State of NSW (Fire and Rescue NSW) v Maclean
[2025] NSWPICMP 219
•31 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of NSW (Fire and Rescue NSW) v Maclean [2025] NSWPICMP 219 |
| APPELLANT: | State of NSW (Fire and Rescue NSW) |
| RESPONDENT: | William Maclean |
| APPEAL PANEL | |
| MEMBER: | Jacqueline Snell |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 31 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the Medical Assessor (MA) incorrectly assessed the respondent with Class 3 moderate impairment with respect to the psychiatric impairment rating scale (PIRS) category of social and recreational activities, incorrectly assessed the respondent with Class 3 for the PIRS category of concentration, persistence and pace, incorrectly assessed the respondent with Class 4 for the PIRS category of employability, and incorrectly made an adjustment of 1% whole person impairment for the effects of treatment; Appeal Panel accepted the MA erred in incorrectly assessing the respondent with Class 3 moderate impairment with respect to the PIRS category of social and recreational activities; Held – MAC revoked and issued a new certificate. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 December 2024, State of NSW (Fire and Rescue NSW) (Fire and Rescue NSW) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 November 2024.
Fire and Rescue NSW relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations, and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
William Maclean (Mr Maclean) made a claim for permanent impairment compensation resulting from psychological injury arising out of or in the course of his employment with
Fire and Rescue NSW, with date of injury of 1 January 2005. An Application to Resolve a Dispute was lodged with the Personal Injury Commission (the Commission) and in response, a Reply was lodged with the Commission under cover of an Application to Admit Late Documents. On 8 October 2024, the Commission referred Mr Maclean’s claim to a Medical Assessor.The Medical Assessor examined Mr Maclean on 8 November 2024 and the MAC in which the Medical Assessor assessed Mr Maclean as having sustained 16% whole person impairment (WPI) resulting from the psychological injury was issued on 20 November 2024.
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.
Neither Fire and Rescue NSW nor Mr Maclean requested Mr Maclean undergo a further medical examination.
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 while the Appeal Panel is of the view the Medical Assessor erred in his Psychiatric Impairment Ratings Scale (PIRS) category of social and recreational activities, the Appeal Panel did not consider any of these errors necessitated Mr Maclean undergoing further medical examination.
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
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, Fire and Rescue NSW submits:
(a) the Medical Assessor erred in his determination in the PIRS category of social and recreational activities and ought to have assessed a Class 2, mild impairment, at most;
(b) the Medical Assessor erred in his determination in the PIRS category of concentration, persistence, and pace and ought to have assessed a Class 2, mild impairment, at most;
(c) the Medical Assessor erred in his determination in the PIRS category of employability, and ought to have assessed a Class 3 moderate impairment, at most, and
(d) the Medical Assessor erred in his allocation of 1% WPI for the effects of treatment.
In reply, Mr Maclean submits:
(a) the PIRS categories alleged by Fire and Rescue NSW as indicative of error were thoroughly addressed in the MAC through (i) clinical reasoning consistent with Mr Maclean’s presentation and medical history, and (ii) application of the Guidelines;
(b) the Medical Assessor’s allocation of 1% WPI for the effects of treatment was justified by Mr Maclean’s present benefit derived from long term treatment and does not contradict the Guidelines, and
(c) the evidence relied on by Fire and Rescue NSW to establish demonstrable error were appropriately considered by the Medical Assessor and factored into his assessment.
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.
Review of the MAC
The Medical Assessor assessed Mr Maclean on 8 November 2024. The Medical Assessor recorded the date of injury as 1 January 2005. The Medical Assessor provided a brief history of the psychological injury sustained by Mr Maclean arising out of or in the course of his employment with Fire and Rescue NSW.
The Medical Assessor noted Mr MacLean had admissions to the Berkeley Vale Private Hospital, with Mr MacLean reporting the hospital is the reason he is still alive. The Medical Assessor relevantly reported of Mr Maclean:
“Mr MacLean has engaged in various forms of treatment apart from admission to the hospital. He has seen various psychologists around 5 to 6 in the last many years. His current psychologist is Toni. He stated that she is quite good and keeps him level. He has also seen psychiatrist, Dr Suresh. He had an inpatient admission in Brisbane Waters Private Hospital when he was found by his wife with a bottle of bourbon and medication. Due to flare up of his suicidal thoughts, he was again admitted to Brisbane Waters Private in November 2015 and was discharged in December 2015. He found his inpatient stays useful in improving his symptoms. He has also done EMDR treatment on a regular basis. His medications have been changed by various psychiatrists to manage his symptoms. He was prescribed Minipress instead of Seroquel to manage his nightmares. This also helped with his suicidal thoughts. He commenced engaging in first aid/CPR training in August 2018 and was successful in getting a job in first aid education. He has also done intensive group cognitive therapy sessions during the inpatient and outpatient. Initially he was on Cipramil and then was changed and is now taking sertraline 200mg.”
The Medical Assessor also relevantly reported Mr MacLean is certified fit to work 20 hours each week in suitable employment.
The Medical Assessor provided a summary of injuries and diagnosis:
“In my opinion, Mr Maclean has sustained psychological/psychiatric injury during the course of his employment with Fire and Rescue NSW as a firefighter following exposure to multiple and repeated traumatic events during his employment. He meets the criteria for a DSM-5 diagnosis of post-traumatic stress disorder. Mr Maclean has received treatment in the form of various medications, psychotherapy, multiple hospital admissions, and care under various psychologists along with his GP. He has continued his treatment. However, he has not been able to attend complete remission of his symptoms, and his symptoms are ongoing and severe in intensity.”
When providing reasoning for his assessment of WPI, the Medical Assessor made comment:
“Mr Maclean has received treatment in the form of various medications, psychotherapy, multiple hospital admissions, and care under various psychologists and psychiatrists along with his GP. He has continued his treatment. However, he has not been able to attend complete remission of his symptoms, and his symptoms are ongoing and severe in intensity. In my opinion, he has attained maximum medical improvement as his condition is unlikely to change substantially by more than 3% in the next 12 months with or without treatment. In my opinion, Mr Maclean’s impairments can be considered to be permanent, and hence, I have made an assessment of his permanent impairment. Using the permanent impairment rating scale, in my opinion, there is no pre-existing condition, hence I have not made any deductions for pre-existing impairment. In my opinion, there has been some benefit from treatment. Hence, I have made an addition of 1% for the effects of treatment. The final WPI is 16%.”
Relevant to his determination of the PIRS category of social and recreational activities, which he assessed to be Class 3, the Medical Assessor explained the following reasons for his decision:
“Mr Maclean stated that he is not as social as he used to be. He may go out for a coffee with his mates once a week. He reported an elevated level of anxiety to leave the house and said it is a big process. He stated that a cup of tea helps him with his anxiety. He spends time at home sitting on the lounge and does breathing exercises. He tries to call his mates. He is helping a guy at the moment who is coming out of the fire service. He stated that it feels good to help. Mr Maclean stated that he does attend family weddings and Christmas, and he is trying to normalise things. However, he does not like to go to family functions. He stated he is sick of telling his story all the time. At times he may just leave and go to the toilet or come back home and then go later to pick up his wife. He does not go to social gatherings as often, and he always goes with his wife.”
Relevant to his determination of the PIRS category of concentration, persistence, and pace, which he assessed to be Class 3, the Medical Assessor explained the following reasons for his decision:
“Mr Maclean stated that he tries to read a biography. He has been trying to read 3 books at the present time but has not been able to finish. He used to read a lot, however, not much these days. He stated that concentration is very hard for him. When he is doing certain things at home such as cleaning, he forgets what he was doing and starts to do something else and gets distracted. It may last for 15 – 20 minutes. However, he often forgets. He stated he did a chainsaw course, and it took him 3 weeks to finish a 9-hour course.”
Relevant to his determination of the PIRS category of employability, which he assessed to be Class 4, the Medical Assessor explained the following reasons for his decision:
“Mr Maclean stated that he currently works for a company to teach first aid. He stated he wanted to do something after his retirement from the fire service. He has found that he cannot work more than a day in a week, and his work is very flexible. He can concentrate on the CPR and bleeding component. He said that it is a muscle memory for him. He stated that he also does volunteer work at the Eastwood Rugby Club, where he works as a manager who picks up players and takes them to the game. He would mostly work one day a month. He cannot work more than 1 or 2 days at a time and less than 20 hours per fortnight.
Review of Mr Maclean’s statement
In his statement dated 9 September 2024, Mr Maclean explained that he worked with Fire and Rescue NSW between 1990 and 2015, when he medically retired due to psychological injury. Mr Maclean confirmed he had no prior psychological injury.
Mr Maclean explained that he struggled to adjust to his medical retirement and has received intensive treatment for his mental health, including admissions to Berkley Vale Private Hospital, Brisbane Waters Private Hospital and Gosford Hospital with suicidal ideation.
Mr MacLean has received general medical care, psychological care, and psychiatric care for his psychological injury. Mr MacLean has trialled medications “over the years” and is currently taking Sertraline. While Mr MacLean remains symptomatic, he said “I try best to manage same with medication and techniques taught by my treaters.”At the time he made his statement, Mr Maclean said he was currently certified fit to work 20 hours each week in suitable employment.
Review of independent medical evidence
Dr Canaris
Mr Maclean was psychiatrically assessed as early as 29 April 2015 by Dr Canaris in his capacity as independent medical examiner, being about four months after Mr Maclean’s medical retirement. Dr Canaris provided a report dated the same day.
Dr Canaris relevantly reported on the treatment received by Mr Maclean at that time, which include general medical care, psychological care, and inpatient hospital care. Dr Canaris noted Mr Maclean commenced Cipramil medication, which was subsequently changed to Sertraline and Seroquel.
Following mental state examination, Dr Canaris concluded in part:
“Your client gives a history strongly consistent with the emergence of chronic post-traumatic stress disorder coming on in the context of high levels of workplace trauma exposure…. He had shown partial response to treatment but remains actively symptomatic. He is unfit for his role as a firefighter. He will never be able to work as a firefighter again or for Fire and Rescue NSW… He has had appropriate treatment. He should continue to have access to his psychiatrist and psychologist… his post-traumatic stress disorder detracts considerably from his quality of life. His outlook is for continuing symptoms though with appropriate assistance he will be able to manage a reasonable level of engagement with family and society… There is no evidence of pre-existing impairment.”
Relevant to his determination of the PIRS category of social and recreational activities, which he assessed to be Class 2, Dr Canaris explained the following reasons for his decision:
“He enjoys his dogs. As noted above, he goes out at least once a week socially. He attends his son’s football games regularly and helps coach the team.”
Relevant to his determination of the PIRS category of concentration, persistence, and pace, which he assessed to be Class 2, Dr Canaris explained the following reasons for his decision:
“His concentrations and memory are somewhat impaired in that he is distractible for example while watching TV. He has noticed that he forgets whether he has told his wife certain things – equally often, he forgets things that he has been told or asked. I note in this context that he had forgotten his original appointment with me some six weeks previously. He has noticed that it takes him much longer to read books despite having much more spare time.”
Relevant to his determination of the PIRS category of employability, which he assessed to be Class 3, Dr Canaris explained the following reasons for his decision:
“He would like to return to the paid workforce wanting to contribute to society. He was offered a job as a development officer with the Waratahs. The job involved going into schools and clubs for as long as thirteen hours a day travelling on the Central Coast and North Shore. His GP and psychiatrist strongly advised him not to take up the job. I note also the prospect of a role as volunteer at a reptile park, which could evolve into paid work. I gather the consensus among his treating clinicians is that he is too fragile this far – his GP has advised him not to coach because of the stress involved. While he is not working now, I could not discount the possibility of a return to some work but only in a part time capacity in a position that made few psychological demands and that did not involve complex decision or much by way of multitasking.”
Dr Anand
Mr Maclean was psychiatrically assessed on 16 February 2024 by Dr Anand in his capacity as independent medical examiner. Dr Anand provided a report dated 26 February 2024.
Dr Anand relevantly reported on the treatment received by Mr Maclean to date. Dr Anand noted Mr Maclean had initially come under general medical and psychological care in 2006, with diagnosis of post-traumatic stress disorder in 2007. Dr Anand noted Mr Maclean subsequently came under psychiatric care and had been admitted to hospital on occasions with suicidal ideation. Dr Anand noted Mr Maclean’s current medication was Sertraline 200mg. Dr Anand noted Mr Maclean suffered bruxism.
Relevant to his determination of the PIRS category of social and recreational activities, which he assessed to be Class 3, Dr Anand explained the following reasons for his decision:
“He does not do much exercise and has been trying to push himself to go bush walking or go for walks. He stated that he has become quite reclusive and socially withdrawn. He has taken up a new hobby which is photography, mainly photographing birds, wildlife, plants, and waterfalls. He generally puts these posts up on a Facebook page and does not use them for commercial purposes. He generally watches reruns of MASH on television. He stated that he used to be into sports but not anymore. He generally tends to avoid the news on television. He will watch documentaries. He stated that “I avoid negativity.””
Relevant to his determination of the PIRS category of concentration, persistence, and pace, which he assessed to be Class 3, Dr Anand explained the following reasons for his decision:
“He stated that he cannot do online courses because he struggles with his concentration. He tries to read, and it is mainly real-life stories. He stated that he finds it hard to focus and concentrate. He stated that he tends to leave tasks unfinished. He stated that he has very poor short-term memory and recall.”
Relevant to his determination of the PIRS category of employability, which he assessed to be Class 4, Dr Anand explained the following reasons for his decision:
“Mr Maclean is currently working one day per week as a trainer. He provides first aid training at Gosford. In my opinion, he has the capacity for 16 hours per fortnight to work as a trainer for CPR and first aid training.”
Dr Anand assessed Mr Maclean with 16% WPI, which included an adjustment of 1% WPI for the effects of treatment.
A/Prof Varma
While A/Prof Varma initially provided a report dated 27 March 2023, which was limited to his file review in his capacity as independent medical examiner, Mr Maclean was subsequently psychiatrically assessed by A/Prof Varma on 20 May 2024. A/Prof Varma provided a report dated the same day.
A/Prof Varma relevantly reported on the treatment received by Mr Maclean to date. As did
Dr Anand, A/Prof Varma noted Mr Maclean has general medical and psychological care and psychiatric care. As did Dr Anand, A/Prof Varma noted Mr Maclean had been admitted to hospital on occasions with suicidal ideation.
A/Prof Varma noted Mr Maclean had separated from his wife for a brief period of time in 2021 but confirmed they had since reconciled.
A/Prof Varma described Mr Maclean as teaching first aid once per fortnight and volunteering with an under-20s rugby team every Saturday. A/Prof Varma provided opinion Mr Maclean could not return to work with Fire and Rescue NSW but had capacity to work up to 16 hours each week in alternative employment in a role that does not deal with the public.
A/Prof Varma reported Mr Maclean was engaging in photography as a hobby, with him posting photographs to a Facebook page, which A/Prof Varma said Mr Maclean enjoyed. A/Prof Varma described Mr Maclean as practising meditation and doing laps in the swimming pool. A/Prof Varma said of Mr Maclean “he has not been for walks for six weeks, although before he was a bushwalker.” A/Prof Varma reported Mr Maclean’s social life is limited although “he has a couple of mates whom he has known for years and whom he meets every now and then.”
A/Prof Varma noted Mr Maclean’s current medication as Seroquel which he said he had been taking for five years, and Sertraline 200mg. A/Prof Varma provided opinion Mr Maclean’s medical management should include a continuation of his medication together with psychological and psychiatric care.
Relevant to his determination of the PIRS category of social and recreational activities, which he assessed to be Class 2, A/Prof Varma explained the following reasons for his decision:
“Mild impairment, sometimes goes for bush walk, does photography, watches TV and documentaries.”
Relevant to his determination of the PIRS category of concentration, persistence, and pace, which he assessed to be Class 3, A/Prof Varma explained the following reasons for his decision:
“Mild impairment with concentration and persistence, does photography and posts on the net.”
Relevant to his determination of the PIRS category of employability, which he assessed to be Class 3, A/Prof Varma explained the following reasons for his decision:
“can work up to 20 hrs/week. Works as first aid officer.”
A/Prof Varma assessed Mr Maclean with 7% WPI.
Review of the treating medical evidence
The clinical records of Brisbane Waters Private Hospital, Gosford Hospital and Berkeley Vale Private Hospital are in evidence, and the Appeal Panel thinks it is fair to say that the clinical records of these hospitals demonstrate that when Mr Maclean presented to hospital, he was manifestly unwell with suicidal ideation. When Mr Maclean presented to Gosford Hospital in more recent times, he was referred to Berkeley Vale “to contain acute risk, ongoing treatment and psychotherapy.” On this occasion, Mr Maclean was an inpatient for six weeks under the psychological care of Krist Thomson and psychiatric care of Dr Goriparti. With Mr Maclean responding well to psychological treatment and with adjustment to his medication, Mr Maclean was discharged into the care of his niece (following recent separation from his wife), with anticipated attendance at the hospital’s weekly day program. Dr Goriparti reported on
18 March 2021 that his treatment goal for Mr Maclean was to achieve remission and equip Mr Maclean with strategies to cope with his post-traumatic stress disorder symptoms.Mr Maclean has come under the care of Dr Metelerkamp, psychologist. In her letter dated
28 June 2021, Dr Metelerkamp wrote to Mr Maclean’s general practitioner asking whether he would consider re-referral of Mr Maclean to Berkeley Vale Private Hospital due to the severity of his symptoms. In her letter dated 2 October 2023, Dr Metelerkamp confirmed she had seen Mr Maclean once in the past 12 months, on 18 September 2023. She relevantly reported:“He presented having stabilised after a recent period where he ceased his medication. Having resumed his medication, he felt considerably improved. I plan to see Mr Maclean again at the end of October 2023 to ensure the stabilisation has persisted. Mr Maclean was provided with psychoeducation regarding medication compliance and self-care.”
Dr Metelerkamp also relevantly said of her treatment goal for Mr Maclean:
“Psychotherapy, as always, is focused on maximising day to day functioning and thereby facilitating employment capacity.”
Legal considerations
Guidelines
Chapter 1 of the Guidelines is introductory in nature and Chapter 1.32 relevantly provides for adjustment for the effects of treatment:
““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…”
Chapter 11 of the Guidelines relevantly lays out the method for assessing psychiatric impairment.
Chapter 11.8 contemplates the effects of treatment and provides:
“Consider the effects of medication, treatment, and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”
Chapter 11.11 is relevant to PIRS and provides for behaviour consequences of psychiatric disorder to be assessed on six scales, each of which evaluates an area of functional impairment, and relevantly includes social and recreation activities, concentration, persistence and pace, and employability.
Chapter 11.12 provides for impairment in each area of functional impairment to be rated using class descriptors, with classes ranging from 1-5 according to severity. Examples of activities referred to in the referenced Table 11.1-6 are noted to be “examples only”. Chapter 11.12 also provides that the assessing psychiatrist should take account of the injured worker’s cultural background and consider activities that are usual for their age, sex, and cultural norms.
Table 11. 2 of the Guidelines relevantly provides for the PIRS relevant to social and recreation activities:
(a) Class 2 – mild impairment: occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team, and
(b) Class 3 – moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friends. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Table 11.5 of the Guidelines relevantly provides for the PIRS relevant to concentration, persistence, and pace:
(a) Class 2 – mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache, and
(b) Class 3 – moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Table 11.6 of the Guidelines relevantly provides for the PIRS relevant to employability:
(a) 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 (less stressful), and
(b) 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.
Authorities
At this point it is useful to note authority the Appeal Panel considers to be central to complaint made by Fire and Rescue NSW relevant to the Medical Assessor’s determination in the PIRS categories of social and recreational activities, concentration, persistence and pace, and employability, and also relevant to the Medical Assessor’s allocation of 1% WPI for the effects of treatment.
In Ferguson v State of New South Wales[1] the court cited with approval NSW Police Force v Daniel Wark.[2] In Ferguson the court referred to Wark and noted that the Appeal Panel had directed itself that in questions of classification under the PIRS:
“‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significant or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.’
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the Approved Medical Specialist was unaware of significant factual matters if a clear misunderstanding could be demonstrated; of if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[1] [2017] NSWSC 140 (Ferguson).
[2] [2012] NSWCCMA 36.
The task of the Medical Assessor was described by the court in State of New South Wales v Kaur:[3]
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise…”
[3] [2016] NSWSC 346.
Justification of intervention by an Appeal Panel such as ours was also discussed by the court in Ferguson:
“The Appeal Panel accepted that intervention was only justified: if the categorization was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ’examples only’: see Jenkins v ambulance Service of New South Wales[4]. The Appeal Panel said, ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[4] [2015] NSWSC 33.
The matter of Ferguson was cited with approval by the court in Parker v Select Civil Pty Limited.[5]
[5] [2018] NSWSC 140.
The Appeal Panel notes the approach required to be taken when applying Chapter 1.32 of the Guidelines and making an adjustment to the permanent impairment assessment for the effects of treatment was clarified in Zoric v Secretary, Department of Education & Ors.[6] The court said Chapter 1.32 could be understood to involve, and require findings about the following steps:
i.firstly, whether there has been effective long-term treatment of an illness or injury;
ii.secondly, whether that treatment results in apparent substantial or total elimination of the injured worker’s impairment, and
iii.thirdly, whether the injured worker is likely to revert to the original degree of impairment if treatment is withdrawn.
The court said, “upon satisfaction of each step, the Medical Assessor may increase the percentage of WPI” and explained:
“… what is required by cl 1.32 … is a comparative exercise between the plaintiff’s original degree of impairment before the ‘effective’ treatment and the plaintiff’s degree of impairment following that treatment: it is only by undertaking that comparison at those times can a medical assessor (or in the present case the Appeal Panel) determine whether the treatment ‘results in apparent substantial … elimination’ of the plaintiff’s permanent impairment.”
[6] [2024] NSWSC 131 (Zoric)
In determining Fire and Rescue NSW’s appeal, we are mindful that in Campbelltown City Council v Vegan[7] the court held the Appeal Panel is obliged to give reasons. While where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based and where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[7] [2006] NSWCA 284.
Discussion
PIRS category of social and recreational activities
Fire and Rescue NSW make complaint the Medical Assessor erred in his determination of Class 3 moderate impairment. The Appeal Panel accept the Medical Assessor erred in determination of Class 3 moderate impairment relevant to the PIRS category of social and recreational activities rather than Class 2 mild impairment.
A/Prof Varma described Mr Maclean as doing voluntary work with an under 20s rugby team each Saturday. The Medical Assessor described Mr Maclean as volunteering with Eastwood Rugby Club as a manager who picks up players and takes them to the game, but said he would “mostly work one day a month.” The Appeal Panel considers such activity demonstrates an ability by Mr Maclean to be actively involved with a sporting organisation and of necessity requires Mr Maclean to leave home and address this voluntary activity without a support person.
Dr Anand described Mr Maclean as watching reruns of MASH on television. A/Prof Varma described Mr Maclean as being able to watch television and documentaries. The Medical Assessor described Mr Maclean as trying to watch TV with his wife and becoming emotional with dialogues that resonate with the work he did with Fire and Rescue NSW. A/Prof Varma noted Mr Maclean “had a couple of mates whom he has known for years and whom he meets every now and then.” The Medical Assessor said of Mr Maclean “he may go out for coffee with his mates once a week” and described Mr Maclean as “helping a guy at the moment who is coming out of the fire service. Dr Anand noted Mr Maclean had attended his brother’s birthday in Melbourne in late 2023 and noted too that each year Mr Maclean holidays in Harrington. The Medical Assessor said of Mr Maclean that he attended family weddings and Christmas functions and noted Mr Maclean always attends social gatherings with his wife. The Appeal Panel considers such activity demonstrates an ability by Mr Maclean to engage with a mass media and tolerate social situations both with and without a support person.
Dr Anand reported that while Mr Maclean did not do much exercise now, he “has been trying to push himself to go bush walking or go for walks” and A/Prof Varma described Mr Maclean as practising meditation and swimming laps in a pool. Both Dr Anand and A/Prof Varma reported Mr Maclean had taken to photographing and posting his photographs on a Facebook page, which A/Prof Varma said made Mr Maclean “feel good.” The Medical Assessor also noted that Mr McLean liked to go bushwalking and that he also would use this opportunity to take photographs, with comment this was in the context of Mr Maclean’s love of birds and snakes. The Appeal Panel considers such activity demonstrates an ability by Mr Maclean to be actively involved in a variety of recreational pursuits, albeit solitary in nature. The Appeal Panel furthermore notes that Mr Maclean likes to display his photographs on Facebook, which suggests to the Appeal Panel Mr Maclean enjoys a degree of social engagement.
Against this backdrop, the Appeal Panel determines the correct PIRS category of social and recreational activities is Class 2 mild impairment in that the evidence demonstrates
Mr Maclean engages in a variety of recreational activities and can go out to social events without needing to be accompanied by a support person.
PIRS category of concentration, persistence, and pace
Fire and Rescue NSW make complaint the Medical Assessor erred in his determination of Class 3 moderate impairment. The Appeal Panel does not accept the Medical Assessor erred in determination of Class 3 moderate impairment relevant to the PIRS category of concentration, persistence, and pace rather than Class 2 mild impairment.
Dr Anand recorded Mr Maclean reported he cannot do online courses because he struggles with concentration. The Medical Assessor reported that while Mr Maclean completed a chainsaw course, it took him three weeks to finish what was a nine-hour course. Dr Anand said Mr Maclean struggled with completing the books he was attempting to read, which Mr Maclean said were biographical in nature. Dr Anand described Mr Maclean as finding it difficult to focus and concentrate, suffering poor short-term memory and recall, and tending to leave tasks incomplete. The Medical Assessor likewise noted Mr Maclean’s inability to finish the books he was reading, his struggle with maintaining concentration, his forgetfulness, and his tendency to not finish his tasks. In particular the Medical Assessor noted Mr Maclean often started something, became distracted and then started something else. Mr Maclean rarely persisted beyond 15–20 minutes at tasks. While the Appeal Panel considers this demonstrates Mr Maclean may not essentially have a real difficulty with concentration, it clearly demonstrates Mr Maclean has difficulty with persistence and pace.
While A/Prof Varma considered Mr Maclean’s ability to engage in photography and post his photographs on a Facebook page demonstrates only “mild impairment with concentration and persistence”, with reference to the evidence discussed above, the Appeal Panel accepts the correct PIRS category of concentration, persistence, and pace is Class 3 moderate impairment, particularly noting Mr Maclean’s difficulty staying sufficiently focused to enable him to complete the books he attempts to read and complete the tasks he attempts to do.
PIRS category of employability
Fire and Rescue NSW make complaint the Medical Assessor erred in his determination of Class 4 severe impairment. The Appeal Panel does not accept the Medical Assessor erred in determination of Class 4 severe impairment relevant to the PIRS category of employability rather than Class 3 moderate impairment.
Mr Maclean said he is certified fit to work in suitable employment for 20 hours each week.
Dr Anand described Mr Maclean as working one day each week as a trainer in first aid technique and provided opinion Mr Maclean was fit to work 16 hours each fortnight in such occupation. A/Prof Varma described Mr Maclean as working one day each fortnight as a trainer in first aid technique and being engaged in volunteer work with a rugby club one day each week. A/Prof Varma provided opinion Mr Maclean was fit to work in suitable work 16 hours each week, with suitable work being “a role that does not deal with the public”. The Medical Assessor noted Mr Maclean worked one day each week as a trainer in first aid technique but described Mr Maclean’s employment as “very flexible.” The Medical Assessor also noted
Mr Maclean engaged in volunteer work with a rugby club and said he engaged in this voluntary work “mostly” one day each month. The Medical Assessor described Mr Maclean as not being able to work more than one or two days in a row and less than 20 hours each fortnight.The Appeal Panel is of the view the voluntary work Mr Maclean engages in with the rugby club does not readily demonstrate an ability by Mr Maclean to engage in paid employment because as a volunteer Mr Maclean is under no obligation to attend work or perform work.
In the context of the entire MAC, the Appeal Panel considers Mr Maclean’s voluntary engagement with the rugby club is more appropriately considered relevant to social and recreational activity, rather than relevant to employability.While the Appeal Panel accepts Mr Maclean works in paid employment as a trainer in first aid technique for one day each week (albeit A/Prof Varma recorded Mr Maclean worked one day each fortnight in this role), the Appeal Panel notes Mr Maclean’s employer is described by the Medical Assessor as flexible. The Appeal Panel also notes that while working in this role Mr Maclean has presented to hospital as significantly mentally unwell on occasion, with multiple inpatient admission. The Appeal Panel is of the view that Mr Maclean’s consistent attendance for paid employment cannot be assured and Mr Maclean’s attendance for paid employment is undependable and erratic. The Appeal Panel is also of the view Mr Maclean is unable to work more than two days in a row and less than 20 hours per fortnight (despite his reported capacity certification and opinion provided by A/Prof Varma) because Mr Maclean’s capacity certification was initially associated with his retraining and his obtaining paid employment and A/Prof Varma has recorded an incorrect history of how often Mr Maclean worked in his role as a trainer in first aid technique.
The Appeal Panel accepts the correct PIRS category of employability is Class 4 severe impairment.
Adjustment for the effects of treatment
Fire and Rescue NSW make complaint the Medical Assessor erred in his allocation of
1% WPI for the effect of treatment. The Appeal Panel does not accept the Medical Assessor erred in his allocation of 1% WPI for the effect of treatment.Mr Maclean said he had trialled various medications over the years. He said he took Cipramil between 2005 and 2015. He said he commenced taking Minipres instead of Seroquel in 2017. He said he is now taking Sertraline. Mr Maclean explained that in or about August 2023 he experienced an escalation in symptomology due to a trial of reduced Sertraline dosage but returned to baseline after resuming his normal dosage.
Dr Metelerkamp confirmed when Mr Maclean had been reviewed by her on 18 September 2023 “[H]e presented having stabilised after a recent period where he ceased his medication. Having resumed his medication, he felt considerably improved.”
Dr Anand included an adjustment of 1% WPI for the effects of treatment, but without reasoning.
The Appeal Panel is of the view the Medical Assessor’s comment, “[I]n my opinion there has been some benefit from treatment. Hence, I have made an addition of 1% for the effects of treatment” satisfies the three required steps referred to in Zoric. The Appeal Panel is of the view the evidence demonstrates Mr Maclean has enjoyed effective long-term treatment for his injury, the evidence demonstrates Mr Maclean’s treatment results in apparent substantial elimination of his impairment, and the evidence demonstrates Mr Maclean is likely to revert to his original degree of impairment if treatment is withdrawn.
CONCULSION
The Appeal Panel is of the view the Medical Assessor was in error in assessing Mr Maclean in Class 3 moderate impairment relevant to the PIRS category of social and recreational activities rather than Class 2 mild impairment. For that reason, the Appeal Panel has determined that the MAC issued on 20 November 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
The initial PIRS rating from the Medical Assessor’s assessment are 1,2,2,3,3,4 providing a medial class of 3 and aggregate score of 15 resulting in 15% WPI, which with allocation of
1% WPI for the effects of treatment results in 16% WPI. The modified PIRS rating which includes the Appeal Panel’s determination regarding Mr Maclean’s social and recreational activities with reference to Class 2 mild impairment are 1,2,2,2,3,4 providing a median class of 2 and an aggregate score of 14 resulting in 7% WPI, which with allocation of 1% WPI for the effects of treatment results in 8% WPI.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W26128/24 |
Applicant: | William Maclean |
Respondent: | State of NSW (Fire and 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 Dr Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| 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) |
| Psychological injury | 1 January 2005 | Chapter 11 pages 53-60 | Chapters 1 and 14 | 8% | 0% | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0
7
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