Secretary, Department of Planning, Industry and Environment v Dixon
[2024] NSWPICMP 131
•11 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Planning, Industry and Environment v Dixon [2024] NSWPICMP 131 |
| APPELLANT: | Secretary, Department of Planning, Industry and Environment |
| RESPONDENT: | Mark James Dixon |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 11 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer from 15% claim for psychological injury; whether obvious mathematical error should be resolved in one party’s favour or the other; whether adequate reasons were given for the categories assessed in the psychiatric impairment rating scale (PIRS) chart; whether subsequent traumas had been properly considered; Held – mathematical error probably amenable to section 325(3), but adequate reasons not given for the PIRS impairments, and Medical Assessor misunderstood effect of employer’s qualified expert regarding subsequent traumatic events, therefore re-examination conducted; Medical Assessment Certificate confirmed: observations about the effect of Secretary, Department of Education v Johnson on assessment of subsequent injuries. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 March 2023, Secretary, Department of Planning, Industry and Environment, the appellant employer, 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 22 February 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, 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 20 June 2022 Consent Orders were made and on 23 June 2022 the delegate of the President referred this matter to a Medical Assessor seeking a WPI assessment from a psychiatric/psychological disorder that occurred on 6 March 1994.
Mr Dixon was employed by NSW Fisheries Department when on the date of injury he was assaulted by a number of men in the course of his work. He was struck multiple times by sticks, wood and a knife. In fear for his life, he leapt off a bridge and swam away. His assailants were later shown to be linked to organised crime and Mr Dixon received multiple death threats.
In 2006 he was involved in a violent incident whilst working at RailCorp.
In 2014 he was the victim of a road-rage assault.
The Medical Assessor certified 15% 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 employer did not request that Mr Dixon be re-examined by a Medical Assessor who was a member of the Appeal Panel. However, on finding that the Medical Assessor had fallen into error, a re-examination became essential in order to properly assess the worker’s entitlement.
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
Medical Assessor Nick Glozier of the Appeal Panel conducted an examination of the worker on Wednesday 13 December 2023 and reported to the Appeal Panel.
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 which 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 took a consistent history of the subject injury, which we have referred to under Relevant Factual Background, above.
As to the templated heading “Details of any previous or subsequent accident, injuries or condition” the Medical Assessor said:[1]
“In 2006 there was a violent incident at Railcorp which exacerbated his symptoms for a period of time. In 2014 he was victim of a road rage assault which again exacerbated his symptoms for a period of time.”
[1] Appeal papers page 14.
In considering the other opinions before him at [10c] The Medical Assessor said:[2]
“Dr Barrett diagnosed PTSD. I agree with diagnosis. She assessed WPI at 15% which I
agree with. I disagree with adjustments. Treatment effect has been minimal. The 2
further traumatic events did not significantly permanently alter the course of the illness,
they were short lived exacerbations.
Dr Rastogi- agree with diagnosis. We differ with respect to travel, concentration andadaptation by 1 point, as did Dr Barrett. As above I agreed with assessment of Dr Barrett.”
[2] Appeal papers page 15.
The psychiatric impairment rating scale (PIRS) certificate was as follows:
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Reduction in ADLs and cooking
Social and recreational activities
3
Has withdrawn from social and recreational activities
Travel
1
Is able to travel independently.
He travelled overseas independently.
Social functioning
2
Family relationships are strained but he is “working on them” there has been separation from wife
Concentration, persistence and pace
2
Subjectively impaired concentration
Employability
4
Is currently severely impaired and in receipt of DSP.
He is able to live independently and organise finances, appointments and travel
SUBMISSIONS
Appellant employer’s submissions
The appellant employer submitted that the Medical Assessor had fallen into error in his calculation of the median class score. This was because he had inadvertently entered the wrong score in his calculations at the foot of his PIRS table by assessing one class as a “3” instead of “2”. That had enabled the Medical Assessor to arrive at a median class of 3, which totalled an aggregate score of 15 which, under table 11.7 of the Guides, equated to 15% WPI.
If the values ascribed in the PIRS table had been properly calculated, the aggregate score would have been 14, which would have given an entitlement of 7% WPI in class 2 rather than a 15% in class 3 which was allowed.
The second ground advanced was that the Medical Assessor had not provided adequate reasons for his classifications under the categories within the PIRS score of self care and personal hygiene, social and recreational activities and concentration, persistence and pace.
We were referred to s 325 of the 1998 Act and it was submitted that the Medical Assessor had not complied with s 325(2)(c) and (d).
With regard to self care and personal hygiene it was submitted that the Medical Assessor had referenced only a deduction in the activities of daily living and cooking, but had not made any explanation within the body of the MAC.
It was submitted that where the most recent opinion (by Dr Barrett) was 2.5 years out of date, the Medical Assessor was obliged to set out the observations he made of Mr Dixon in order to substantiate his classification. We were referred to Ferguson v State of New South Wales[3] the often-cited dicta of Campbell J as to the pre-eminence of clinical observations.
[3] [2017] NSWSC 887.
In the category of social and recreational activities, it was argued that the Medical Assessor did not give sufficient details as to why he found that Mr Dixon had withdrawn from “such activities”. It was submitted that there was no explanation as to precisely what activities he had been doing, nor the nature of his withdrawal from them.
Regarding the category of concentration, persistence and pace, the Medical Assessor had not explained why he found that a class 2 category was appropriate beyond saying “subjectively impaired concentration”. The Medical Assessor had failed to refer to any facts or history nor had he given any adequate reasons in that regard.
The appellant employer submitted that it was “incumbent upon the Medical Assessor to set out the reasons for his assessment and the facts upon which that assessment is based.”
Ground 3 of the appellant employer’s submissions related to the finding by the Medical Assessor that the subsequent traumas experienced by Mr Dixon did not significantly or permanently alter the course of the illness, but were rather short-lived exacerbations. Again, it was argued that the Medical Assessor’s reasons for so finding were not adequate.
The appellant employer argued that there was a marked contrast with the opinion of
Dr Melissa Barrett, who had been qualified by the employer. Dr Barrett had noted that psychologist Stuart Mann had reported that Mr Dixon had been “in remission” for a decade, and that psychologist Ms Braithwaite had reported that in 1996 no further treatment for post-traumatic stress disorder was required “unless his symptoms returned.”Dr Barrett had assessed a 13% WPI, and explained in detail her reasoning.
We were referred to Vegan, which we have referred to at the outset of these reasons, and the circumstances in which reasons are expected to be given by a Medical Assessor.
The respondent
Mr Dixon set out the relevant factual matters.[4] He referred to the Medical Assessor’s comments at [10c] of the MAC and submitted that it was clear that the Medical Assessor agreed with Dr Barrett’s diagnosis of a post-traumatic stress disorder, and with her WPI assessment at 15%.
[4] Appeal papers page 8.
Mr Dixon submitted that the only point of difference between Dr Rastogi and the Medical Assessor was that Dr Rastogi differed by one point in their WPI assessments.
Mr Dixon kindly set out a table of the different assessment by the Medical Assessor and the two medico-legal experts. Mr Dixon submitted that although the Medical Assessor scored a class 2 for social functioning, that had been a typographical error. This was because in the ascending order of classes set out by the Medical Assessor, he allowed a class 3 for social functioning in his calculation.
Mr Dixon submitted that the typographical error was clear because the Medical Assessor had agreed with Dr Barrett’s assessment. Moreover, the Medical Assessor disagreed with
Dr Rastogi’s assessment by one point. It was submitted that this explanation was the only logical explanation for the inconsistency between the rating in the PIRS table and the rating that appeared in the score that created the median class.In relation to the appellant employer’s second ground of appeal, Mr Dixon submitted that the challenge to the categories itself of self care and personal hygiene, social and recreational activities and concentration, persistence and pace were misconceived.
Mr Dixon argued that the Medical Assessor clearly accepted Dr Barrett’s assessment with the exception of the adjustments that Dr Barrett made. It was equally clear that he accepted Dr Rastogi’s assessment with the exceptions indicated above.
Mr Dixon submitted that the explanation was in effect self-evident and there was no need for the Medical Assessor to give any further reasons than he already had. Mr Dixon argued that it was only where there was a “clear and substantive” difference of opinion that detailed reasons were required.
Mr Dixon also observed that in the final analysis the appellant employer was seeking to cavil with its own expert, as Dr Barrett scored the same for each class as had the Medical Assessor.
With respect to ground 3, Mr Dixon submitted that this ground was misconceived. The Medical Assessor was correct to say that there had been no previous injury or pre-existing condition or abnormality at the time of his injury in 1994.
Mr Dixon noted that the Medical Assessor had disagreed with Dr Barrett’s approach because the incidents Mr Dixon referred to occurred after the subject injury. They therefore were not amenable to the provisions of s 323, and Dr Barrett’s approach was therefore “fundamentally flawed”.
Alternatively, Mr Dixon submitted that the two incidents in 2006 and 2014 which the Medical Assessor said exacerbated symptoms “for a period of time” did not give rise to any need for the “adjustments [Dr Barrett] made concerning the subsequent incidents”.
DISCUSSION
The psychiatric impairment rating scale (PIRS)
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[5] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[5] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[6]
[6] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[7] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[8]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[7] [2017] NSWSC 887 (Ferguson).
[8] [2015] NSWSC 633 (Jenkins).
In Glenn William Parker v Select Civil Pty Ltd,[9] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[9] [2018] NSWSC 140 (Parker).
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a. if the categorisation was glaringly improbable;
b. if it could be demonstrated that the AMS was unaware of significant factual matters;
c. if a clear misunderstanding could be demonstrated; or
d. if an unsupportable reasoning process could be made out.
It is common ground that there has been a typographical error in the calculation of the median class score. Chapter 11.14 of the Guides provides:[10]
“Determining the Median Class Score
11.14 Each area of function described in the PIRS is given an impairment rating which ranges from class 1 to class 5. The six scores are arranged in ascending order using the standard form. The median is then calculated by averaging the two middle scores….”
[10] Guides page 57.
The Guides give examples where the third and fourth figures are averaged.
Chapter 11.16 provides:
“11.16 Each median class score represents a range of impairment, as shown below:
Class 1 = 0–3%
Class 2 = 4–10%
Class 3 = 11–30%
Class 4 = 31–60%
Class 5 = 61–100%”In the present case the Medical Assessor calculated that the median class score was ‘3’ because the third and fourth numbers in that ascending scale were ‘2’ and ‘3’. However, the calculation of the scores as listed in the PIRS should have been ‘2’ as the middle two numbers were ‘2,’ as follows:
1, 2, 2, 2, 3, 4
The aggregate score impairment, which under Chapter 11.17 simply requires each score to be added together, would be 14. The Conversion Table 11.7 contained in Chapter 11.20 of the Guides demonstrate that an aggregate score of 14 for a median class 2, is 7%.
We note the submissions by Mr Dixon that the proper interpretation of the inconsistency should be that the Medical Assessor’s typographical error in fact occurred when he inserted the number “2” next to the Social Functioning Category of the PIRS, instead of a ‘3’. As we understood the argument, this was because the reasons given by the Medical Assessor were compatible with a class 3 impairment.
The descriptors for this category, contained at Table 11.4 of the Guides, are as follows:
“Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”The short description given by the Medical Assessor was:
“Family relationships are strained but he is “working on them” there has been separation from wife.”
Bearing in mind the provisions of Chapter 11.12 that these descriptors are not criteria but simply examples, the reasons given by the Medical Assessor are ambiguous. The strained relationships are a class 2 descriptor whereas the separation from his wife is a class 3 descriptor.
The resolution of the ambiguity, Mr Dixon claimed, could be found in the Medical Assessor’s apparent adoption of Dr Barrett’s opinion. Dr Barrett and Dr Rastogi both assessed a class 3 impairment for this category. We appreciate the force of that argument, but there are other issues that prevent us from resolving the dispute so easily. It remains a possibility that the error was because the fourth number which the Medical Assessor used should have been a ‘2’ when he used ‘3’ to calculate the appropriate class pursuant to Chapter 11.16.
In any event the face of the certificate demonstrates that incorrect criteria have been applied.
The second ground raised by the appellant employer related to the reasoning given by the Medical Assessor for his assessment.
Section 325 of the 1998 Act provides relevantly:
“(1) The medical assessor to whom a medical dispute is referred is to give a certificate (a ‘medical assessment certificate’ ) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the President and is to--
(a) set out details of the matters referred for assessment, and
(b) certify as to the medical assessor's assessment with respect to those matters, and
(c) set out the medical assessor's reasons for that assessment, and
(d) set out the facts on which that assessment is based.
(3) If the President is satisfied that a medical assessment certificate contains an obvious error, the President may issue, or approve of the medical assessor issuing, a replacement medical assessment certificate to correct the error.”
Whilst the first ground might have been dealt with under ss (3), the second ground could not. We have reproduced the PIRS form in order to demonstrate, with respect, the paucity of reasoning given by the Medical Assessor. The reasons given in the PIRS rating form are succinct to the point of being inadequate, and offend the High Court dicta in Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, where the Court, (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) said at [48]:
“[48] The reasons that [the Victorian equivalent legislation] obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself’.”
In Western Sydney Local Health District v Chan Adams J said:[11]
“In Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, the High Court considered the task of a Medical Panel responsible for determining a medical dispute ….. The Medical Panel’s task in that case is analogous to the role of the AMS under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute…”
[11] [2015] NSWSC 1968 at [13].
A Medical Assessor is thus required to set out his actual path of reasoning by which he reached his assessment. We have above referred to Vegan and note that, where more than one conclusion is open, as it usually is when assessing the respective applicable class in each of the PIRS categories, some explanation for a Medical Assessor’s conclusion is necessary.
The reliance by Mr Dixon on the correctness of the opinion of one of the experts is misconceived, with respect, as is the submission that a Medical Assessor relied particularly on one or other or both of those assessments. The function of a Medical Panel,[12] the Court in Wingfield held, was to form and give its own opinion by applying its own medical experience and expertise. It was not to choose between competing arguments nor to prefer one medical opinion over another. A Medical Assessor was thus required to give adequate reasons to explain how he had applied his expertise to reach his conclusions.
[12]And therefore a Medical Assessor in accordance with Chan.
It is, with respect, insufficient to draw a conclusion without referring to the facts and circumstances on which it is made. Thus, in assessing self care and personal hygiene, the Medical Assessor was required to explain what the “reduction in ADLs and cooking” was. The explanation did not have to be extensive or detailed, but it needed to inform at least in outline what he was referring to, so the parties could assess his reasoning.
Similarly, it was not sufficient to simply declare that Mr Dixon had “withdrawn from social and recreational activities”. That finding begs the question as to what social and recreational activities the Medical Assessor was referring to.
We have already referred to the deficiencies in the reasoning regarding social functioning when considering ground one. In the category of concentration persistence and pace, the Medical Assessor’s reasoning was difficult to follow. “Subjectively impaired concentration” did not explain why a class 2 rating had been given. It suggested perhaps that Mr Dixon had been inconsistent in presentation, but then the Medical Assessor had found that there were no such inconsistencies.[13]
[13] Appeal papers page 14.
For these reasons the Medical Panel determined that a re-examination was necessary to properly assess Mr Dixon’s condition in any event.
With regard to the appellant employer’s third ground of appeal as to the significance or otherwise of Mr Dixon’s subsequent traumatic events, it seems that neither the Medical Assessor nor Mr Dixon understood the purport of the challenge.
Dr Barrett gave a considered and thoughtful opinion regarding these events. Indeed she constructed a hypothetical PIRS chart to establish the level of Mr Dixon’s psychological impairment prior to the first of these subsequent traumas in 2006 when he witnessed an assault whilst working for RailCorp NSW. The result would have been an assessment of the WPI caused by the subject injury, which she assessed at 11%, to which she added a further 2% for the effects of treatment which had enabled him to continue working. This gave a total of 13%, which she stated in her report of 6 July 2020.[14]
[14] Appeal papers page 274.
Had her analysis been legally correct, her finding would have disqualified Mr Dixon from any entitlement. In any event, the Medical Assessor disagreed, stating that “treatment effect had been minimal”. If the Medical Assessor had been correct, then Dr Barrett’s assessment of Mr Dixon’s WPI prior to his 2006 trauma would have been reduced to 11%, as the 2% for treatment effect would not have been available to him.
We would observe that Dr Barrett relied on contemporaneous evidence from Jennifer Braithwaite, psychologist, that Mr Dixon’s treatment goals had been achieved by
25 July 1996 and that Stuart Mann, psychologist, indicated in 2014 that Mr Dixon’s previous trauma symptoms had been in remission for a decade.[15] Dr Barrett said:“…Overall, however, I accept Mr Dixon’s history that there were persisting symptoms of PTSD, given the overreaction and incidents of excessive force in his subsequent role in RailCorp and his history of binge alcohol use which had resulted in driving under the influence charges. I accept Mr Dixon’s previously recorded history that he was concerned about the stigma of psychiatric illness and that if he continued treatment he would lose his job, likely leading to underreporting of his symptoms at the time.”
[15] Appeal papers page 270.
These comments, which we accept as being probable, solve the difficulty with this ground that would otherwise have arisen. The approach taken by Dr Barrett is not legally correct, with respect. What is required is an enquiry that was set out in Secretary New South Wales Department of Education v Johnson.[16] Dr Barrett’s opinion would satisfy the second point therein set out - that the 2006 and 2014 injuries exacerbated the 1994 injury. However, there is no basis for the reduction proposed by Dr Barrett, nor the approach she took of constructing a PIRS chart that restricted a WPI assessment to that existing prior to the subsequent traumatic events. If there were a causal connection, then the original employer remains liable for the whole assessment.
[16] [2019] NSWCA 321 at [70].
For these reasons the panel determined that a re-examination was necessary, and accordingly Mr Dixon attended on Medical Assessor Glozier on 15 December 2023 by video from Thailand, where Mr Dixon now lives. Medical Assessor Glozier’s report follows:
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-W3073/22 |
| Appellant: | Secretary, Department of Planning, Industry and Environment |
| Respondent: | Mark James Dixon |
| Examination Conducted By: | Professor Nicholas Glozier |
| Date of Examination: | 13 December 2023 |
Mr Dixon was unable to see me via the Teams platform although I was able to observe him, and otherwise the assessment proceeded without difficulty. He is living in Thailand in a property he owns there, having been in New South Wales for some months earlier this year for a hip replacement.
1. The worker’s medical history, where it differs from previous records
Mr Dixon confirmed the incident whilst working at Fisheries in 1994. He said he struggled afterwards and has remained somewhat symptomatic ever since although after some time he no longer had further treatment. He believed that he has declined over the years whilst at the same time spending many years “in denial” and not seeking treatment as much of his life deteriorated around him. It has been confirmed elsewhere that he also had some alcoholic-related problems, particularly binge-drinking, with sequelae such as DUIs, but never really recovered according to both himself, and as seen in the IMEs by Dr Rastogi and Barrett. He eventually left the Fisheries and joined RailCorp. He said he remained somewhat symptomatic there and again there were further incidents including another assault. He said this made things worse briefly but he did not view these assailants, whom he noted to be of South East Asian extraction, in the same way as those who assaulted him at the Fisheries, who he viewed as organised crime and far more dangerous. He further noted that this was a very significantly different quality of assault where he felt his life was seriously threatened, involving armaments and he believes he was lucky to escape with his life, unlike the subsequent incident at RailCorp. He said today that he left RailCorp because of his back injury. This appears to be confirmed by the reports from his then-GP, Dr Kemp, and also by the concurrent neurological and clinical neurophysiological letters, e.g. Associate Professor Heard from that period.
He stated that he still remained somewhat symptomatic after leaving RailCorp and was leading an increasingly isolative life. However he had met his Thai wife who he remains married to. They lived in Hornsby for some years but he said he did little, seeing fewer friends, and did not return to work. They would travel to and from Thailand and bought the property there around 2012. In 2011 he moved up to Coffs Harbour. He said his father had passed away and his mother lived in an isolated property. He was able to go and live with her on the property which he said was a long distance from anywhere. He said that during this period on the property they had solar power, could use diesel for generators and he felt quite self-sufficient. As a result he felt safe as he would at times experience a degree of hyperarousal, re-experiencing phenomena and avoidance even then, with limited human interaction many of these symptoms were somewhat quiescent. Apparently his wife remained in their home in Hornsby for some time, having tried to live the isolated existence but was unable to tolerate this.
He was very clear that the road rage incident in 2014 was not a major life-event in hindsight, or possibly even at the time. He said that whilst coming back from town, he did not recognise a driver signalling him and so did not stop when this guy came from behind him. Subsequently a rail crossing they had what he describes as ‘a blue’ and both ended up in hospital. He noted that he had fractured ribs, abrasions and was soon discharged but seemed almost pleased today that he had inflicted similar injuries on the much-younger other person who he described as ‘a meth-head.’ Again, and as noted elsewhere, this appeared to temporarily exacerbate his symptoms in that he knew this person must live locally because of him living in such an isolated area. He told me today that he saw Dr Mann as a part of the process of accessing counselling and compensation and was encouraged to do so by the Victims of Crime Unit. He said he saw him mainly for access to criminal compensation through the courts, and barely engaged with treatment. Following his mother’s death, he then left that property, moving back to Gosford where he had some family and was closer to his wife. They appeared to already have been living a somewhat separate existence by that time. I note elsewhere the comments on the development of his wife’s early dementia.
NB. I am not entirely sure about the timelines of some of these home moves but this appears to corroborate the information elicited in the history today and that in the notes. Mr Dixon was somewhat aggrieved at any attempt to understand these timelines as he saw this as being ‘cross-examined.’
He suggested that because he still remained isolated with few friends and had come to realise the impact of his drinking and behaviour on others, he sought treatment at the Read Clinic in 2019. The GP referral to the Read clinic was for symptoms arising from the initial assault as a Fisheries inspector. The notes from the clinic commencing in February 2019 corroborate that, with this being the focus of the traumatic symptomatology (although the notes from the Read Clinic are, ironically, somewhat hard to read). He told me today that he only saw clinicians there a few times because he was unable to afford to carry on seeing them and so initiated this workers' compensation claim to access further care. The notes do indicate that the symptoms were present and fluctuant over the time, with at times sub-clinical symptoms, but at other times more psychologically-manifest symptoms. The notes from the Read Clinic also confirm that the road rage incident ‘brought back the memories of Triad incident.’2. Additional history since the original Medical Assessment Certificate was performed
As above, Mr Dixon is currently living in Thailand whilst his wife lives with her sister in Hornsby. He said she has some problems with dementia, rheumatoid arthritis, a thyroid condition and has a supportive family there. He described their difficulties living together as being both due to his condition and behaviour, as well as her health conditions. He suggested that she does want to live with him but won’t leave until he is better, although was at pains to point out that there was no violence.
Earlier this year he came to Newcastle for a further total hip replacement (he had had another previously). It was difficult to understand what happened during this time but he said at one stage he was living with his daughter and then started living in his car for some time in Newcastle. He might have stayed overnight with a couple of friends from his previous circle but then changed this and said he only sent a couple of messages to them at times and rarely saw them. He said he would ‘just pop in and say hello.’ He said he had tried to rent when back but the rental prices were too high and he could not rely upon family members or others to look after him. However he managed his hip replacement and some subsequent rehabilitation therapy. He then moved back to Thailand.
There he lives on his own but recently has employed a woman, possibly a cousin of his wife – or certainly recommended by her – who comes in and does some cleaning and provides some meals for him. He says she comes in 2 or 3 times a week. He says he is ‘not a bad cook,’ and can do so but once left the gas on and melted a pot, so prefers not to so much. Also she is able to provide good healthy cheap meals for him. He can go shopping and to the local markets without any problem to buy other things that he needs. Despite the initial assault by South Asian criminals, he says he does not have any problems nor is triggered by other South Asian people. He believes that he is a good judge of people and can spot the difference between ‘Asian mafia’ and others. There will be times when he sees reports of such gangs in the paper or on TV which can trigger memories but otherwise the memory of the incident has become somewhat blurred over the years.
He feels safe in Thailand.
For his wellbeing he tries to manage his mental health through exercise and, in part, diet, although these are not very consistent. He has built a small gym in his house and has always been into fitness. He does two sessions a day, up to 90 minutes in the morning and 60 in the evening and may train harder when he feels worse. This also interacts with his sleep quality and duration, whereby if he does not do this he has poorer sleep. He says his sleep can be quite variable with no particular bed time. He has few demands so can sleep in and/or go to bed when he feels like. Before this he showers, cleans his teeth, watches TV and at times has some onset insomnia. He used to have nocturnal intrusive problems with flashbacks, waking aroused but these are rare now. Once off he generally sleeps through now, although the timing of waking in the morning can be variable.
He has tried meditating a few times but is not able to stick to this. He is able to travel around locally as and where he needs, fly trans-continentally on his own and also travel around areas of New South Wales such as going to see his wife when he was here, his daughter and others. He does little socially in Thailand with no friends there. He continues to follow the Cronulla Sharks and will watch games, enjoying this, although is less fanatic than he used to be. He is able to use computers and IT as needed, and described how he looked up reviews of me online before this assessment.
His anxieties are symptomatically variable. He describes intermittent episodes of what he calls “panic” but appears to be at most heightened levels of anxiety. These can be associated with a few days of becoming more withdrawn, isolative, low, eating less, not looking after himself so much and ruminating over negative thoughts about what happened to him with the Triads, what he has done with his life and the need to move on. He can be triggered into these by the news or other media. He says that with his isolated lifestyle in a village in Thailand, he has little exposure to other potential triggers and so does not experience significant hyperarousal and his avoidance is somewhat entrenched.
He has dramatically reduced his alcohol, only drinking a few beers when he watches a football game. He smokes between 10 and 30 cigarettes a day, does not use either prescribed or illicit cannabinoids, and denied the use of any other illicit drugs.
He currently takes no medication, does not see any psychologists or any other specialists and is supported by the Disability Support Pension.3. Findings on clinical examination
Mr Dixon was slim and well-kempt although his room appeared somewhat messy behind him. He was somewhat wary of the assessment process and reluctant to let me explore details, at times suggesting that my attempt to evaluate consistency and establish coherent timelines was ‘cross-examining him.’ Although he reported that his memory is not as good as it used to be, he showed excellent focus and concentration throughout, interrogating without any notes previous reports made about him, what people had said, and displayed a rather good working and verbal memory. He further challenged aspects of the assessment and was a detailed, if not always totally consistent, historian. He describes a generally dysphoric mood, some reduced enjoyment but not complete anhedonia. He remains somewhat avoidant. There are reduced, but still ongoing, episodes of intrusive recollections, almost entirely of the first incident with the Triads and he described subsequent incidents as not disturbing him or triggering intrusive recollections and even joked and laughed when talking about ‘the blue’ of the road rage incident. He does not have panics but has increased arousal at times which can be associated with short periods of reduced mood, isolation and decreased functioning.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Mr Dixon continues to meet criteria for Post-Traumatic Stress Disorder of a somewhat borderline clinical significance, given the very changed context of his life now, which has enabled him to avoid many triggers. From the description and reviewing the contemporaneous documentation, his condition would appear to have fluctuated on and off since the episode in 1994, with him being able to maintain work for some time although had some further trigger at least with an incident at Sydney Rail. He appeared to leave RailCorp due to physical injuries and then moved into a somewhat isolated (though with his wife living with him at times) and peripatetic lifestyle, focusing on avoidance and isolation. The description of the road rage incident appears to have led to some temporary exacerbation of his features. I note Stuart Mann’s description of him being completely in remission for some time prior, although this may well reflect the isolation of living on the distant rural property and not having any interactions, which in part reflect ongoing symptomatology of his PTSD, or potentially a gaming of the victim’s compensation process.
As such, I am persuaded – and Mr Dixon is quite clear – that he has never completely recovered, the further incidents were temporary aggravations and that his current state is still attributable to the first injury which appears to have been far more dramatic, life-threatening and frightening than any subsequent injury and that any others are on the causal pathway from that first injury to his current state.
The Panel felt that the class descriptors by Dr Chew did contain a demonstrable error in that he rated class 2 for Self-Care and Personal Hygiene, Social Functioning, and Concentration, Persistence and Pace, but then must have scored one of them as class 3 to arrive at the total of 15% within Table 11.8 and Table 2.
In terms of self-care, although he has recently employed a cleaner who will also provide some food, in part this appears to have been implemented following the total hip replacement that he had earlier this year and when returning was less able to care for his home, as well as the ability to employ people for very low wages who can provide such help and food. He said he is able to cook but has less interest in looking after his home, showers and trains regularly. There are periods when he has a few days or more when he does much less, far less training, and looks after himself worse which would accord with a class 2 impairment rated by the MA. In terms of concentration, persistence and pace, although he suggested his memory is not as good as it used to be, he displayed excellent focus and concentration in the assessment today although this was for highly-salient and probably over-rehearsed facts. Again, I can see no reason to disturb the MA’s rating of a mild impairment. He has however a moderately impaired social functioning. In some part the separation from his wife is attributable to his condition although they remain amicable and he goes and sees her when back in Sydney at her sister’s where she also receives care for her not-insignificant health conditions. He was supported by his daughter when back in Sydney and also saw a couple of friends although only briefly, with little other social interaction.
This would leave the PIRS table as:
Self-Care and Personal Hygiene – Class 2
Social and Recreational Activities - Class 3
Travel – Class 1
Social Functioning – Class 3
Concentration, Persistence and Pace – Class 2
Employability – Class 4This equates to a total of 15, with a median of 3 = 15%.
Signed: Professor Nicholas Glozier
Date: 3 January 2024
We adopt Medical Assessor Glozier’s report, which is in distinct contrast to the detail supplied by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 February 2023 should be confirmed.
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8
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