State of New South Wales (Northern NSW Local Health District) v Cox
[2023] NSWPICMP 398
•18 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Northern NSW Local Health District) v Cox [2023] NSWPICMP 398 |
| APPELLANT: | State of New South Wales (Northern NSW Local Health District) |
| RESPONDENT: | Jeffrey Cox |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 18 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; appellant alleged error in the assessment under one of the categories under the Permanent Impairment Rating Scale (PIRS) namely, employability; Held – the ratings in this class was open to the Medical Assessor and the Panel could discern no error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 February 2023 the State of New South Wales (northern NSW Local Health District) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 January 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 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).
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 WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that the worker undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 10 July 2020 deemed
· Body parts/systems referred: Psychological/Psychiatric disorder
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psycho-logical | 10 JULY 2020 - DEEMED | 11 page 55-60 | 14 | 17 | One-tenth | 15 |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
Table 11.8: PIRS Rating Form
| Name | Jeffrey Cox | Claim reference number (if known) | W2864/22 | ||
| DOB | 56-year-old | ||||
| Date of Injury | 10 JULY 2020 - DEEMED | Occupation at time of injury | State of New South Wales (Northern NSW Local Health District) | ||
| Date of Assessment | 23/12/2022 | Marital Status before injury | Married | ||
| Psychiatric diagnoses | 1. PTSD | 2. Alcohol use disorder | |||||||||
| 3. Major depressive disorder | 4. | ||||||||||
| Psychiatric treatment | Psychologist Psychiatrist Medications Psychiatric admissions Detoxification | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Mr Cox reported neglecting his self-care. He said he does not eat regularly and only showers 3 days per week. He cooks and does most of the shopping. He is capable of independent living without regular support and does not need prompting with his self-care. | |||||||||
| Social and recreational activities | 3 | He used to have an active social life and went out with his friends regularly. He stopped attending social gatherings and disengaged from his normal recreational activities, including the surf club. | |||||||||
| Travel | 1 | Mr Cox is anxious when he is out and does not have travel restrictions or impairment. From a psychological perspective, he can go to where he wants to on his own. Dr Glen Smith wrote Mr Cox stated that he drives alone but becomes very anxious and is only able to drive longer distances when supported by his wife. In my assessment, he reported difficulties with his shoulder affecting his driving and there is no psychological impairment in driving long distance. His physical injuries and pain are not assessable in the PIRS. | |||||||||
| Social functioning | 2 | Mr Cox's relationship with his wife has deteriorated, in part due to his anxiety and depressive symptoms. He is anxious and socially avoidant, and ceased contact with most of his friends. He is able to maintain a few long-term friendships. | |||||||||
| Concentration, persistence and pace | 3 | Mr Cox described having poor concentration. He cannot focus on intellectually demanding tasks or read books. His mental state examination is consistent with 3. | |||||||||
| Employability | 5 | Mr Cox has not worked since the subject injury and his anxieties, high alcohol intake and cognitive difficulties, are major impediments to work. | |||||||||
| Score | Median Class | ||||||||||
| 1 | 2 | 2 | 3 | 3 | 5 | =3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 16 | 17 | |||||
Pre-existing injury
One-tenth
Treatment effects
No substantial or total elimination of impairment with treatment, and therefore no treatment uplift.
0
Final WPI
15
The employer appealed. The appeal concerned only the assessments made under one of the PIRS categories, namely employability.
In summary the appellant submitted that the Medical Assessor erred in his assessment under one of the PIRS categories, namely employability as follows:
(a) when he assessed a Class 5 and a Class 3 or 4 should have been assessed, and
(b) he failed to engage with the evidence including that the worker had previously been cleared to return to work (RTW) eight hours a week doing administrative duties and the worker’s own independent medical expert assessed a Class 3.
In summary, the worker Mr Jeffrey Cox (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. He is however not bound to follow the opinions of the IMEs whose reports are in evidence including the IME opinion upon which the worker relies to bring the claim for permanent impairment. Rather, the Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs) as well as details about his certification to RTW being changed to no capacity for work. The Medical Assessor recorded as follows:
“Mr Cox presented as disorganised and rambling as he spoke, and reported that he had poor sleep last night, and reported he drank five bottles of wine yesterday.
He discussed problems with Tweed Heads in a very disorganised way, and said he was being bullied and there was a lack of respect. He was not being supported. There were problems with some of the patients, and he said there were so many things to mention that had caused his psychological injury.
I confirmed the history he had been assaulted over 100 occasions as a security officer at Tweed Heads between 2007 and 2013, and sustained around 13 physical injuries. He was accidentally tasered by the police in 2012 when he was restraining an aggressive person.
He reported that his alcohol intake increased in the last seven years, so that he could sleep. There are days “here and there” when he had not drunk, but when he stopped drinking he said he would vomit and sweat (he described having withdrawal symptoms from alcohol). He had inpatient detoxification but discharged himself early. He has trouble estimating his alcohol intake in 2022, and reported that in the last week he had alcohol every day, sometimes two bottles, sometimes five bottles of wine. He was prescribed Antabuse but did not take it, he stated because his friend warned him about problems with it.
Mr Cox sustained a number of physical injuries, and said that he still has a C5/6 disc injury and left rotator cuff problem which was sustained at work, and his shoulder becomes worse overtime. The last operation was probably in 2020 and this was his right elbow. Mr Cox also suffered back pain. He reported he had fractured nose and cheek from being assaulted by patients in the past. He has Klinefelter syndrome. He said that he had taken Valproate anticonvulsant but never suffered epilepsy, and that Valproate was used for his mood treatment.
He described having problems with his balance and has not fallen. He said he would not be able to walk longer than half an hour because of his cardiovascular problem and he does not surf or go to the gym anymore, for the same reason.
He can lift 5 kg on the right side, but not carry anything on the left and said he does not want to aggravate the injury he sustained in 2016, and so he avoids using his left arm. He stated he needs an operation on that shoulder.
He stopped work in July 2020. He reported that initially he was certified fit for some work, for example eight hours, three days a week, but the hospital told him they could not provide suitable duties. He recalled being upset by the hospital’s response and subsequently the GP changed him to having no work capacity. He recalled he was looking forwards to going back to work, but then realised that his employer was not supporting him to return to work.
· Present treatment:
Mr Cox is taking:
· Baclofen
· Zoloft 200 mg 6 to 8 months
· Vitamin
· Thiamine
· Somac
· Progout
· Lyrica
He attended inpatient detoxification in February 2020 and discharged himself. He had 2 psychiatric admissions, including at Tweed Heads hospital.
The last consultation with a psychologist was 15 months ago.
He has been consulting Dr Maria Guduri, psychiatrist, recently every 3 weeks.
· Present symptoms:
He reported having chronically depressed mood.
He reported a loss of intimacy in the marital relationship.
He reported an inability to enjoy things he would normally enjoy.
He described being forgetful and easily distracted.
He is easily fatigued.
His weight has not changed in the past 2 years and is stable at 135kg, but he said he lost muscles and has central obesity now.
He has poor sleep and nightmares related to work.
He has flashbacks and panic attack-like symptoms.
He reported having a low tolerance for frustration.
He has become socially anxious and avoidant.
· Details of any previous or subsequent accidents, injuries or condition:
Past psychiatric history:
Mr Cox previously worked for the Byron Bay Council as a council ranger for two years, and reported he was bullied by the team leader and other workers. He suffered depression and anxiety, and said he did not drink alcohol to the excess. He saw a psychologist and left the council job. He recalled he received a payout, and did not apply for compensation for a permanent impairment.
He then worked at Gold Coast Hospital for two years as a fulltime security officer. He witnessed a death in 2005, and reported that he was diagnosed as having an adjustment disorder with depression and anxiety. He had treatment with Dr Trevor Lotz, psychiatrist, between 2005 and 2007, or 2008, and again in 2017. He stated in 2017, Dr Lotz approved him to return to security work. He took antidepressant medication and said that his psychological symptoms resolved before he commenced work at Tweed Heads, but he thinks he was still on medication, and could not remember what medication it was. He reported that he received a payout and compensation for the Gold Coast psychiatric injury, but does not recall having had a permanent impairment assessment.
I asked Mr Cox about his previous alcohol intake, he said when he was not working he would drink. He might drink three to four days a week, maybe five drinks in a day, and he stated he was never intoxicated going to work.
I asked about prior drug and alcohol problem or complication, he did not think there is any, although he confirmed he had two DUI charges in 1996, and said he was young and “stupid”, and he has not had further alcohol related offences after that.
Subsequent psychological injury:
Nil.
Background history:
Mr Cox was born in Australia and grew up with his parents. He has a trauma history in his childhood. His father was a police officer and developed Alcohol use disorder. His mother has depression.
· General health:
His physical injuries have been noted.
· Work history including previous work history if relevant:
After year 12, Mr Cox worked as a gardener in Powerhouse Museum, and then briefly on a cruise ship as security guard.
· Social activities/ADL:
Mr Cox is living with his wife, who works in hospital food services. They have no dependents.
He lives on an 8-acre property and said that he should be fixing the fence, but he cannot do it. He does some mowing work and uses a ride-on mower twice a week. He also cleared some of the trees and plants, and does not do anything that is too physical.
Mr Cox does the washing up at home and does some cooking. His wife does most of the cooking. He does most of the shopping and goes to the shops maybe once a week, because his wife works.
He stated he wants to be around people, but when he is with people he does not feel comfortable, and so he has been isolating himself.
Mr Cox is not engaging in his usual hobbies anymore. He used to go to the gym and do weights and has not done it for 18 months now. He stopped going to the surf club two years ago. He said he had volunteered, but they told him he could not be allowed to do anything for the club because he had too many physical injuries.
He used to have 15 friends, but now he only talks to two or three people, and does not see them in person. His mother lives in Sydney and he talks to her regularly. He has a brother in Central Coast and they have not spoken for about 10 years, and he said that his brother has psychological problems. He has a sister in Sydney but does not talk to her either, and he said he does not know why.
Mr Cox was married in 2003, and reported in the last three years there have been significant marital tension. He stated that they are no longer affectionate and he does not know whether this is because of him or because of her. She was off work for about a year and suffered from retinal detachment and lost her eyesight, and was dependent on him until early this year. She has since made a good recovery and returned to work. He worried about her and her health issue has not caused him to develop any new psychiatric injury.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Mr Cox was assessed by video. He was at home during the assessment. I assessed him from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Mr Cox had a shaved head and looked tired, and explained he did not sleep much last night. He regularly closed his eyes during the assessment. He coughed at times. He spoke well and gave an uninterrupted history for about 30 minutes after we begun the assessment, however he was very disorganized with his narrative, often jumping topic to topic, and seemed to mix up different events. He engaged well with the video assessment process. He was moderately restricted in his affect range and was not thought disordered.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
Mr Cox has a history of past trauma and described having suffered work injuries with two previous employers, and previously experienced depression and anxiety. He then started work at Tweed Heads Hospital and reported being in good psychological health whilst still taking antidepressant medication. He managed fulltime work for many years, and suffered multiple episodes of physical and psychiatric injuries as a result of different traumatic encounters as a security officer and wards person. He stopped work by July 2020, and has not engaged in other paid employment. Mr Cox described chronically elevated alcohol intake, and there was an attempt for detoxification. He continues to drink excessively, but there is no proposed plan to further engage in a change in his treatment. Overall, my view is that his psychiatric condition has now stabilised.
As his previous psychiatric injuries were minor and he was clearly capable of fulltime work for many years with the subject employer until his psychological injury rendered him incapable of work, I have made a 1/10th deduction for his pre-existing injury.
consistency of presentation
I have found no inconsistency in Mr Cox's presentation.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessment in the category of employability is the subject of complaint on appeal.
The Medical Assessor had regard to the other evidence that was before him as follows:
“I received more than 1600 pages of documents, including injury notification for left thumb fracture in 2013 while restraining a patient. Incident report in 2013 noted a 17-year-old female, self-harm and was trying to abscond.
Dr Glen Smith IME psychiatrist reported on 30 September 2021, noted at Gold Coast Hospital, Mr Cox witnessed a death of a child which was traumatic, and suffered an adjustment disorder. He started working at Tweed Heads Hospital, and in 2011 was assaulted in the car park, and again saw Dr Lotz. He had been assaulted over 100 occasions as security at Tweed Heads between 2007 and 2013, and suffered 13 physical injuries. In January 2019, he tore his right rotator cuff lifting a linen bag. In March 2019, he witnessed a staff member assault and threaten to kill another staff member, and he had to provide evidence to court. He took Duloxetine from Dr Lotz for many years after the Gold Coast injury. His alcohol commenced at age 21 and until 2008, alcohol consumption was in social setting only, and there was a mild escalation after that to cope with emotional distress due to trauma exposure. He had worked as council inspector at Byron Bay. Dr Smith diagnosed PTSD, persistent depressive disorder, alcohol use disorder, and provided WPI.
Comment: Dr Smith deducted 1/10th for his pre-existing injury, but mis-recorded his final WPI as 17%, when it should be 15%.
Dr Guduri, Treating Psychiatrist, reported on 28 March 2021, noted at first consultation in November 2020. He presented with his wife, with symptoms of PTSD.
Dr Trevor Lotz, on 5 May 2020, throughout the time he has known him, alcohol has always been his downfall, and he recommended detox.
GP record noted different medication, including Duloxetine being prescribed.
On 21 January 2020, report from GP, Dr Dawson noted Mr Cox was on Epilim at this point, with depression in 2014, epilepsy in 2014, Klinefelter syndrome.
Numerous Multiple Certificates of capacity with capacity for some work in February 2020 and he was off work for his physical injuries, then changed to no work capacity in July 2020 in relation to depression and anxiety.
Handwritten clinical assessment noted alcohol, four bottles of wine a night; cirrhosis of liver, drank four days ago; depression and anxiety; binge eating and transferred for detox. PTSD, workplace bullying, history of child sexual abuse at eight years of age, confused about sexuality, fleeting suicidal thoughts, this was in the entry 23 October 2020.
Discharge summary from John Flynn Hospital for alcohol dependence noted.”
The appellant complains that the Medical Assessor has erred in respect of his assessment of employability as Class 5 without due regard to the other evidence before him, including the opinion of the IME qualified on behalf of the worker who assessed Class 3 for employability. The appellant says a Class 3 or 4 should have been assessed for employability.
The Panel cannot interfere with the ratings ascribed by the Medical Assessor to the category of and employability absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be error or assessment on the basis of incorrect criteria.
In respect of employability, Table 11.6 of the Guidelines provides as follows:
Table 11.6: Psychiatric impairment rating scale – employability
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training.
The person is able to cope with the normal demands of the job.
Class 2
Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3
Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4
Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5
Totally impaired: Cannot work at all.
The Medical Assessor assessed a Class 5 with the following reasoning:
“Mr Cox has not worked since the subject injury and his anxieties, high alcohol intake and cognitive difficulties, are major impediments to work.”
The appellant submitted that a Class 3 or 4 should have been assessed. The Medical Assessor has made an assessment on the day of examination in accordance with his clinical judgment and rated the appellant as Class 5. When the MAC is read as a whole he has had clear regard to the certification in February 2020 for some work and then the change in certification. The Medical Assessor has identified a very high level of alcohol use that is incompatible with operating machinery, a limited function on his property including basic maintenance, and intolerance of the kind of social stressors seen in the workplace. It is clear that his assessment of Class 5 for employability is based on his clinical findings on the day of examination and is not based on self report alone and the Medical Assessor has had clear regard to the other evidence that was before him. His reason are adequately explained. The Appeal Panel can discern no error in Class 5 which is the best fit.
For these reasons, the Appeal Panel has determined that the MAC issued on
30 January 2023 should be confirmed.
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2
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