Robson v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 664
•18 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Robson v State of New South Wales (NSW Police Force) [2024] NSWPICMP 664 |
| APPELLANT: | Mel Robson |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 18 September 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS); application to rely on statement as to conduct of examination; Petrovic v BC Serv No 14 Pty Limited & Ors, Lukacevic v Coates Hire Operations Pty Ltd, and State of New South Wales v Ali considered; assessment under the PIRS at the date of examination; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 July 2024 Mel Robson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Clayton Smith, who issued a Medical Assessment Certificate (MAC) on 17 June 2024.
Ms Robson relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in assessing social functioning under the Psychiatric Impairment Rating Scale (PIRS). 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
Ms Robson was employed by the State of New South Wales (NSW Police Force) as a police officer. She suffered a psychological injury which is deemed to have occurred on 19 September 2022.
The Medical Assessor diagnosed mild post-traumatic stress disorder. He considered that Ms Robson had previously also suffered from major depressive disorder and alcohol use disorder but no longer met the criteria for those diagnoses.
Using the PIRS, the Medical Assessor assessed 1% whole person impairment (WPI). He assessed Ms Robson in class 1 under each table with the exception of employability for which he assessed her in class 3. The Medical Assessor added 3% for the effects of treatment, which he said has resulted in a substantial and almost complete remission of symptoms. His final assessment was 4% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
Before summarising the submissions, we note that the submissions prepared by Ms Robson’s solicitors contain a mix of pronouns. Being uncertain as to which to adopt, we have used feminine pronouns in this decision based on the title in the Application to Resolve a Dispute (ARD). If we have not used Ms Robson’s preferred pronouns, no offence is intended.
In summary, Ms Robson submitted that the appeal should be allowed on the basis of fresh evidence in the form of a statement describing the examination which she said was conducted in an unprofessional manner and led to an inaccurate report. She strenuously sought re-examination by a Medical Assessor member of the Appeal Panel, stating that “another doctor might provide a more accurate assessment.”
Ms Robson submitted that there were errors in the assessment of the PIRS tables for self-car and personal hygiene, social and recreational activities, social functioning, concentration, persistence and pace and employability. Ms Robson’s appeal submissions are based substantially on her new statement.
In reply, the Police Force submitted that Ms Robson’s statement should not be admitted and that it adds nothing to the statement that was provided with the ARD. It said that the Medical Assessor had not erred in his assessment.
Neither party made any submission about the Medical Assessor’s allowance for the effects of treatment.
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 Ms Robson to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by them before that medical assessment.
Ms Robson seeks to rely on a statement dated 11 July 2024. She said that the Medical Assessor declined during the consultation to allow her to elaborate on examples and she sought provide that information in her statement. She said that the evidence should be admitted because the Medical Assessor conducted the interview in an unprofessional manner which led to an inaccurate report.
The Police Force opposed reliance on the statement because it provides information that Ms Robson had every opportunity to provide before the assessment and merely suggests her dissatisfaction with the assessment.
That submission is well made. The only statement from Ms Robson in the file is dated 29 November 2022 and unlikely to reflect Ms Robson’s circumstances at the time the ARD was filed in April 2024.
The requirement to provide a statement of a worker’s evidence applies in permanent impairment compensation proceedings in the same way as any other claim. The presence of an accurate and up to date statement assists the Medical Assessor to prepare for the examination. Clause 21 of Procedural Direction PIC 3 provides that “the timely and effective resolution of matters before the Commission requires that the statements provided by parties contain all appropriate and relevant facts, together with a sufficiently detailed history.”
We determine that the statement should not be received on the appeal. It has no probative value and its admission is precluded by authority.
In Petrovic v BC Serv No 14 Pty Limited,[1] Hoeben J dealt with the ground of appeal in s 327(3)(b) and observed that if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
[1] [2007] NSWSC 1156 at [31].
In Lukacevic v Coates Hire Operations Pty Limited,[2] 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.”[3]
[2] [2011] NSWCA 112.
[3] At [78].
Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[4] His Honour said:
“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.”
[4] At [100].
In State of New South Wales v Ali[5] Harrison J stressed that fresh evidence is not evidence which could have been obtained when the ARD was filed but which was not provided. His Honour said:[6]
“First, the information … is neither additional nor relevant as properly understood. The expression ‘additional relevant information’ contemplates or anticipates a qualitative addition to the information otherwise previously available. It is not concerned with the information being merely quantitatively different, in the sense that there is more of the same. That is made plain by the words in parentheses, which emphasise that the additional relevant information must also qualify as information that could not reasonably have been obtained before the medical assessment appealed against. As a matter of plain language, that does not mean or refer to something that could not have been obtained simply because it came later in time. Everything that occurs later than an earlier event is by definition additional in a temporal sense. That is obviously so in the present case, in which the so-called additional relevant information consists of the investigation reports, which uncontroversially ‘could not reasonably have been obtained ... before’.”
And:[7]
“Section 327(3)(b) limits that right of appeal to circumstances where additional relevant information is available but only if the additional information was not available to, and could not reasonably have been obtained by, the plaintiff before the medical assessment appealed against. That clearly anticipates the existence of a provable state of affairs at the time the decision is made. Section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed.”
[5] [2018] NSWSC 1783.
[6] At [32].
[7] At [39].
All of the material on which Ms Robson seeks to rely was available to her before the medical assessment and could reasonably have been obtained. No reason has been proffered for the failure to include it in an up to date statement when the ARD was filed. The information does not fall within s 327(3)(b) merely because Ms Robson is aggrieved about the examination and the assessment made.
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 below.
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[8] 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.
[8] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[9] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[9] [2021] NSWCA 304 at [26].
We note that there is very little evidence in the ARD and Ms Robson did not rely on any reports from her treating doctors. That omission is common in matters commenced as claims for permanent impairment compensation only. The only report on which Ms Robson relied was that of Dr George dated 16 August 2023. A proper assessment requires information which describes treatment and the progress of the injury and recovery over time. The omission of clinical material is corrected in the Reply to a limited extent.
The MAC
The Medical Assessor set out a history of the onset of the injury and Ms Robson’s domestic and financial circumstances. He said that she left her de facto relationship in February and relocated to the Central Coast in January 2024. Ms Robson ceased taking escitalopram in December 2023 and decided to forego anti-depressant medication.
The Medical Assessor set out Ms Robson’s present symptoms including:
“She felt stigmatized for being off work due to her close involvement with the community. However, she now feels better about herself and is no longer criticizing herself for being off work. She feels anonymous on the Central Coast and says this has significantly improved her mood. She mentioned feeling happy, excited and focused on the future. She denied suicidal thoughts. She is making plans and is more motivated, such as suggesting to her son that they should take the dogs to the park for a walk. Additionally, she booked herself into acupuncture for her neck pain and has started engaging in self-care activities. She has been sleeping well for the most part and said she had not had work or trauma-related dreams or nightmares recently.”
He described Ms Robson’s general health, including that she had reduced her alcohol consumption and felt in control of it since January. He set out a detailed description of her social activities and activities of daily living.
Describing his mental state examination, the Medical Assessor said:
“… Throughout her history, she was pleasant, warm, reactive, cooperative, and frank. Her affect was reactive. Her speech was of normal rate, tone, and volume. Her mood was euthymic.
Thought content was realistic with no depressive distortion or significant trauma themes, provided she avoided particular locations. She denied hyperarousal and hypervigilance in her local area. She described chronic trauma-related hypersensitivity to particular locations and triggers in the … area and difficulties mixing with the local … community due to feelings of guilt and shame that she was no longer at work. She wanted to avoid reminders of work. She denied suicidal thoughts. There were no depressive themes, such as worthlessness or hopelessness. There was no evidence of psychotic symptoms. Her thoughts were realistic and future-focused, and her perspective and perception of threat were balanced and realistic.
She was alert and oriented, and I estimated her intelligence to be in the average range. Her cognition was not formally tested. There were no overt cognitive deficits during the interview. Her insight and judgment were intact. She opted to stop antidepressants in December, with no negative effects. In fact, her mental health has improved since.”
The Medical Assessor diagnosed chronic mild post-traumatic stress disorder. He said:
“She may have previously met DSM-V criteria for a major depressive disorder. Since relocating, there has been a marked improvement, and although she continues to have reexperiencing and avoidance symptoms cued by particular locations, her symptoms are generally in the subclinical range while she remains on the Central Coast, and she no longer meets the DSM-V criteria for a depressive disorder. Her mood is euthymic and there are no neurovegetative symptoms of depression.
She no longer meets criteria for an alcohol use disorder.”
With respect to consistency of presentation, the Medical Assessor said:
“Ms Robson presented as a consistent historian. There was no apparent exaggeration, hyperbole or malingering. She was a frank and open historian. Her presentation was consistent with the mechanism of injury and her mental state examination.”
The Medical Assessor commented on the other evidence in the file. He assessed Ms Robson in class 1 for travel and there is no appeal in respect of that assessment.
We have considered the PIRS tables in respect of which Ms Robson appeals below. Generally, we point out that assessment in class 1 is appropriate where there is “no deficit or minor deficit attributable to the normal variation in the general population”. It is important to remember that the PIRS recognises that there a variety of conduct which can be described as normal.
Dr George assessed Ms Robson at the request of her solicitors in August 2023, 10 months before the Medical Assessor. At that time she was still drinking heavily and taking medication and she had not moved to the Central Coast. He assessed 24% WPI.
Dr Malik saw Ms Robson for the Police Force in March 2024. He said she told him that she considered her mental health was improving, she was feeling positive and moving for a fresh start. He said that Ms Robson’s condition had not reached maximum medical improvement and that her condition was likely to change over the next six months.
Self care and personal hygiene
The Medical Assessor assessed Ms Robson in class 1 because she is independently managing her self care and personal hygiene without significant deficits. In the body of the MAC he recorded:
“She showers daily and brushes her teeth twice daily. She also stays on top of her housework, which she said she is quite pedantic about. She had her eyebrows done two weeks ago.
She said she is eating well…”
The Medical Assessor described Ms Robson’s eating habits in some detail.
Ten months earlier, Dr George assessed Ms Robson in class 3, having obtained a quite different history. Dr Malik recorded that Ms Robson’s self care was improving but still not back to baseline.
The Guidelines set out the key principles of assessment[10] including that the Medical Assessor is to undertake a clinical assessment of a worker on the day they present for examination, taking into account the medical history and all available relevant medical information. Based on the history the Medical Assessor obtained – including an improvement since Ms Robson moved to the Central Coast – assessment in class 1 was appropriate.
[10] Paragraph 1.6.
Social and recreational activities
The Medical Assessor assessed Ms Robson in class 1, saying:
“No deficit or a minor deficit attributable to the normal variation in the general population. She socialises regularly and has no concerns about her capacity to socialise in various venues. She enjoys various recreational activities, including walking her dogs on the beach, gardening, doing projects around the home, and spending time with friends and neighbours. She has no concerns about her capacity to cope with larger-scale social events if required.”
In the body of the MAC he said:
“She has good relationships with her neighbours. She has owned her house for 24 years and developed strong connections. She will take her ute and gather wood in the forest with a neighbour. She takes a neighbour to the bowling club for chicken schnitzel night. She maintains connections with her Moree friends via FaceTime.”
And:
“She said she has no problems going out locally because she is anonymous. She is happy to use the self-checkout. She comfortably shops at the local Coles. She assists her neighbour to get to the local Woolworths and the chemist without problems. She goes to the local bowling club every two weeks for schnitzel night. She goes out with a friend for brunch at a café up the road. She has been to a café close to Bunning several times. Her sister visited for the weekend two weeks ago and went to the Tuggerah smokehouse. She is out with someone at least once a week.
Due to a knee injury, she has been less physically active. She takes her five dogs to the beach or to the park.”
The Medical Assessor’s assessment in class 1 is not a demonstrable error, based on the history he obtained. The history that the Medical Assessor obtained is of a relatively limited social life which may be less than Ms Robson’s pre-injury level of functioning. It is apparent that Ms Robson’s circumstances have improved since moving house. She is able to undertake activities without the support of another person and she has recreational pursuits. An outing with another person on a weekly basis is consistent with the variation in the general population.
Social functioning
Assessing Ms Robson in class 1 the Medical Assessor said:
“Although Ms Robson separated from her partner, she has had no difficulty forming and sustaining other relationships and maintained an amicable relationship with her ex-partner. She has close friendships lasting years and regularly spends time with friends. She has a good relationship with her son. She is in regular contact with her daughter and grandchildren.”
The facts set out in the history obtained by the Medical Assessor do not support assessment in class 1. Though Ms Robson has separated amicably from her partner, she has moved away. That of itself warrants assessment in class 3. The rating is reinforced by the fact that Ms Robson’s existing friendships are impacted by her move to the Central Coast.
Concentration, persistence and pace
We set out the description of the Medical Assessor’s mental state examination above. For some of the PIRS tables, the Medical Assessor’s opinion is formed mainly from a worker’s physical appearance and the history that they provide. Table 11.5 assesses a worker’s ability to maintain concentration and persist with cognitively demanding tasks and the pace of their cognitive processes The assessment under this table is different to the others because the consultation allows the Medical Assessor to form his or her own opinion as to the worker’s ability to concentrate and respond during the examination and his findings on the mental state examination are relevant. The consultation is itself a cognitively demanding task.
The Medical Assessor assessed Ms Robson in class 1 because:
“There was no deficit or minor deficit attributable to the normal variation in the general population. Ms Robson denied any significant problems with her concentration, persistence, or pace. She has completed projects and followed instructions without difficulty. She has no intention of returning to study as she considers herself retired.”
In the body of the MAC he said:
“She assembled an item from IKEA, an eight-cube bookcase. She told me she thrived on it. She had no problem constructing it or following the instructions and did so without frustration. She said she was methodical and thorough. She reads a chapter of her book every night, most recently ‘Cattlemen in Pearls’.”
The Medical Assessor’s assessment was correct.
Employability
The Medical Assessor assessed Ms Robson in class 3, saying:
“Ms Robson cannot work in the same position at all. She could perform less than 20 hours per week in a different position requiring less skill or that was qualitatively different, particularly with no trauma exposure. She has no intention of returning to the workforce and considers herself retired.”
Ms Robson’s submission that she should be assessed in class 5 is based only on the facts that Drs George and Malik said that she has no capacity for work and that is her own belief. Ms Robson’s own belief is not relevant, especially as she told the Medical Assessor that she considers herself retired. Dr George examined Ms Robson when her circumstances were different. Dr Malik declined to make an assessment because he did not believe that Ms Robson’s condition had not reached maximum medical improvement and anticipated the diminution in symptoms Ms Robson has experienced since moving to the Central Coast.
The history taken by the Medical Assessor supports assessment in class 3. Ms Robson is able to drive and is able to care for and assist others. That capacity is consistent, for example, with the ability to perform part time work in the disability sector. The Medical Assessor’s assessment does not disclose error.
Conclusion
Neither party appealed with respect to the allowance for the effects of treatment which the Medical Assessor made.
When the scores as we have amended them are arranged in ascending order as required by paragraph 11.14 of the Guidelines they are: 1, 1, 1, 1, 3 and 3. The total is 10 and the median score is 1. Under Table 11.7, the aggregate score converts to 2% WPI. When that is combined with 3% for the effect of treatment, Ms Robson’s total WPI is 5%.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 June 2024 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: | W3407/24 |
Applicant: | Mel Robson |
Respondent: | State of New South Wales (NSW Police Force) |
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 Clayton Smith 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 NSW workers compensation guidelines | 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) |
| Psychological injury | 19.9.22 | Chapter 11 | N/A | 5% | Nil | 5% |
| Total % WPI (the Combined Table values of all sub-totals) | 5% | |||||
0
5
0