State of New South Wales (NSW Police Force) v Bolton

Case •

[2024] NSWPICMP 810

•

29 November 2024
DETERMINATION OF APPEAL PANEL
CITATION: State of New South Wales (NSW Police Force) v Bolton [2024] NSWPICMP 810
APPELLANT: State of New South Wales (NSW Police Force)
RESPONDENT: Andrew Peter Bolton
APPEAL PANEL
MEMBER: Carolyn Rimmer
MEDICAL ASSESSOR: Nicholas Glozier
MEDICAL ASSESSOR: Michael Hong
DATE OF DECISION: 29 November 2024
CATCHWORDS: 

WORKERS COMPENSATION - Applicant sustained primary psychological injury; Medical Assessor assessed applicant as having a whole person impairment (WPI) of 19%; deducted one-tenth for pre-existing injury, condition or abnormality; added 2% WPI for the effects of treatment  resulting in 19% WPI; rounded up to a total of 15% WPI; Panel held that the Medical Assessment Certificate (MAC) contained a demonstrable error in relation to the addition of 2% WPI for the effects of treatment as the modifier in chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment is only available where there has been effective long-term treatment that has resulted in “apparent substantial or total elimination” of the relevant impairment; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 14 June 2024 State of New South Wales (NSW Police Force) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, Medical Assessor (Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 16 May 2024.

  2. 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.

  3. 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.

  4. 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.

  5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

  1. Andrew Bolton (Mr Bolton) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 25 March 2024 in which he claimed 19% whole person impairment (WPI) in respect of a psychiatric and psychological disorder as a result of an injury deemed to have occurred on 23 October 2019.

  2. The matter was referred to the Medical Assessor for assessment.

  3. The Medical Assessor examined Mr Bolton on 13 May 2024.

  4. In the MAC dated 31 October 2023, the Medical Assessor assessed 19% WPI resulting from psychiatric injury deemed to have occurred on 23 October 2019.

PRELIMINARY REVIEW

  1. 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.

  2. The appellant submits that a re-examination of Mr Bolton is not appropriate as the errors made by the Medical Assessor were on the basis of the documentary evidence already before him and Mr Bolton does not take issue with the Permanent Impairment Rating Scale (PIRS) ratings.

  3. As a result of that preliminary review, the Appeal Panel determines that it was not necessary for Mr Bolton to undergo a further medical examination because there is sufficient information upon which to make a determination.

EVIDENCE

Documentary evidence

  1. 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

  1. 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

  1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

  2. The appellant’s submissions include the following:

    (a)    Ground 1 – erroneous consideration of supporting medical evidence.

    The Medical Assessor considered various reports as part of the referral stating:

    “My assessment is generally aligned with the assessments of Drs Anand and MacDonald, and differs over severity with Professor Robertson and Dr Bertucen over the diagnosis and attribution, and aligns with his previous treating psychiatrist Dr Selwyn Smith.”

    (b)    The Medical Assessor comments specifically on the report of Dr Kirsty MacDonald, psychiatrist, dated 24 October 2023 on whom the appellant relies, noting WPI was 18%.

    (c)    The Medical Assessor’s review of the various impairments per the PIRS categories is consistent with Dr MacDonald’s assessment of Mr Bolton when it occurred. However, the Medical Assessor’s conclusion that “whole person impairment was 18%” is incorrect.

    (d)    Dr MacDonald’s aggregate score was 15, and median scores 2. This amounts to an 8% WPI. If there was a typographical error with the Medical Assessor’s comments, in that he meant to note an 8% WPI rather than 18% WPI, then this would be inconsistent with his comments that “his assessment is generally aligned with the assessments of Drs Anand and MacDonald.” Accordingly, the Medical Assessor has incorrectly accounted for Dr MacDonald’s opinion.

    (e)    Ground 2 – Incorrect adjustment for the effects of treatment.

    In Table 2 of the MAC, the Medical Assessor states: “Some benefit from effect of treatment with psychologist, of 2%.” It is evident from this that the Medical Assessor allowed for a 2% increase in WPI for the effects of treatment.

    (f)    Per the Guidelines, an increase in WPI is permissible if Mr Bolton is likely to revert to the original degree of impairment if treatment is withdrawn. There is no evidence that this is the case. To the contrary, Mr Bolton’s psychological treatments which are beneficial, are continuing.

    (g)    Ultimately, the Medical Assessor does not proffer any opinion to establish the appropriateness of the addition of 2% to the WPI other than stating “Some benefit from effect of treatment with psychologist of 2%”.

    (h)    The Medical Assessor’s opinion that Mr Bolton had reached maximum medical improvement as his “symptoms have stabilised and unlikely to improve further” also weighs against the addition of a 2% WPI.

    (i)    The Medical Assessor’s final WPI figure is incorrect, having regard to the errors submitted above. In correctly applying the Guidelines to Mr Bolton’s assessment, WPI should be: (i) 17% WPI based on: (ii) Median class 3, aggregate score 17, amounting to 19%, less 10% (1.9% rounded up to 2%), totalling 17%; or alternatively, (iii) 15% WPI based on, and (iv) Median class 3, aggregate score 17, amounting to 19%, less 10% (1.9% rounded up to 2%), less another 2% WPI for beneficial effects of continuing treatment, totalling 15% WPI.

    (j)    Accordingly, the MAC should revoked and that a fresh MAC be issued by the Appeal Panel amending the final WPI figures, and properly taking into account deductions for pre-existing conditions, and treatment (if applicable).

  3. The Mr Bolton’s submissions include the following:

    (a)    Ground 1 – erroneous consideration of supporting medical evidence.

    Mr Bolton does not agree that “the Medical Assessor has incorrectly accounted for Dr MacDonald’s opinion”. There was a typographical error made in transposing Dr MacDonald’s WPI assessment, stating 18% instead of 8%.

    (b)    The Medical Assessor states that his assessment is generally aligned with the assessments of Drs Anand and MacDonald and differs over severity with Professor Robertson and Dr Bertucen over the diagnosis and attribution and aligns with his previous treating psychiatrist Dr Selwyn Smith. This comment made by the Medical Assessor suggests that his opinion is similar to the assessments provided by Dr Anand and Dr MacDonald. Dr Anand also assesses Mr Bolton with a 19% WPI whilst Dr MacDonald assesses 8% WPI but Dr MacDonald and the Medical Assessor assess the same class scores for four of the six PIRS categories. The assessments do not need to be the same in order for the Medical Assessor’s comment to be correct, and that the assessments are considered “generally aligned” in the circumstances.

    (c)    The typographical error made by the Medical Assessor on page 7 of the MAC is not a “demonstrable error” but is an “obvious error” which the Registrar can correct.

    (d)    The appellant has not satisfied the “demonstrable error” ground of appeal.

    (e)    Ground 2 – incorrect adjustment for the effects of treatment.

    Mr Bolton does not agree with the appellant’s submission that the Medical Assessor has made an incorrect adjustment of 2% WPI for the effects of treatment.

    (f)    A psychiatrist, when assessing WPI, uses clinical judgment to determine whether any WPI allowance for treatment should be made, with reference to paragraphs 1.32 and 11.8 of the Guidelines. The Medical Assessor formed the opinion that an additional 2% WPI should be added for the effects of treatment, and his opinion should not be disturbed in the circumstances.

    (g)    The appellant has not satisfied the “incorrect criteria” and/or “demonstrable error” ground of appeal, and submits the Medical Assessor formed his opinion regarding the allowance for treatment in accordance with the Guidelines. In addition to cavil with the clinical judgment of the medical assessor is not a demonstrable error (Chalkias v State of New South Wales [2018] NSWSC 1561).

    (h)    Mr Bolton does not agree with the appellant’s calculations and believes they are incorrect. Mr Bolton’s WPI, based on the MAC dated 16 May 2024, is correctly 19%. The Medical Assessor assesses a median score of 3, and an aggregate score of 17, which equates to a 19% WPI. Adding the 2% WPI for effect of treatment, means a sub-total of 21% WPI, and then deducting 1/10th deduction for pre-existing condition (2.1%) gives a total 19% WPI.

    (i)    In the alternative, if it is found that the Medical Assessor should not have applied the additional 2% WPI for the effect of treatment, the calculation of WPI is 17%.

    (j)    The appellant does not satisfy the grounds of appeal in s 327 of the 1998 Act, and the MAC dated 16 May 2024 assessing 19% WPI is correct and should be confirmed.

FINDINGS AND REASONS

  1. 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.

  2. 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.

Ground 1 – erroneous consideration of supporting medical evidence

  1. The appellant submits that the Medical Assessor incorrectly accounted for Dr MacDonald’s opinion and his conclusion that she assessed 18% WPI was incorrect.

  2. The Medical Assessor, in commenting on the other medical opinions and findings, writes:

    “My assessment is generally aligned with the assessments of Drs Anand and MacDonald, and differs over severity with Professor Robertson and Dr Bertucen over the diagnosis and attribution, and aligns with his previous treating psychiatrist Dr Selwyn Smith.”

  3. The Medical Assessor comments specifically on the report of Dr Kirsty MacDonald, psychiatrist, dated 24 October 2023 on whom the appellant relies, as follows:

    “The claimant was diagnosed with Posttraumatic Stress Disorder. Selfcare and personal hygiene was not impaired as he can cook, clean and look after himself. Social and recreational activities was moderately impaired as he was not seeing people outside of home and feels abandoned by work and friends. He occasionally sees a friend at coffee, but tends to be more of a phone call. He does not leave the house without a support person. Travel was mildly impaired as he can drive, but only to familiar places. Social functioning was mildly impaired as his existing friendships were strained without any separation, divorce or violence. Concentration, persistence and pace was mildly impaired as he feels distracted and will often commence multiple tasks and can watch TV alright. He is often irritable reading manuals and following instructions. Adaptability and employability was totally impaired. His whole person impairment was 18%.”

  4. The Medical Assessor also comments on the report of Dr Ashwinder Anand, psychiatrist, dated 5 June 2023:

    “The claimant was diagnosed with Posttraumatic Stress Disorder. Treatment has included psychological therapy. Self-care was mildly impaired as he does some chores around the house and can self-care adequately in terms of showering and having his meals. Social and recreational activities was moderately impaired as he has not engaged in footy or travelling and avoids sports in case he gets triggered. He has been quite reclusive and withdrawn from friends and family. He goes surfing regularly, surfing up to three times a day to manage his anxiety. Travel was mildly impaired as he can drive locally only if needed. Social functioning was mildly impaired as his relationship with Deborah was good and so too with children. He has distanced himself from most of his friends. Concentration, persistence and pace was moderately impaired as he does not read much due to his poor concentration. Employability was totally impaired. His whole person impairment was 19%.”

  5. The WPI assessment of the Medical Assessor is calculated on the basis of the PIRS categories as follows:

    (a)     Self-care and personal hygiene – Class 2;

    (b)     Social and recreational activities – Class 3;

    (c)     Travel – Class 2;

    (d)     Social functioning – Class 2;

    (e)     Concentration, persistence and pace – Class 3, and

    (f)      Employability – Class 5.

  6. The median class is 3, and the aggregate score is 17 which results in 19% WPI. The Medical Assessor allows allows a 1/10th deduction pursuant to s 323 of the 1998 Act, that is, 2%, but also allows a 2% increase in WPI for “benefit from effect of treatment with psychologist”. Therefore, the total % WPI is 19%.

  7. The appellant is correct in noting that Dr MacDonald actually assessed 8% WPI. She assesses Class 1 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 2 for concentration, persistence and pace, and class 5 for employability.

  8. The Appeal Panel notes that Dr Anand assessed 19% WPI. He assesses Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 3 for concentration, persistence and pace, and class 5 for employability.

  9. The Medical Assessor states that assessment is generally aligned with the assessments of Drs Anand and MacDonald, differs over severity with Professor Robertson and Dr Bertucen over the diagnosis and attribution, and aligns with his previous treating psychiatrist Dr Selwyn Smith. The assessments by Drs Anand and Dr MacDonald differ in the assessments in the PIRS categories of self-care and personal hygiene and concentration, persistence and pace. However, Dr Anand and Dr MacDonald make the same assessment in all of the other four PIRS categories.

  10. The Medical Assessor only states that his assessment was generally aligned with the assessments of Dr MacDonald and Dr Anand. He did not state that he made the exact same assessment as that made by either of those doctors. The Appeal Panel does not accept that this error, that is, the reference to an assessment of 18% WPI, is inconsistent with his comments that “his assessment is generally aligned with the assessments of Drs Anand and MacDonald.”

  11. The Appeal Panel is satisfied that the reference to Dr MacDonald having assessed 18% WPI is an obvious typographical error and not material to the assessments of impairment made by the Medical Assessor.

Ground 2 – incorrect adjustment for the effects of treatment

  1. The appellant submits that an increase in WPI is permissible if Mr Bolton is likely to revert to the original degree of impairment if treatment is withdrawn but there is no evidence that this is the case. The appellant argues that Mr Bolton’s psychological treatments, which are beneficial, are continuing. Further, the appellant submits that the Medical Assessor does not proffer any opinion to establish the appropriateness of the addition of 2% to the WPI other than stating “Some benefit from effect of treatment with psychologist of 2%”. Finally, the appellant submits that the Medical Assessor’s opinion that Mr Bolton had reached maximum medical improvement as his “symptoms have stabilised and unlikely to improve further” also weighs against the addition of a 2% WPI.

  2. Under the “History relating to the injury”, the Medical Assessor states:

    “He has engaged in the St John of God Trauma Course in 2019, which he found helpful.

    He saw a psychologist, which he has found mild to moderately helpful with managing his distress.

    He saw a psychiatrist. He has been on diazepam, and endone for his pain. He has not been on any other psychotropic medications”.

  3. Under “present treatment”, the Medical Assessor writes:

    “He is not on any medications.

    He is seeing his general practitioner every 2 months.

    He is seeing his psychologist every month.

    He is seeing his psychiatrist every 3 months.

    There are no further plans for treatment escalation or medication changes.

    He is not motivated for further escalation of treatment due to his concern of side effects, such as dulling of his cognition and gaining weight, given his adverse reaction to a previous antidepressant.”

Under “Present symptoms”, the Medical Assessor writes:

“He said he is currently drinking alcohol 6 days a week, 4 drinks a day at least and more on weekends. He said he has taken a few edibles in the past 12 months.

He said he has been feeling depressed often. He said he has not been able to enjoy much at all. He said he has been sleeping poorly, going to bed at 11pm, and waking recurrently throughout the night. His appetite has poor, and his weight fluctuates. His energy levels have been poor. He said he feels hopeless and worthless a lot. He denied any suicidal ideations with his children being his protective factor, but he has death fantasies over the past three months.

He said he has had intrusive recollections of fatalities he has been exposed to in his career, which occur on a weekly basis, including in his dreams, which cause him significant distress, and domestic violence. He avoids certain roads that are locations of fatalities, unless he is forced to, and he avoids talking and thinking about it if possible. He believes that he is ruined, and he feels constant anger. He has diminished interest, detached from his friends, and difficulties experiencing positive emotions. He has been more angry and irritable, and has struggled with his concentration and struggles with sleep disturbances. He denied any dissociation and denied any psychosis.”

  1. In Table 11.8 of the MAC, the Medical Assessor writes: “Some benefit from the effect of treatment with psychologist, of 2%.”

  2. Mr Bolton submits that a psychiatrist, when assessing WPI, uses clinical judgment to determine whether any WPI allowance for treatment should be made, with reference to paragraphs 1.32 and 11.8 of the Guidelines. Mr Bolton argues that the Medical Assessor formed the opinion that an additional 2% WPI should be added for the effects of treatment, and his opinion should not be disturbed in the circumstances.

  3. As noted above, the Medical Assessor determines that the assessment should be increased by a further 2% WPI for the effects of treatment. 

  4. Chapter 1.32 of the Guides, which provides:

    “1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”

  5. The Guidelines at 11.8 relate to psychiatric Injuries but the paragraph headed “Effects of Treatment” is concerned with whether the injury is stable and not with the estimation of impairment. 

  6. Under “present treatment” the Medical Assessor notes that Mr Bolton was not on any medications and sees his general practitioner every two months, his psychologist every month and his psychiatrist every three months.

  7. The Medical Assessor notes that Mr Bolton found the St John of God Trauma Course in 2019 to be helpful as well as treatment from a psychologist which was “mild to moderately helpful with managing his distress”.

  8. The Appeal Panel notes that the Medical Assessor made a 2% adjustment for the effects of treatment stating: “Some benefit from the effect of treatment with psychologist, of 2%.”.

  9. The Medical Assessor provides no additional reasons for the addition of 2% to the WPI. The Medical Assessor did not find that there had been an apparent substantial or total elimination of Mr Bolton’s permanent impairment, only that there had been some benefit.

  10. The Appeal Panel considers that the modifier in Chapter 1.32 of the Guidelines is only available where there has been effective long-term treatment that has resulted in “apparent substantial or total elimination” of the relevant impairment. The Medical Assessor notes the psychological treatment has been “mild to moderately helpful” which does not seem to fully meet the requirement that it be “effective”. Further the Appeal Panel does not accept that this “mild to moderately helpful” treatment has been effective in so far that it has resulted in either substantial or total elimination of Mr Bolton’s permanent impairment.

  11. The test is not whether treatment has resulted in an improvement in mental health or even a significant reduction in impairment. To qualify for this additional WPI it must be shown that the treatment has resulted in a substantial or total elimination of the permanent impairment. Mr Bolton is suffering from a significant impairment, as indicated by the 19% WPI, and there is no evidence of Mr Bolton being much more impaired prior to this treatment. Although the treatment by the psychologist has resulted in some benefit, it does not meet the apparent substantial or total elimination criterion in the Guidelines.

  12. The Appeal Panel further observes that there is no consideration of, or evidence for, the treatment meeting the third arm of the modifier’s requirements; that its withdrawal would lead to the impairment reverting to the “original degree of impairment”.

  13. The Appeal Panel concludes that the Medical Assessor used incorrect criteria in relation to the addition of 2% WPI for the effect of treatment (Chapter 1.32 Guidelines) and erred in making an adjustment for the effects of treatment. Accordingly, the 2% WPI for the effects of treatment will be revoked. 

  14. In summary, the Medical Assessor assessed 19% WPI in respect of a psychological injury. The Medical Assessor then made a 1/10th deduction pursuant to s 323 of the 1998 Act. Therefore, the assessment of total WPI by the Medical Assessor was 17.1 % WPI which is rounded down to 17% WPI. The Medical Assessor added 2% WPI for the effects of treatment, which resulted in a total of 19 % WPI. The Appeal Panel revokes the 2% WPI adjustment for the effects of treatment made by the Medical Assessor. Therefore, the assessment of total WPI by the Appeal Panel is 17% WPI in respect of the injury deemed to have occurred on 23 October 2019. 

  15. For these reasons, the Appeal Panel determines that the MAC issued on 16 May 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:

W2415/24

Applicant:

Andrew Peter Bolton

Respondent:

State of New South Wales (NSW Police Force)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

1.

Psychiatric

23 October 2019

Chapter 11,

Page 54

Chapter 14

Page 361-365

19%

1/10th

17%

Total % WPI (the Combined Table values of all sub-totals)

17%
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Cases Citing This Decision

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Cases Cited

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Chalkias v State of New South Wales [2018] NSWSC 1561
Campbelltown City Council v Vegan [2006] NSWCA 284