Redford v State of New South Wales (NSW Ambulance Service)
[2024] NSWPICMP 187
•3 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Redford v State of New South Wales (NSW Ambulance Service) [2024] NSWPICMP 187 |
| APPELLANT: | Anthony Redford |
| RESPONDENT: | State of New South Wales (NSW Ambulance Service) |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 3 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal by paramedic after 20 years employment resulted in psychological injury; whether assessment of 9% whole person impairment had been properly reasoned; whether ratings for social functioning rating and employability had been explained; Held – Medical Assessor’s reasons so cursory that basis of ratings impossible to discern; El Masri v Woolworths Ltd considered and applied; re-examination ordered; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 October 2023 Anthony Redford, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 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 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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 14 June 2023 this matter was referred to the Medical Assessor for a WPI assessment caused by psychiatric and psychological disorder that have occurred on 1 December 2022. following consent orders entered before Member Beilby on 9 June 2023.
The Medical Assessor noted that Mr Redford had been exposed to multiple traumatic events with State of New South Wales (NSW Ambulance Service) (the respondent) including suicide attempts and motor accidents where we people were trapped in cars. He worked in a “toxic workplace” where he had suffered bullying and harassment, with some colleagues suiciding. There were also child protection issues.
The Medical Assessor assessed a WPI of 8%.
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 the worker should undergo a further medical examination, as the Appeal Panel determined that a demonstrable error had been made which could not be corrected without such a re-examination. Accordingly a re-examination as organised with Dr Ash Takyar.
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.
Further medical examination
Dr Ash Takyar of the Appeal Panel conducted an examination of the worker on 16 January 2024 and reported to the Appeal Panel.
The MAC
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 which have been considered by the Appeal Panel.
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.
The MAC
The Medical Assessor gave a short and somewhat peremptory statement of reasons, with respect. He described a history of trauma whilst with the respondent, but did not say when Mr Redford commenced employment, nor the period during which he was exposed to the multiple events that the Medical Assessor acknowledged.
His description of Mr Redford’s social activities stated:
“Social activities/ADL: he showers daily. He has started a new intimate relationship for a month or so and stays at her house a few nights a week. He cooks for himself and goes to the shops every other day. He attends family social events. He has lost contact with friends and does not go out to social events with friends. He has been on a camping holiday with his son. He has plans to study in the future and is considering law, adult education, counselling and naturopathy.[1]”
[1] Appeal papers page 11.
He explained his reasons as follows:
“10. REASONS FOR ASSESSMENT
a. My opinion and assessment of whole person impairment 8% + 1% = 9% In making that assessment I have taken account of the following matters:-
History, examination and collateral information
b. An explanation of my calculations (if applicable)
See table. I have added 1/10 for treatment effect. Worksheet /actual calculations attached? yes
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs Dr Vickery 7/3/23 does not diagnose a work related injury Dr Paisley 26/10/22 diagnoses PTSD with WPI of 20% including 1% for treatment effect.
I agree with Dr Paisley that there is a diagnosis of PTSD. He meets DSM-5 criteria. There are other personal stressors which could be viewed as a consequence of PTSD.
Social Functioning – I note that he has engaged in a new intimate relationship.
Adaptation – While he has severe impairment I note he is able to plan a camping trip and also consider further studies.[2]”
[2] Appeal papers page 12.
The Medical Assessor compiled the following PIRS rating form:
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Some reduction in motivation
Social and recreational activities
3
Has withdrawn from social and recreational activities with friends
Moderate impairment
Travel
2
Is able to travel independently
Social functioning
2
He has had a marriage breakdown
Good relationship with his son
Has started a new intimate relationship
Concentration, persistence and pace
2
Subjectively impaired concentration
Was able to concentrate adequately during the interview
Is able to concentrate at work
Employability
4
Is severely impaired. Has demonstrated capacity to plan a camping trip. He is considering further education options
SUBMISSIONS
The appellant
Mr Redford submitted that the Medical Assessor had erred in his determination of two of the categories of Psychiatric Impairment Rating Scale (PIRS), “social functioning” and “employability”.
Mr Redford submitted that the mild class 2 classification under social functioning should be replaced with a class 3 rating and the class 4 impairment for employability rating should be increased to class 5.
Social functioning
Mr Redford referred to the opinion of his medico-legal expert, Dr Paisley, which was “the only point of comparison” as Dr Vickery, who was qualified for the respondent, stated on 7 March 2023 that maximum medical improvement had not been obtained and in any event that Mr Redford’s injury was not work related – opinions that had obviously not been accepted by the respondent.
Mr Redford referred to the Medical Assessor’s reasoning for assessing a class 2 impairment.
Mr Redford submitted that the reasons given by the Medical Assessor were “extremely cursory” and that a re-examination was necessary to “properly investigate and articulate the symptomatology suffered by the appellant in the various PIRS categories for proper classification…..”
We were referred to Wingfoot Australia Partners Pty Ltd v Kocak,[3] State of New South Wales (New South Wales Department of Education) v Kaur,[4] Broadspectrum (Aust) Pty Limited v Fiona Louise Wills[5] and Tania Wendy McGarrity v The Trustee Anglers Arms Hotel Unit Trust trading as Lennox Head Hotel.[6]
[3] [2013] HCA 43.
[4] [2016] NSWSC 46 at [24]-[25].
[5] [2018] NSWSC 1320.
[6] [2023] NSWPCMP 399 [22] (McGarrity)
It was submitted that there was no adequate reasoning given as to the class 2 assessment made by the Medical Assessor. We were referred to the opinion of Dr Paisley dated 26 October 2022.
Mr Redford referred to various portions of the reports of both Dr Paisley and Dr Vickery.
It was submitted that the new relationship as at the time of Mr Redford’s submissions had been of one month in duration and that Mr Redford did not cohabitate with his new partner. It was submitted further there was no guarantee that the relationship would survive in the long term in view of both its brevity and the symptomatology reported by the appellant.
Mr Redford submitted that there was no context or detail provided by the Medical Assessor regarding the new relationship nor his relationship with his son. The evidence demonstrated that the marital breakdown was caused by the psychological stress from his employment and accordingly should have been included as an element of social functioning. Mr Redford referred to the contemporaneous evidence contained in the GP’s clinical notes as support for this submission.
Employability
As to employability, Mr Redford submitted that the reasons given for the class 4 assessment by the Medical Assessor were self-evidently inadequate.
It was not possible, it was submitted, for the Appeal Panel to discern why the class 4 impairment was made, let alone whether there had been an error in making that classification.
We were again referred to McGarrity. It was submitted that Mr Redford remained totally incapacitated, and was receiving weekly compensation on that basis. The Medical Assessor failed to allude to those facts. The relevance of the Medical Assessor’s reference to a camping trip was questioned by the appellant, and the reference to further education options did not assist to explain the impairment level he had found.
We note at this point that the Medical Appel Panel in McGarrity was also dealing with a MAC from this Medical Assessor. At [22] the Appeal Panel said:
“These reasons are insufficient to explain why, having regards to the criteria in the Guidelines and the evidence before the Medical Assessor [one class] was selected, as distinct from [another]. They do not put the Panel in a position where it is able to discern whether error is present or absent. The insufficiency of reasons demonstrates error, requiring that the Medical Assessment Certificate be set aside.”
The respondent
Social functioning
The respondent submitted that context was given to the Medical Assessor’s summary, in that Mr Redford had recently been on a camping holiday with his son and that the relationship had been ongoing for one month.
The respondent conceded, quite properly, that the Medical Assessor’s reasons were “somewhat brief” but nonetheless maintained that the Medical Assessor has discharged his duty to provide adequate reasons.
The respondent submitted that whilst other medical opinions were relevant, a Medical Assessor was not bound by them and entitled to rely on his own assessment.
The marriage breakdown as evidenced in the general practitioner’s (GP) clinical notes simply confirmed a fact in issue that was conceded, the respondent argued.
It was suggested that the Medical Assessor did acknowledge that the psychological injury contributed to the marriage breakdown, which was in the Medical Assessor’s reasons which was recognised in the reasons for the class 2 impairment rating. That inclusion indicated that the Medical Assessor had “appropriately considered” that issue and taken it into account, it was asserted.
The respondent kindly reproduced the descriptors for both class 2 and class 3. It submitted that the assessment made by the Medical Assessor was “entirely open” to him. It was conceded (appropriately) that the marriage breakdown would suggest a class 3 impairment. However, the respondent submitted that the additional factors of the good relationship with Mr Redford’s son and the custody arrangement of 50% justified the class 2 impairment rating.
We were referred to Allianz Australia Insurance Ltd v Cervantes[7] in support of the submission that it was wholly within the authority of a Medical Assessor to determine the weight to be given to the relevant evidence. However, that authority related to the Motor Accidents Compensation Act 1999, and was of no assistance in dealing with assessments pursuant to the 1998 Act.
Employability
[7] [2012] NSWCA 244.
In this category, the respondent kindly again reproduced the descriptors for a class 4 and class 5 impairment rating.
“Class 4 Severe impairment: Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 Totally impaired: Cannot work at all.”
The respondent traversed the submissions made by Mr Redford in this regard. It responded that the class 4 assessment was open to the Medical Assessor and the reasoning given was adequate.
The Medical Assessor was aware that Mr Redford had not worked since 2021 and that he was not capable of doing his pre-injury duties, therefore there was no issue as to the question of capacity, only of degree.
The respondent argued that although Mr Redford was in receipt of weekly payment on the basis that he had no current capacity for work, that did not mean that a class 5 assessment ought to be made. The respondent submitted that the criteria for assessing weekly payments was separate from and involved different concepts to an assessment of employability under the PIRS.
We were referred to Marina Pitsonis v Registrar Workers Compensation Commission & Anor[8] in furtherance of a submission that a Medical Assessor was able to use his clinical judgment in finding a different result to those advanced by other experts.
[8] [2008] NSWCA 88.
The respondent conceded that there was an obligation to give reasons, referring to Vegan.
Accordingly the ability by Mr Redford to plan a camping trip and consider future study were relevant matters regarding the appropriate classification, it was argued.
DISCUSSION
Whilst the respondent is correct to argue that a Medical Assessor is not bound to accept the opinions or any advice from other medical experts, nonetheless there is an underlying duty to given reasons that disclose his path of reasoning.
In El Masri v Woolworths Ltd[9] Campbell J said:
“…Although … Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan[10] what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”
[9] [2014] NSWSC 1344.
[10] [2006] NSWCA 284.
Although the appellant purported to restrict his appeal to the two categories we have mentioned, his submission that a re-examination would allow us to properly investigate and articulate the classification in the “various PIRS categories” might be interpreted as meaning that the scope of the appeal was intended to be somewhat wider than that claimed.
We are however constrained to consider only the issues raised within the appeal. Accordingly, we have restricted our re-examination to the two categories of social functioning and employability. We would however observe that the criticisms made with regard to these two categories were perhaps applicable over all of the categories.
The Medical Assessor’s reasons were so cursory that it was impossible to ascertain the basis of his impairment rating in each PIRS category. His path of reasoning was anything but clear and accordingly the Medical Assessor made a demonstrable error. A re-examination was organised with Dr Taykar on 16 January 2024.
Dr Takyar’s report follows:
“1. The workers medical history, where it differs from previous records
Mr Redford said he had commenced as a paramedic with the Ambulance Service of NSW in 2001. He described the development of his psychiatric injury in the course of his employment through cumulative occupational trauma exposure.
In discussing when these changes commenced or were noticed by him, Mr Redford reported, ‘as I started to delve into where symptoms began… as far as functioning started to become affected, it was late 2018, early 2019, I started to delve into things that happened much earlier than that. It really sorta went back to 2002, 2003. Um. And, um, there are specific incidents that I thought, the memories are still quite vivid at times, when I started exploring them with psychologists, and unfortunately, the symptoms started to get worse’.
Asked when nightmares and flashbacks of witnessed trauma scenes had started, he reported, ‘After exploring it, it was actually quite early, it was about 2007, 2008, but that was… actually no, the first ever – it was isolated in the beginning, so about 2000… 2008…’ Discussing this further, he said that it was ‘2007’ when these symptoms had commenced.
He became evidently clearly anxious as he spoke of when his anxiety had begun – his thought stream reduced and he paused intermittently, appearing distressed and reporting that it had begun around ‘2010’, while he felt depression was ‘More recent, um… [pause]… it’s hard… it’s more slowly… more recent’. In his view, trauma-related avoidance phenomena had set in over time, commenting, ‘That happened fairly… I stopped watching the news between 2008, 2009 – because I’d see myself in jobs, actually see me… nurses on the TV would say, We saw you on the news last night’. He said the avoidance increased over time, and eventually he stopped watching the news. Mr Redford said he recalled telling a medicolegal assessor that he would feel fine if he could remove himself from any work-related trauma exposure reminders.
Over time, he began consulting his general practitioner, Dr Bernadette Kua about the injury: we first kind of, I would talk to her about work all the time, for a number of years… everything that would go on for a number of years. I would talk to her about jobs, about politics. I can’t give you an exact date when I started talking about it. She’s been my GP for a number of years’.
Psychologist, Claire Mann began treating him in ‘mid to late 2021, can’t give you an exact date’. The MAC of Dr Chew (September 2023) states that he was being seen weekly, and Mr Redford said this continues, with supportive psychotherapy described as the mode of treatment.
He has not been under the care of a consultant psychiatrist. Asked if he has been prescribed any psychotropic medicines for the work injury, he reported, ‘I had spoken to people about it, I was opposed to it’.
Currently, he has been prescribed melatonin 2mg CR for around a year for sleep induction.
He denied any new accidents, injuries or conditions since Dr Chew’s MAC, nor did he describe or were there any evident other contributing factors that impact on his mental state at current.
In terms of medical progress, he said he has had both a colonoscopy and gastroscopy since then (in November 2023), which diagnosed ulcers. He did not think this impacts on his mental state currently.
2. Additional history since the original Medical Assessment Certificate was performed
This history was obtained as an average over the last two months.
Prior to his injury, Mr Redford said he slept more – ‘On average, if you averaged it out, six hours, waking up’, though it became apparent that he was referring to earlier after his injury had formed, and refocussed, he corrected this – ‘That would have been about eight hours a night’ with no initial or middle insomnia. These days, he sleeps around six hours nightly, waking thrice but he returns to sleep ‘with the melatonin, fairly quickly’, waking more refreshed since it began – before it, he spent about an hour awake per night, cumulatively from middle insomnia.
Moderate concentration disruption was observed through the examination and asked about it, he described these days as ‘Shithouse, my short-term memory is pretty bad, sometimes I can’t remember where I parked my car at the shopping centre, conversations I will forget where I was up to sometimes. Any sort of stress exacerbates those symptoms. Anxious, or whatever’. Redirecting him back to consider his concentration, he reported, ‘I’ve been told it’s not great, people get frustrated talking to me because I will forget what I was up to, I will forget where I was up to, people get frustrated, it’s difficult to hold onto friendships’. This poorer concentration means ‘it is difficult to write for any length of time, it’s difficult to pay a bill’. Mr Redford initially said he can watch a show for 20 minutes, but on more closely exploring his actual focus in this time, he reported intermittently losing focus, but he could not say how quickly this takes place (‘I can’t give an exact thing’).
His mood is depressed these days ‘On and off, I try and exercise and distract myself’ – Mr Redford was asked to compare it to how it had been prior to his injury, and he reported feeling depressed for around ‘80%’ of his typical waking week in the last two months, with relatively ‘normal’ mood outside this. In terms of the severity, he feels ‘mildly depressed’ for three-quarters of the time he feels depressed, and moderately depressed for the remaining quarter. He noted that he had spent time crying earlier in his injury, but no longer does. Asked about energy, he replied, ‘In the last few months, I’ve put on a bit of weight, exercising less than I would normally, in the last few months I’ve put on about 5 kilos… [since] pretty much the last assessment’. Returned to the question, he discussed his concentration, and refocussed again, he stated, a ‘lot less’ though he struggled to detail this further. He was asked to rate it, reporting that it has reduced to 60% of his pre-injury baseline, napping three times a week for up to 20 minutes. Enjoyment was reported to be ‘complicated… about 20%’. Mr Redford denied any self-harm or suicidal ideation, intent or plans, and while he has hope of improvement in the future, this is ‘diminished hope, the insurance process feels like it is making things worse, just goes on forever’. His motivation is usually good, lowering ‘not very often’. Mr Redford ate three meals a day pre-injury, and now will ‘tend to overeat… six a day’, similarly sized, but with ‘diminished’ meal enjoyment. He is now ‘about 15kg heavier than I was before… it’s more to do with my body fat to be specific, I weigh 10kg more but with more body fat, just the body shape in general’.
Anxiety is present for around ‘20 percent of the time’, which he confirmed when discussed. This is high for a small period of time daily (20 minutes, rated at 7-8/10, where 1-3 represent low anxiety, 4-6 moderate, 7-8 high and 9-10 severe anxiety) though it usually is moderate. Along with degraded sleep, concentration and energy with napping, he reported anxiety-related irritability though he struggled to describe it. On seeking clarification, he reported that if he feels this way he will withdraw so that he does not express it to others. His frustration tolerance has lowered. He experiences anxiety-related muscle tension in his ‘legs… back… shoulders, head, forehead’, adding that he has bruxism (grinding his teeth) and headaches at times. Physiological changes occur daily when more anxious of sweating ‘a lot, profusely, heart rate increases, tightness in the chest’ but palpitations occur only ‘very occasionally’ – all four occur together (a panic attack) ‘once a week’. Earlier, he described restlessness when he spoke about his concentration problems when he feels anxious, such as in social settings.
Re-experiencing nightmares of witnessed trauma scenes occur ‘about once a week at the moment, one to three times a week, sometimes I forget that I’ve done it and then I talk to the psychologist. It’s become the new normal, and sometimes it’s hard to keep track of. When I’m stressed, it can be daily’. In the last two months, he has had them ‘three times a week’. Intrusive flashbacks occur ‘three times a week’ of these scenes. Hyperarousal changes of sleep and concentration deficits, irritability as noted and exaggerated startling with noises occur (he said he feels ‘very’ jumpy, weeping as he said the sounds of children or infants screaming or crying, fireworks or gunshots make him feel like this, or hearing something get dropped at a supermarket) along with hypervigilance ‘often, short episodes daily’ outside his home. He spoke of negative cognitive and emotional changes, with difficulty experiencing positive emotions sometimes and often lacking trust in others and experiencing fear, along with minimal enjoyment. He avoids ‘locations of trauma… of jobs, certain people – pretty much anything to do with NSW Ambulance and the people in it. Anything to do with politicians who work in health, health policy, watching them on the news’. Alcohol-related numbing and avoidance of triggers (internal and external reminders of the trauma scenes) occurs, and he said his drinking in the last two months has ‘increased a little bit, two a week’, which he was drinking monthly around the time of the MAC. He recalled that he had ‘pretty much eliminated it’ after leaving work though his consumption had been higher through the injury period while working as he used it to quell trauma and anxiety symptoms.
Other history
He does not use illicit substances, smoke or gamble.
In considering his employment, Mr Redford said he has not been medically discharged from the Ambulance Service of NSW. He did not think he has any capacity to work in any role at current from a psychiatric stance. It was noted that Dr Chew’s MAC had said he was considering further educational options, and he said that currently he is not actively considering anything like this, nor was he at the time of seeing Dr Chew. Of note, Dr Paisley in his report opined that Mr Redford had no work capacity, and Dr Vickery also felt he had no capacity to return to his pre-injury duties.
PIRS domains under review and further history of functioning and Daily Living Tasks
This history was obtained as an average over the last two months.
In turning its mind to social functioning, the Panel sought to obtain a greater level of detail in terms of his functioning in this regard.
Mr Redford said he resides with his 11-year old son ‘and my estranged wife, she sorta lives downstairs and I live upstairs and we share custody 50/50’. They have been separated for ‘two and a half years, roughly’, with the separation occurring ‘simultaneous’ to the injury, around when he was diagnosed. He noted, ‘She didn’t want to be married anymore… she didn’t understand… she never really wanted to know what was happening at work’, recalling that at one point she had told him, ‘I feel sick, I can’t listen’ when he spoke about his work, which he said made him feel unsupported – he identified this as around the point where their relationships began declining.
His relationship with his son was reported to be ‘good’.
Mr Redford was asked about whether he has been in any further romantic relationships since the injury, and he reported, ‘It’s difficult to maintain a relationship, it sorta starts and then finishes’. He said that he has had two relationships since the injury and his marriage ending, ‘both fairly short-term’, with ‘one in the first year since I stopped work… a couple months’ and the other in the last six months, which had lasted ‘two or three months, now it’s kinda dissolved into a friendship’, with the physical component now ‘not so much, that’s the problem’. Asked about this, he added, ‘After the other party experiences a flashback they want to fix it… what they see is difficult and then they talk about it and want to fix it and…’ His voice trailed off, but on further history he said this tends to change the nature of the relationship away from a sexually active one as the person he sees tends to start caregiving.
He has lost friendships since the injury – ‘Most of them, I pretty much… I am not friends with pretty much anyone I was friends with three years ago’ as ‘they get sick of hearing about my shit and it’s an emotional burden for them… even long-term friends, they just don’t want to hear it anymore’.
3. Findings on clinical examination
Mental State Examination
Mr Redford presented as a casually-dressed 50-year-old male of a large build who was dressed in a large, oversized black T-shirt with print. He had short, unstyled dark brown hair and was seated for most of the 70-minute examination. Rapport was fair. Movements appeared a little slowed. Eye contact was a little reduced. His speech was mostly reduced in rate and volume, though his speech rate increased with his anxiety at times through the history, particularly where the injury history drew closer to trauma exposure discussion. His thought form was tangential at times, requiring re-direction. At one point, his thought stream reduced, with pauses due to anxiety. Mood was low, and his affect was restricted in range, anxious in quality and well-communicated. It was teary at one point. Thought content revealed depressive, anxious and trauma themes. He denied any self-harm or suicidal ideation, intent or plans. Concentration and memory were fairly disrupted and required further enquiry and refocussing. His insight and judgement were fair.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.”
The Appeal Panel adopts Dr Takyar’s report, and accordingly the matter may be re-assessed.
Mr Redford is a male of 50 years who was a paramedic with the Ambulance Service of NSW. Through the course of his employment, he developed psychiatric injuries, namely a post-traumatic stress disorder, congruent with the diagnosis of Medical Assessor Chew.
Dr Takyar obtained a detailed history of Mr Redford’s current psychiatric symptoms and a focussed history of his functioning. Given Mr Redford’s current symptomatology, that anxiety occurs for a minority of the week (20% of his waking week in the last two months, albeit at a high grade when present), along with associated symptoms, and given that he is mostly depressed – but largely at a mild grade (for three-quarters of the time he is low in mood), the Appeal Panel determined that he has some work capacity, limited to one or two days at a time, and less than 20 hours per week . He cannot perform his pre-injury duties and can only work at a reduced and erratic pace, with reduced working efficiency. The Appeal Panel determines that this reflects an impairment at class 4 in the category of Employability. We note that Dr Paisley had determined a class 5 score reflecting full incapacity, but some 14 months have elapsed since that examination. We prefer Dr Takyar’s more contemporary history, his findings on examination, and our reading of the referred material.
As to the category of social functioning we find that a class 3 score is appropriate, given the breakdown in Mr Redford’s relationship with his wife through the course of the injury without other clear cause, difficulties forming long-term romantic relationships since, and the loss of friendships. He has, on the other hand, a good relationship with his son, and he and his wife, although separated for two and a half years, continue to live together (though this may be at least partly due to economic factors).
The Appeal Panel did not agree with the view of Dr Vickery in his March 2023 report where he felt maximal medical improvement had not been reached, noting that he has had extensive therapy (weekly for two years) and noting that he did not wish to take psychotropic medicine, which is his choice to consider.
The Appeal Panel notes that the class scores based on this re-examination are as follows: 2 3 2 3 2 4. The median is 3 and the aggregate 16, with a WPI determined at 17%.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3060/23 |
Applicant: | Anthony Redford |
Respondent: | State of New South Wales (NSW Ambulance Service) |
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 Medical Assessor Dr Gerald Chew 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 WorkCover Guides | 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) |
| Psychologica/psychiatric | 1 December 2022 | Chapter 11 Page 54 | N/A | 17% | nil | 17% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
6
0