State of New South Wales (Fire & Rescue NSW) v Campton
[2025] NSWPICMP 77
•11 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Fire & Rescue NSW) v Campton [2025] NSWPICMP 77 |
| APPELLANT: | State of New South Wales (Fire & Rescue NSW) |
| RESPONDENT: | Andrew Campton |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 11 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant submits that the Medical Assessor erred in concluding that the appellant had reached maximum medical improvement (MMI) contrary to the weight of evidence; Held – Appeal Panel agreed; the worker was currently engaged in treatment which reportedly had improved his condition; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 November 2024, State of New South Wales (Fire & Rescue NSW) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor who issued a Medical Assessment Certificate (MAC) on 4 October 2024.
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;
· the MAC contains a demonstrable error, and
· the availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against) (s 327(3)(b))
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons we will explain more fully below.
Fresh evidence
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 by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a report of Professor Mattick dated 16 October 2024.
The appellant submits that the evidence is relevant to the issue in dispute, namely whether or not Mr Campton has reached maximum medical improvement (MMI). The appellant makes no specific submissions as to whether the evidence was not available and could not reasonably have been obtained other than to state that the report was obtained at the recommendation of Dr Hong and the first available assessment was arranged.
Andrew Campton (the respondent) objects to the admission of the report stating: “the medical Appeal process is not intended to be invoked simply because a dissatisfied party offers an additional forensic opinion.”
The respondent points out the chronology of events as follows:
“The s.66 claim was made on 20 February 2024.
The claim was declined by a notice dated 8 July 2024, citing the opinion of Dr Hong of 5 June 2024.
An appointment for an examination with Professor Mattick was notified on 12 July 2024.
The respondent accepts that this is correct although there is no evidence of same or indication as to why it was requested. Professor Mattick does not acknowledge the date that he was retained, nor the letter of instructions from Rankin Ellison. The appellant has not placed this information before the PIC.
The ARD was filed on 25 July 2024.
On 16 August 2024 the application was referred to the MA and both parties were notified of the examination with MA Mason appointed to take place on 16 October 2024.
Two features of this chronology are left unexplained by the appellant.
The first is why the appointment with Professor Mattick was not made earlier. The evidence does not disclose, but there is a reasonable inference that the respondent was at all relevant times in receipt of weekly compensation. If so, the appellant had a right to demand an examination by a psychologist for the management of the claim. If not, the report can only have been procured for the impermissible forensic purpose of resisting the s.66 claim in circumstances where it had already been declined on the basis of Dr Hong whose opinions were tendered in the Reply.
The appellant submits that the report was requested in accordance with the recommendation of Dr Hong.
There is no evidence that this is so and certainly no evidence that the respondent’s consent to attend was procured on the basis of assisting the appellant to supplement its forensic evidence for the impairment assessment. Even if this were the reason for requesting a forensic psychology report, the appellant does not explain why the report of Dr Hong of 5 June 24 was obtained 3.5 months after the claim was made.
From 16 August 2024 the appellant knew that Dr Mason’s medical examination would take place before that of Professor Mattick. It did nothing to resist or postpone the Medical Assessment. It does not explain why.”
The respondent adds:
“The medical Appeal process is not intended to be invoked simply because a dissatisfied party offers an additional forensic opinion. That cannot constitute additional relevant information.
The Medical Appeal Panel should reject the tender of Professor Mattick’s report on the basis that it does not satisfy the requirements of s.328.”
An appeal under s 327 is not an opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than a Panel being invited to decide an application afresh.
We agree with the respondent’s submissions regarding the proper application of s 327, particularly in light of the chronology of events outlined by the respondent.
The Appeal Panel determines that the evidence should not be received on the appeal for the reasons set out above.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in concluding that the appellant had reached MMI, contrary to the weight of evidence.
In reply, the respondent submits that it was open to the Medical Assessor to make the findings he did, and that no errors were made.
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 respondent was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury on 17 March 2023.
The Medical Assessor set out in detail the history surrounding the injury which we do not intend to repeat here, given the nature of the issue in dispute.
However, the Medical Assessor noted under this heading:
“When I asked about treatment he consulted his GP Dr Daniher who gave him a series of tests and questions. Before he saw Dr Daniher he had an accidental encounter with a friend who was discharged from FRNSW 2 years earlier. He said that friend described what happened to him and what his symptoms were. Mr Campton realised his symptoms were exactly the same. His GP referred him to psychologist Ms Liz Williams and he consulted with her every 3 or 4 weeks; he said he has had possibly 12 sessions. She initially let him talk and listen to him but has been doing eye movement desensitisation response therapy (EMDR) for the last 3 or 4 sessions and believes this has been helpful. When I asked how he found this to be helpful he said he has unburdened a lot of guilt and shame which has resulted in an increase in confidence and self-esteem so he feels better, but not completely better. He said he had not seen a psychiatrist other than for independent medical examinations.”
Present treatment was noted as follows:
“Attendance at the general practitioner every month and psychological consultations every 3 or 4 weeks. He is not using an antidepressant and would not do so because of side effects.”
Present symptoms were noted as follows:
“Mr Campton said he cannot concentrate and is a shell of a person. He is unable to multitask, has no confidence, is agitated and jumpy, startles easily and has difficulty sleeping. He said he is socially isolated and would rather be by himself. He mentioned he was unable to stay for very long at his father's funeral in January this year. He said he has no motivation or desire to do anything. He stopped going to the gymnasium and in fact has stopped doing everything. He described being cranky like a bear with a sore head, he is unable to sleep and has turned into a hermit. He has no desire to socialise. He does not go out to clubs or social gatherings or sporting events. He no longer attends weddings, work sendoffs or football games.
I asked him to describe his sleep and he said he goes to bed about midnight and takes between 30 and 60 minutes to get to sleep. He then sleeps for 3 or 4 hours and wakes up startled by nightmares, noises and bad dreams. He is unable to remember any of the dreams but he said he wakes up sweating in a flustered agitated state. He said he experiences flashbacks. When asked what these were he said a job he has attended at work comes into his mind; he confirmed it was a memory rather than a visual image and then added he can never remember his dreams. He then immediately told me he had a dream where he was walking down the street and a fire truck pulls up beside him.”
The Medical Assessor then turned to consider the impact of Mr Campton’s injury on his social activities and activities of daily living (ADL’s) which again we do not intend to repeat here.
The Medical Assessor then set out his findings on examination.
The Medical Assessor then summarised the injuries and diagnoses as follows:
“I have not diagnosed a separate major depressive disorder because he did not meet DSM-5 criteria. Any depressive symptoms are subsumed under the diagnosis of post traumatic stress disorder. I have also not diagnosed a separate alcohol use disorder because there is no medical evidence of excessive use of alcohol, such as raised liver enzymes, and his current consumption is not at diagnosable levels.”
When asked: “Have all body parts/systems stabilised/reached maximum medical improvement?” the Medical Assessor replied “Yes”.
At point 8(b) of the MAC the Medical Assessor states that the respondent has reached maximum medical improvement, without further comment.
The Medical Assessor then turned to consider the other evidence before him and said:
“Psychiatrist Dr Richa Rastogi provided an IME report dated 10 January 2024. She diagnosed a persistent post-traumatic stress disorder and an alcohol use disorder substantially due to cumulative exposure to traumatic events during his employment with FRNSW. She disagreed with the opinion of psychiatrist Dr Michael Hong. She assessed whole person impairment at 22% (232335).
Treating psychologist Ms Elizabeth Williams provided 3 reports in April and May 2023. She diagnosed PTSD, alcohol use disorder and major depressive disorder and provided trauma focused CBT and considered the use of EMDR. She recommended fortnightly sessions… I note that Mr Campton has refused to use antidepressants. Treatment with EMDR according to Mr Campton has occurred in the last 3 counselling sessions. (our emphasis).
Clinical record of psychologist Ms Elizabeth Williams indicates fortnightly treatment…
Psychological assessment report by psychologist Mr Alex Jenkins is dated 27th April 2023… He noted Mr Campton was reluctant to use psychotropic medication.
Psychiatrist Dr Michael Hong provided a further IME report dated 5 June 2024. He noted the claimant was using the antidepressant mirtazapine 15 mg… He continues to see his psychologist Ms Williams but EMDR had not been introduced… He did not believe maximum medical improvement had been reached because of the brief period of time on a low-dose of an antidepressant and incomplete psychological treatment. He believed he required psychiatric review. No whole person impairment assessment was provided…
I regard Mr Campton as having reached maximum medical improvement because he will not use antidepressant medication for philosophical reasons and will not attend a psychiatrist. He has had appropriate psychological consultation.”
The submissions
In addition to the matters referred to above, the appellant submits as follows:
(a) Dr Rastogi’s report dated 10 January 2024 states “he is seeing a psychologist every fortnight and is on Mirtazapine 15mg at night. He has found psychologist sessions have helped him reduce the anxiety.”
(b) In a report of 31 May 2023 Elizabeth Williams, psychologist, stated:
“…once Andrew has enough resources to cope with distress and manage a trauma-focused approach I will likely use eye movement desensitisation and reprocessing (EMDR) to reduce his symptoms of PTSD. I believe that Andrew would currently benefit from fortnightly sessions. It is hard to predict duration, however, Andrew’s trauma’s are numerous and significant and he has never attended therapy until this point. Andrew may require psychological intervention for 1-2 years.”
(c) The clinical records of Ms Williams note an attendance on 29 February 2024 which stated “Discussed starting EMDR when we return but empahsised [sic] the importance of regular sessions. Asked him to book in fortnightly.”
(d) Dr Hong provided a report dated 5 June 2024 which stated:
“Mr Campton continues to see Ms Williams, psychologist, and has had regular sessions over the last 18 months, usually every 2-3 weeks. He said they worked on trauma and learning strategies. I asked him whether he had discussion about EMDR or ‘eye-movement’ therapy. He does not recall this being mentioned. I asked him about things he learned. He said he learned relaxation, for example he would take a deep breath in, close his eyes and relax… Based on the available information, my view is MMI has not been reached, because:
• Mr Campton only commenced his first antidepressant medication in January 2014, there is reasonable benefit already and his alcohol intake has reduced since January.
• Mirtazapine 15 mg is a very small dose and typical doses are 30-60 mg.
• He said his GP had discussed psychiatrist referral but it is not clear whether this has happened yet.
• He has had some CBT and supportive counselling with his psychologist but he does not recall any specific trauma management strategies, aside from breathing exercises…”
(e) The Medical Assessor has erred in his finding that the respondent has reached MMI. The Medical Assessor recorded that the treatment with Eye Movement Desensitization and Reprocessing (EMDR) had occurred in the last three sessions with his psychologist. The Medical Assessor does not comment on the outcomes from this treatment, nor whether the respondent had obtained any improvement from same. The Medical Assessor does not comment on whether this treatment has been adequate, and/or whether ongoing sessions would result in any change to the respondent’s condition.
(f) Whether the respondent has reached maximum medical improvement includes consideration of his current treatment regime and whether there is a likelihood of any change occurring in the condition as a result of same… the Medical Assessor has failed to address this in the MAC.
(g) The Medical Assessor states that the respondent has had “appropriate psychological consultation”, yet he fails to explain this finding in light of the ongoing treatment being undertaken.
(h) the Medical Assessor has failed to provide adequate reasons for his finding that the respondent worker has reached MMI, having regard to the ongoing treatment being undertaken.
(i) The finding that the respondent has reached maximum medical improvement, and the failure to give adequate reasons for this finding represents a demonstrable error in the MAC.
The respondent’s submissions are to some extent set out under the heading “Fresh Evidence” above.
The respondent added:
(a) the question of MMI was one for clinical assessment by the expert Medical Assessor. Dr Mason acknowledged Dr Hong’s view in this regard in paragraph 10c of his Certificate (p 9). He stated in clear terms why he took a different view. His reasoning is clear. This statement of reasons more than adequately discharged the Medical Assessor’s statutory obligation.
(b) The statement of reasons is the actual path of reasoning by which the Medical Assessor arrived at his opinion. It is important to observe that it is the path of reasoning for his own opinion that is required, not the assessment of others’.
(c) So long as the Medical Assessor complied with these requirements, he has discharged his statutory duty. It matters not that Dr Hong or Professor Mattick may have a different view.
Discussion
We agree with the thrust of the appellant’s submissions for reasons that follow.
The Medical Assessor noted that “Treatment with EMDR according to Mr Campton has occurred in the last 3 counselling sessions.”
In addition, it was noted that “Clinical record of psychologist Ms Elizabeth Williams indicates fortnightly treatment…”
The Medical Assessor’s comment referred to in par 38 above is somewhat inconsistent with his further statement that:
“(a) friend described what happened to him and what his symptoms were. Mr Campton realised his symptoms were exactly the same. His GP referred him to psychologist Ms Liz Williams and he consulted with her every 3 or 4 weeks; he said he has had possibly 12 sessions. (our emphasis). She initially let him talk and listen to him but has been doing eye movement desensitisation response therapy (EMDR) for the last 3 or 4 sessions and believes this has been helpful. When I asked how he found this to be helpful he said he has unburdened a lot of guilt and shame which has resulted in an increase in confidence and self-esteem so he feels better, but not completely better.”
On this history, Mr Campton is finding the new treatment modality, EMDR, helpful, has clearly achieved some improvement but as he told the Medical Assessor, he is “not completely better”. The Medical Assessor makes no observations as to whether this very recent symptomatic improvement has been associated with any functional gains.
The Medical Assessor opined that MMI had been obtained because "he will not use antidepressant medication for philosophical reasons and will not attend a psychiatrist. He has had appropriate psychological consultation.” However his psychologist records she has been engaged in enabling Mr Campton to develop “enough resources to cope with distress and manage a trauma-focused approach”. Trauma focused treatment is recommended as most effective in all clinical guidelines, and the respondent’s psychologist confirms her intention to implement such treatment: “I will likely use eye movement desensitisation and reprocessing (EMDR) to reduce his symptoms of PTSD”
In short, although the supportive approach by Ms Williams has been “appropriate” in establishing the basis for trauma focused treatment, Mr Campton has only recently commenced evidence-based treatment under which he has shown some improvement.
Research, practice and clinical guidelines recommend over 10 to 12 EMDR sessions to achieve an optimal outcome.
For these reasons, we agree that Mr Campton has not reached MMI.
He should be re-assessed in no less than six months given the current treatment frequency of two sessions per month.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 October 2024 should be revoked, and a new MAC 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: | W24133/24 |
Applicant: | Andrew Campton |
Respondent: | State of New South Wales (Fire & Rescue NSW) |
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 Wayne Mason and issues this new Medical Assessment Certificate as to the matters set out in the table below on the basis that the Appeal Panel has determined that maximum medical improvement has not occurred.
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) |
| 1.Psychological | 17/03/2023 | 11, | 14 | N/A | N/A | N/A |
| Total % WPI (the Combined Table values of all sub-totals) | N/A | |||||
0