State of New South Wales (NSW Police Force) v Goodwin
[2024] NSWPICMP 488
•23 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (NSW Police Force) v Goodwin [2024] NSWPICMP 488 |
| APPELLANT: | State of New South Wales (NSW Police Force) |
| RESPONDENT: | Robert Goodwin |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 23 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment under the psychiatric impairment rating scale (PIRS); adjustment for the effect of treatment pursuant to clause 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Ballas v Department of Education (State of NSW), Tasevski v Westpac Banking Corporation, and Zoric v Secretary, Department of Education considered; Held – clause 1.32 not satisfied; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 May 2024 the State of New South Wales (NSW Police Force) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Gerard Walsh, who issued a Medical Assessment Certificate (MAC) on 11 April 2024.
The Police Force relies on the following grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in failing to provide adequate reasoning for. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Goodwin suffered a psychological injury as a result of traumatic events witnessed in the course of his employment with the Police Force. The injury is deemed to have been suffered on 5 March 2021.
Using the Psychiatric Impairment Rating Scale (PIRS) in the Guidelines, the Medical Assessor assessed 15% whole person impairment (WPI), placing Mr Goodwin in class 1 for travel, class 2 for self-care and personal hygiene and concentration, persistence and pace, class 3 for social and recreational activities and social functioning and class 4 for employability. The Medical Assessor added 2% under paragraph 1.32 of the Guidelines for the effect of treatment, resulting in a total assessment of 17% WPI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Goodwin to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, the Police Force submitted that the Medical Assessor applied incorrect criteria and made a demonstrable error when allowed 2% WPI for the effects of treatment and when he assessed Mr Goodwin as having a moderate impairment under the PIRS tables for social and recreational activities and for social functioning.
The Police Force referred to Zoric v Secretary, Department of Education[1] (Zoric) and to the three steps to be considered when applying paragraph 1.32. It said that the Medical Assessor did not explain his reasoning in assessing 2%. It noted that Mr Goodwin was seeing a psychologist and psychiatrist but was not taking medication.
[1] [2024] NSWSC 131.
With respect to social and recreational activities, the Police Force noted that the Medical Assessor took a history that, while Mr Goodwin had stopped going to the gym and consequently lost friendships, he was able to help a friend with odd jobs and to go to the pub with acquaintances every two weeks. His level of functioning was more consistent with a mild rather than a moderate impairment. The NSW Police Force said that the Medical Assessor’s reasons were inadequate and internally inconsistent.
The Police Force said that class 2 was the best fit for the history the Medical Assessor obtained with respect to social functioning.
In reply, Mr Goodwin submitted that the finding that he has had some benefit from treatment does not exclude a finding that his condition will deteriorate if the treatment is withdrawn. He sought to identify the material on which the opinion was based and said that the Medical Assessor’s professional opinion should not be disturbed.
In respect of the PIRS, Mr Goodwin said that the Police Force’s submissions were no more than a disagreement with the Medical Assessor’s findings rather than a genuine contention that the Medical Assessor did not address criteria or failed to provide reasons.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].
Assessment under the PIRS
Before turning to the specific submissions about the PIRS, it is relevant to consider some general principles about the way it is applied.
The Medical Assessor was required to assess Mr Goodwin as he presented on the day of the examination[4] and on the basis of the history he obtained on that day.
[4] Guidelines paragraph 1.6.
The important part of each class of each PIRS table is the level of impairment, such as mild or moderate. Examples of the kind of activity which illustrates the level of impairment follow.[5] Class 1 applies where there is no deficit or a “minor deficit attributable to the normal variation in the general population.” That is, the PIRS accepts that there are a range of behaviours which can be considered normal.
[5] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [65].
In Tasevski v Westpac Banking Corporation[6] (Tasevski) Schmidt AJ referred to Ballas v Department of Education (State of NSW)[7] (Ballas) and discussed the need for conduct to be assigned to the appropriate class of the PIRS. Her Honour said:[8]
[6] [2024] NSWSC 401.
[7] [2020] NSWCA 86 at [94]-[95].
[8] At [27]-[36].
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.
…
It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor’s conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”
Social and recreational activities
The Medical Assessor gave reasons for assessing Mr Goodwin in class 2:
“Class 3 and not Class 2 was selected because he was able to go out with friends. However, he has lost a significant area of his life in terms of exercising and has not regained it.
He has moderate impairment.
Hobbies: He said that he spends his spare time reading about American politics or helping a friend and doing odd jobs.
Exercise: He stated that he used to enjoy exercising and this was a significant part of him in terms of lifestyle and social connections. However, he has not able to motivate himself to restart exercising in any form for the past years.
Other activities: The claimant said that he did not partake of any other activity or hobby
Frequency of socialising: He said that he goes to the pub with acquaintances every 2 weeks.
Involvement when out: He stated that he gets involved when out socially. The claimant said that a support person is not needed to go out.”
The examples in the Guidelines for class 2 are:
“Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
The examples for class 3 are:
“Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
Dr Scurrah, Mr Goodwin’s treating psychiatrist assessed him in class 3 on 26 May 2023. The Medical Assessor noted that Mr Goodwin’s condition had improved since Dr Scurrah’s assessment.
In Ballas, Bell P and Payne JA said that the scale measured the extent of a worker’s participation in social and recreational activities.[9] Not only does Mr Goodwin maintain interests, including helping a friend with odd jobs but he goes to the pub with others on a regular basis. As the Medical Assessor acknowledged, Mr Goodwin does not require a support person and he does get involved. Inevitably when going to the pub he will be exposed to other people as well as those he has gone to meet.
[9] At [100].
The Medical Assessor noted that diminished interest is one of the trauma symptoms Mr Goodwin suffers. Assuming that Mr Goodwin has stopped exercising because of his psychological injury rather than his physical injury, we agree that the loss of the social connection that he had through exercise is evidence of impairment so that assessment in class 1 was not appropriate. However, when his history of other regular activities is considered by reference to the examples in the Guidelines it is clear that assessment in class 3 was excessive and in error, and that his impairment is mild, requiring assessment in class 2.
Social functioning
The social functioning table measures the strength of a worker’s personal relationships and his ability to form and maintain them.
The Medical Assessor assessed Mr Goodwin in class 3 because:
“Class 3 and not Class 2 was selected because he is not exercising, he has lost social connections he had through that and he is emotionally shut down from people and does not trust people.
He has moderate impairment.
Relationship with partner: He said that his relationship has been good without any separations or arguments.
Relationship with children: He stated that he has weekly contact with his 3 daughters and son who are 16, 19, 22, and 26 years of age. He said that he has a good relationship with all of them.
Relationship with siblings: The claimant said that he has two brothers and a sister. He said that he does not have regular contact with them, but that is independent of the work-related traumatic events.
Relationship with parents: He reported that his relationship with his mother is good, and they speak twice a week. He stated that his father is deceased.
Relationship with friends: He stated that he has 3 or 4 good friends now but that he has lost around 10 friends because he became emotionally shut down. He said also that they were associated with his healthy lifestyle that he has since lost.”
The Medical Assessor relied on Mr Goodwin’s loss of “social connection” in no longer meeting the people with whom he enjoyed his healthy lifestyle as evidence of impairment in social and recreational activities and social functioning. As set out in Ballas and Tasevski, conduct must be assigned to the correct table. We consider that the loss of social connection through ceasing to exercise is better assessed under social and recreational activities. The friendships Mr Goodwin has lost are those related to exercise.
Though Mr Goodwin has lost some friendships, he maintains weekly contact with his children and twice weekly contact with his mother. He has irregular contact with his siblings but told the Medical Assessor that was not a result of the injury. The extent of contact between Mr Goodwin and with his children and mother shows those relationships are not only intact but apparently strong. Mr Goodwin told the Medical Assessor that his relationships were good, which connotes a mild impairment.
The most significant reason why the Medical Assessor’s assessment in class 3 cannot stand is that Mr Goodwin has formed a new domestic relationship since the injury. The Medical Assessor recorded that he was married before the injury. His relationship with his then wife was affected by his mental health which led to arguments and separation. Mr Goodwin’s “current living situation” is with his partner of two years and he told the Medical Assessor that the relationship is good without separations or arguments.
Dr Scurrah who assessed Mr Goodwin in class 3 relied only on the end of the relationship with his wife and said nothing about his relationship with his mother or children. Though he examined Mr Goodwin for the purpose of the permanent impairment claim within the last two years, he did not mention that relationship. Dr MacDonald, who saw Mr Goodwin on behalf of the Police Force and reported on 13 September 2023 recorded that he was living with a partner.
The Medical Assessor was in error to assess Mr Goodwin in class 3 based on the history he took. The correct assessment is a mild impairment, class 2.
PIRS assessment
The scores are therefore class 1 for travel and class 2 for self-care and personal hygiene, social and recreational activities, social functioning and concentration, persistence and pace. The Medical Assessor placed Mr Goodwin in class 4 for employability.
When those scores are arranged in ascending order in accordance with paragraph 11.14 of the Guidelines, they read 1, 2, 2, 2, 2 and 4. The total is 13 and the median class is 2. Under Table 11.7, that converts to 7% WPI.
Adjustment for the effect of treatment
Clause 1.32 of the Guidelines provides:
“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.”
The Medical Assessor described Mr Goodwin’s treatment:
“Current treatment as per the claimant on 08/04/2024:
Medications:
He said that he is against medications and did not wish to take any.
Psychology:
He said that he sees his psychologist, Peter Lindsay, every 6 weeks and that they began sessions mid-2021. He reported that they have been effective and given him tools to deal with the effects of the traumatic events. He stated that this was his main therapeutic setting.
Psychiatrist:
He said that he sees his psychiatrist, Dr Scurrah every 3 to 4 months which are by phone consultations. They talk about his progress even though not undertaking any psychotropic medication treatment. He said that he plans to continue seeing Dr Scurrah.
Other treatments:
None.”
In respect of past treatment the Medical Assessor said:
“In 2017, he attended a traumatic incident involving the death of an infant child. He stated that he took time off work soon after. He said that he accessed a psychologist through work and had 3 or 4 sessions. He then completed a return-to-work program over a month before returning to his duties after this treatment.
He reported that around 2½ years ago he had been prescribed fluvoxamine, but this caused side effects of drowsiness and nausea. He ceased it after a few months because of these effects.
He confirmed that on 08/03/2021 he began seeing Dr Scurrah for PTSD symptoms.
He confirmed that on 31/06/2021, he was seeing his psychologist Peter Lindsay in Coffs Harbour.
In 2022 he tried inpatient treatment once at Currumbin Clinic. When asked why the admission was deemed necessary, the claimant said that his symptoms at that time had increased by a factor of 10. He was constantly drunk and his emptions were ‘up and down’. He said that he left on the day of admission due to the challenges with the environment there.”
Dealing with the question of whether Mr Goodwin’s condition had reached maximum medical improvement, the Medical Assessor said:
“Yes, as the claimant has engaged in psychological therapy with some benefit but significant symptoms remain.
He was clear in saying that he did not wish to try further medication treatment. Given this, there is no other feasible means of escalation of treatment, and the claimant is unlikely to change substantially, and hence the claimant has reached maximum medical improvement.”
Commenting on other reports in the file the Medical Assessor said:
“My assessment of 17% WPI% is less than that of Dr Scurrah as there appears to have been further improvement since that assessment. There were no other PIRS tables or scores provided from other assessors. My reasoning for each specific domain is to be found within the PIRS.”
The Medical Assessor included 2% for the effects of treatment in the table of the MAC. The Medical Assessor did not explain why an allowance was appropriate nor his reasons for allowing 2%.
Mr Goodwin’s submissions sought to construct a basis for the opinion from the Medical Assessor’s references to treatment. We agree that the Medical Assessor made comments about Mr Goodwin’s treatment but nowhere in the MAC did he say why he had allowed 2%.
As the Police Force submitted, the operation of paragraph 1.32 has recently been the subject of consideration by the Supreme Court in Zoric. Chen J said:[10]
“The clause may thus be understood to involve, and require findings about, the following ‘steps’:
1)First, whether there has been effective long-term treatment of an illness or injury.
2)Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3)Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
These steps largely align with the analysis of Adamson J (as her Honour then was) in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [57] (‘Peachey’), and both parties accepted that a proper application of cl 1.32 of the Guidelines requires these steps to be addressed.”
[10] At [59]-[60].
His Honour went on:
“In relation to the first step, therefore, there needs to be a finding about the ‘illness or injury’ that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey at [52] as follows:
‘Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause…’
Further, in relation to the comparative exercise required by cl 1.32, the clause neither requires, nor authorises, a comparison between respective WPI scores at those times, nor does there need ‘to be a post-injury pre-treatment WPI score for the purposes of undertaking the necessary comparison’: Peachey at [53] and [56]. The explanation for this lies, at least in part, in the language of the clause: the focus of cl 1.32 is upon ‘permanent impairment’, not on its degree expressed as a percentage: Peachey at [54] citing Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 at [67].
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
Evidence about treatment
There is scant information in the file about the treatment Mr Goodwin has undergone. The Application to Resolve a Dispute (ARD) is mainly comprised of documents about the events which caused Mr Goodwin’s psychiatric injury rather than the treatment of it.
Mr Goodwin said in his statement dated 12 February 2024 that he saw his psychologist Mr Lindsay on a fortnightly basis “to treat my post-traumatic stress disorder.” He said that he saw Dr Scurrah every three to six months “albeit her does not prescribe me with medication which is my choice.” He said:
“I do not take medication other than the odd analgesic such as Panadol. I personally do not believe in medication. I tried medication for my psychological condition when I was prescribed Fluvoxamine by Dr Scurrah. It made me feel drowsy, nauseous, and sick so I stopped taking it after a couple of cycles. Medication does not make me feel any better.
…
I tried inpatient treatment once at Currumbin Clinic in 2022 or thereabouts. I went through the admission process and was allocated a shared room with another person who had mental health problems. I was in my room for about an hour and during that time, other severely impaired mental health patients were walking freely in and out of my room while the staff were taking me through the policies and procedures relating to admission. The staff started reading me out preambles and documenting my responses and this made me feel very uncomfortable. The staff then started searching my belongs and going through my bag. It made me feel like a criminal and it gave me flashbacks of what it was like when you take someone into custody and you check their person and belongings. I decided that this was not a place where I could work on improving my mental health and I left.
I have not undertaken any inpatient rehabilitation for alcohol use. My alcohol use has reduced significantly from all day drinking to 2-3 drinks per evening. I would not consider inpatient admission possible, for the same reasons outlined above.”
Mr Goodwin did not say anything about his treatment with Mr Lindsay in his statement. The tenor of his statement is that he is still suffering from the impact of the injury and that the only improvement in his condition is a reduction in alcohol consumption from all day to only the evening.
The permanent impairment claim is based on an assessment by Dr Scurrah, Mr Goodwin’s treating psychiatrist, summarised below. It is the only report from Dr Scurrah in the ARD and there are no copies of treatment reports sent by Dr Scurrah to the general practitioner. There are no clinical notes from Mr Goodwin’s general practitioner, his treating psychologist nor from Dr Scurrah. Those documents also do not appear in the Reply which is comprised mainly of documents about Mr Goodwin’s concurrent physical injuries.
Dr Scurrah said in his report dated 26 May 2023:
“He was initially referred to me by his General Practitioner, Dr S Vandervlist (dated 5/3/21) with ‘struggling with symptoms of post-traumatic stress disorder’. My first consultation with him was on the 8/3/21. His recent consultation dates included 21/9/22, 14/12/22, 13/3/23, 27/3/23. He has a future consultation booked for 20/6/23. The recent consultations reveal he still has the conditions of a chronic Post Traumatic Stress Disorder, chronic Depression with anxiety and excess intake constituting Alcohol Use Disorder.
Mr Goodwin was briefly admitted to a specialised psychiatric hospital, the Currumbin Clinic. Due to marked exacerbation of his symptoms, he did not complete the admission. He declined treatment at a specialised outpatient program. His anxiety markedly increases when he contemplates it.
He is currently attempting to manage his conditions without antidepressants. He has a number of negative views regarding prescription medication.”
Dr Scurrah said:
“Ongoing treatment consists of:
•Co-ordination and care by a General Practitioner.
•Regular counselling with a Psychologist.
•He has declined treatment at a PTSD focussed outpatient program due to his perceived stigma of it and his fear his symptoms will escalate.
• He has declined rehospitalisation for alcohol detoxification.
•He previously briefly trialled Fluvoxamine. He reported side effects and stopped it. He does not want to trial another antidepressant.”
Dr Scurrah said, “there is no addition for medication benefit.”
The Police Force relied on a report by Dr MacDonald who noted that Mr Goodwin was drinking heavily. She recorded:
“Mr Goodwin sees his GP monthly. He speaks intermittently to his Psychiatrist, Dr Scurrah via Telehealth. His main contact is with his psychologist. He usually sees her fortnightly but he has missed a few appointments because of memory difficulties. He stated that he does not feel like he is getting much out of the psychologist at the moment. He has not attended any hospital or inpatient PTSD programs and does not feel this would be useful for him.”
Asked if Mr Goodwin had undertaken reasonable treatment, Dr MacDonald said:
“Mr Goodwin’s main treatment regime has been psychological treatment on a fortnightly basis.
He intermittently engages with his Psychiatrist.
Mr Goodwin does not currently want to take any medications.
He has not engaged in any day or inpatient treatments to address his substance use or trauma symptoms.
Overall, Mr Goodwin has been sub-optimally treated.
I do not believe that he has reached MMI secondary to having inadequate treatment to address his current presenting problems.
I believe that if he were to receive adequate treatment, his condition could change significantly within the next 12 months.”
Consideration
The Medical Assessor diagnosed post-traumatic stress disorder and alcohol use disorder. Dr Scurrah and Dr MacDonald also diagnosed major depressive disorder with anxiety. Those conditions are the injury to be considered for the purpose of paragraph 1.32.
We consider that the respondent’s long-term treatment may not have been optimal. Mr Goodwin has seen his psychiatrist sporadically. He declined medication after a short trial and is disinclined to accept further trials. He told the Medical Assessor that consultations with his psychologist were of assistance, though Dr MacDonald noted that he said he was not getting much benefit from those sessions at the time of her examination.
Inpatient treatment was recommended, but Mr Goodwin felt unable to continue soon after arriving. He has reduced his alcohol consumption somewhat, but not as a result of any treatment disclosed in the file.
Mr Goodwin’s treatment has been minimal and limited by what he was prepared to undertake. The only treatment undertaken by Mr Goodwin has been his psychological support with Mr Lindsay and Dr Scurrah, and we accept that this has been helpful. We do not consider that evidence permits a finding that there has been effective long-term treatment of Mr Goodwin’s condition.
Turning to the second limb of the test propounded by Chen J, we note that there has been some improvement in Mr Goodwin’s condition since he ceased work as a result of the injury based on the history he has given, though the scant medical evidence in the file related to his impairment before and after treatment makes a comparative exercise difficult. Dr Scurrah assessed 22% WPI on 26 May 2023. A treating psychiatrist cannot be considered an independent reviewer, but this provides some evidence that Mr Goodwin has improved, though this was not before treatment commenced.
The third limb of the test is whether Mr Goodwin would be likely to revert to the original degree of impairment if treatment was withdrawn. The only significant treatment he has undergone is that with Mr Lindsay. Psychotherapy is intended to be a learning process, providing insight and skills to cope with challenges resulting from the injury. Mr Goodwin told the Medical Assessor that his sessions with Mr Lindsay had given him tools to deal with the effects of the traumatic events.
After a sufficient period of successful psychotherapy treatment, the worker’s condition should not change if the psychological treatment is withdrawn. Once learned, the insights remain and skills can be applied on an ongoing basis. The fact that Mr Goodwin told Dr MacDonald that he was no longer getting much out of the treatment suggests that the benefit has reached a stable plateau.
Mr Goodwin has gained benefit from the psychological treatment undertaken but he does not fulfil the criteria for the addition of a percentage for the effect of treatment.
For those reasons, we have determined that the MAC issued on 11 April 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: | W1635/24 |
Applicant: | Robert Goodwin |
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 Gerard Walsh 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) |
| Psychiatric and psychological injuries | 5/2/21 | Chapter 11 | N/A | 7 | 0 | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
9
0