultation with a psychiatrist, Dr Nagesh, in 2020 and was not prescribed medication. The appellant then returned to work and worked a further 18 months before his condition deteriorated further. However, despite the deterioration, it appears that the appellant did not receive any further treatment. The appellant has not had any further assessment from a psychiatrist since 2020, nor received any treatment from a psychiatrist.
In terms of medication, the appellant has only been on a low dose of amitriptyline prescribed for sleep disturbance, and not prescribed any medication for post-traumatic stress disorder. The appellant’s issues with alcohol have not been addressed.
The Appeal Panel is of the view that given this history and the fact that there has been minimal evidence based treatment, it is difficult to say that the appellant is at MMI. The Appeal Panel agrees with the Medical Assessor that the appellant needs further treatment by a psychiatrist and should consider optimising psychotropic medication. The appellant told the Medical Assessor that he is willing to have treatment from a psychiatrist and will consider optimising psychotropic medication. This statement was not challenged by the appellant.
In these circumstances, the Appeal Panel concludes that the appellant has not reached MMI. If the appellant had been unwilling to have further treatment, the Appeal Panel would have considered that he had reached MMI but this is not the case. The Appeal Panel was satisfied that treatment to date has been inadequate and with appropriate treatment by a psychiatrist, the appellant’s condtion is likely to improve further in the next 12 months. Therefore, Appeal Panel concludes that the appellant is not at MMI.

Grounds 2 and 3 – Failure to consider reports of Dr Paisley and Dr Bisht

The appellant submits that the Medical Assessor’s findings contained a demonstrable error as he failed to give consideration to the reports of Dr Paisley dated 27 May 2022 and
Dr Bisht.
The Medical Assessor referred to the reports of both Dr Paisley and Dr Bisht. The Appeal Panel is satisfied that the Medical Assessor gave consideration to those reports but he disagreed with the opinion of those doctors as to whether the appellant had reached MMI. This is a difference of opinion not a failure to give consideration to the reports of Dr Paisley and Dr Bisht. Ground 2 and 3 are not made out.

Ground 4: Failure to give adequate reasons regarding the evidence and assessment of MMI

The appellant submitted that by disregarding the above evidence, which is crucial in making the determination, it follows that a separate species of legal error occurs in the form of failure to give adequate reasons.
The Appeal Panel is satisfied that the Medical Assessor did not disregard the above evidence, that is, the reports of Dr Paisley and Dr Bisht. The Medical Assessor referred to those reports in the MAC and it is clear that he had read those report but disagreed with those doctors over the question of whether the appellant was at MMI.
The appellant submitted that the Medical Assessor failed to provide justification for his assessment of MMI and what effect further treatment will have for the appellant. The Appeal Panel considers that these grounds have been dealt with above.
In summary, the assessment of whether the appellant was at MMI by the Appeal Panel was the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).

For these reasons, the Appeal Panel has determined that the MAC issued on
29 September 2023 should be confirmed.

[2024] NSWPICMP 48

5 February 2024