Transport for NSW v Ryder

DETERMINATION OF APPEAL PANEL
CITATION:	Transport for NSW v Ryder [2021] NSWPICMP 169
APPELLANT:	Transport for NSW
RESPONDENT:	Michelle Ryder
APPEAL PANEL:	Member Marshal Douglas Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	15 September 2021
CATCHWORDS:	WORKERS COMPENSATION- The medical dispute involved the assessment of the respondent’s permanent impairment from psychiatric injury; appellant submitted Medical Assessor (MA) erred with respect to his assessment because he did not give proper consideration to the evidence relating to, firstly, the respondent’s impairment in self-care and personal hygiene and in social functioning, secondly the extent to which a prior illness contributed to the respondent’s present impairment, and lastly, whether the respondent had achieved maximum medical improvement; Held - the Appeal Panel held that it was obvious from the Medical Assessment Certificate (MAC) that the MA had regard to all the evidence and that in his explanation for his assessment he referred to all parts of the evidence that were germane to his assessment; MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 June 2021 Transport for NSW (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 June 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant employed Michelle Ryder (the respondent) as a customer service team leader. The respondent suffered a psychiatric injury as a consequence of various matters to which she was exposed between 2016 and 7 August 2018 in her employment.
On 28 February 2020 the respondent’s solicitors wrote to the appellant advising it that the respondent claimed lump sum compensation from the appellant in the amount of $42,450 for a permanent impairment of 17% the respondent said had resulted from her injury. The respondent’s solicitors advised the appellant that the respondent relied on a report of psychiatrist Dr Michael Hong dated 24 January 2020 to support her claim, a copy of which they provided with their letter.
The appellant, having received that claim from the respondent, arranged for the respondent to be examined by psychiatrist Dr Graham Vickery on 7 August 2018. In a report to the appellant dated 28 July 2020, Dr Vickery provided a diagnosis of the respondent’s injury as major depressive disorder. In a subsequent report to the appellant’s solicitors, dated 20 August 2020, Dr Vickery noted that the respondent had been attending an outpatient day group at the Northside Clinic and had been making progress until being unable to attend that clinic due to COVID-19 restrictions. Dr Vickery advised the appellant’s solicitors that due to the interruption in that treatment the respondent was having, he considered the respondent had not reached “maximum medical improvement” and that in his opinion “a whole person impairment cannot be undertaken at this time”. He recommended that an assessment be carried out in 12 months from the date of his report.
In a letter the appellant addressed to the respondent dated 20 August 2020, which the appellant’s solicitors provided the respondent’s solicitors on 21 August 2020, the appellant notified the respondent that it disputed her claim for compensation for 17% permanent impairment on the basis, essentially, that it was too early to assess her permanent impairment and that she consequently had not established an entitlement to lump sum compensation. The appellant advised the respondent that it relied upon Dr Vickery’s reports of 28 July 2020 and 20 August 2020. It provided copies of those reports to her.
Thereupon the respondent’s solicitors had Dr Vickery’s reports reviewed by Dr Hong and by the respondent’s treating psychiatrist, Dr Richa Rastogi. On 28 August 2020 Dr Hong, having reviewed Dr Vickery’s reports, wrote to the respondent’s solicitors advising them that the respondent’s psychiatric condition is treatment-resistant. He further advised that he did not believe there was any further treatment that would improve the respondent’s psychological function and he considered that “MMI has been reached” with respect to the respondent.
Dr Rastogi, also having reviewed Dr Vickery’s reports, advised the respondent’s solicitors in a report dated 28 August 2020 that the respondent had reached maximum medical improvement. She advised that the day program the respondent was doing on a weekly basis was for relapse prevention. Dr Rastogi advised that further treatment would be unlikely to improve the respondent’s functioning and that the purpose of the ongoing treatment was to prevent relapse.
The respondent’s solicitors wrote to the appellant’s solicitors on 3 September 2020 and 4 September 2020, providing the appellant’s solicitors with copies of Dr Rastogi’s and Dr Hong’s reports dated 28 August 2020 and seeking that their client review, under s 287A(3) of the 1998 Act, its earlier decision refusing the respondent’s claim for compensation.
On 14 September 2020 the appellant’s solicitors wrote to the respondent’s solicitors enclosing with their letter a “s287A notice on behalf of their client”. That notice was in the form of a letter and dated 11 September 2020 and was addressed to the respondent. The appellant in that letter again declined the respondent’s claim for lump sum compensation and stated that “we consider that it is open to the insurer to decline liability for your claim pursuant to s65 and s66 of the 1987 Act”.
The respondent then registered with the Commission an Application to Resolve a Dispute seeking determination of her claim for compensation for 17% whole person impairment (WPI) from her injury. The matter was then referred to the Medical Assessor who, as stated above, issued a MAC. He certified that he had assessed the respondent to have 24% WPI from her injury of 7 August 2018.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

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 Medical Assessor stated in Part 9 of the MAC that he based his assessment of the respondent’s impairment on his mental state examination of the respondent, the clinical history he obtained and a review of the documentation that had been provided to him including the opinions of Dr Hong, Dr Vickery, Dr Rastogi and Ms Raynor Lander, Ms Lander being a psychologist whom the respondent consulted for treatment. The documentation the Medical Assessor reviewed also included several WorkCover certificates of capacity that had been issued for the respondent, correspondence from a psychologist whom the respondent formerly consulted, namely Ms Delmas, the clinical records of the general practitioner whom the respondent consulted, the clinical records kept by the South Pacific Private Hospital relating to the respondent and the clinical records the Northside Group Wentworth Clinic kept for the respondent. The Medical Assessor noted he experienced difficulty reading some of the material from the Northside Group Wentworth Clinic because it was in handwriting.
It is apparent from “Table 11.18 PIRS rating form” appended to the MAC that the Medical Assessor applied the criteria specified in Chapter 11 of the Guidelines to assess the respondent’s permanent impairment from her injury.
The appellant’s challenge to the assessment the Medical Assessor made of the respondent’s permanent impairment relates to these issues: firstly, the Medical Assessor’s classification of the respondent’s impairment in the PIRS categories of “self care and personal hygiene” and in “social functioning”; secondly, the Medical Assessor’s conclusion that the respondent had reached maximum medical improvement and as a consequence her permanent impairment was fully ascertainable; and, lastly, the Medical Assessor’s conclusion that no proportion of the respondent’s impairment was due to a pre-existing condition.
With respect to the respondent’s impairment in her functioning of self care and personal hygiene the Medical Assessor obtained the following history, which he set out in Part 4 of the MAC:
“Ms Ryder has lived by herself at her current home for four years. She has children aged 20 and 22 who live with their father. Pre-injury she ate four or five meals a day which has declined to one meal a day in the context of lack of interest and loss of appetite, and she stated that she tends to cook dinner less often these days, relying on takeaway more often or eating toast in the evening. She tends to bathe less frequently- ‘it’s terrible, once a week before I need to go to my psychologist or my group meeting once a week’. She stated that she was bathing daily before her injury. She attends to the grocery shopping every 3-4 weeks, generally avoiding leaving her house because of anxiety. She usually attends on the way back from her psychologist and combines the trip because of her anxiety and anxious avoidance. She attends to the chores every three or four days and stated that her unclean dishes pile up.”
The Medical Assessor repeated that passage in the PIRS rating form to explain his reasons for his classifying the respondent’s impairment in the category of self care and personal hygiene as 3, that is a moderate impairment. The Medical Assessor also noted within Part 10a of the MAC, when comparing his assessment with the assessment that Dr Hong had made of the respondent’s impairment in self care and personal hygiene, and who had classified the respondent’s impairment in this area as mild, that he had:
“determined a higher grade of Class 3 in the domain of self care and personal hygiene and given Ms Ryder is bathing weekly, changing her clothes infrequently and her appetite has dropped from 4 or 5 meals a day to 1 meal a day of reduced size which she does not enjoy. She would need quite intensive prompting to improve towards her base line and yet may still not reach her base line.”
With respect to the respondent’s impairment in the area of social functioning, the Medical Assessor obtained the following history which he also set out within Part 4 of the MAC:
“Ms Ryder reported that she had lost touch with her older friends, estimating that she had lost contact with around 6-8 old friends. She stated that she has a reasonable relationship with her daughter but her relationship with her son has been impacted by her symptoms, particularly because she does not work but she encourages him to work as much as possible. She stated that her relationship of nearly four years broke down in November 2020 due to her psychiatric symptoms- ‘me not willing to go anywhere, was very edgy and we started fighting a lot- on one point it got physical’. She stated, ‘it was mutual, I threw the first punch and then he retaliated, and it just went on from that point’.”
The Medical Assessor also repeated that passage within the PIRS rating 4 to explain why he classified the respondent’s impairment in social functioning as 4, that is a severe impairment. The Medical Assessor further noted within Part 10a that his classification of the respondent’s impairment in this area of functioning also differed from Dr Hong’s assessment, who had classified the respondent’s impairment as mild. The Medical Assessor explained the reason for that difference in these terms:
“I was able to uncover a history of a breakdown in her relationship in November 2020. This had been a four year relationship and the history I obtained indicated the relationship broke down in the context of her psychiatric symptoms. She stated that the relationship regressed to a point of violent interaction which she commenced because of her symptoms. It is appropriate that this is reflected in a Class 4 score because it is not my opinion that there was any other cause for this other than her mental state and symptoms emanating from her work injury.”
With respect to the s 323(1) issue, the Medical Assessor obtained a history of the respondent having suffered slight depression in 2006. He noted that the respondent had received treatment for a short period of time, including anti-depressant medication and 5 sessions of psychological therapy. The Medical Assessor noted that the respondent had completely recovered from that illness within approximately two years from the date she experienced her depressive episode. The Medical Assessor said the respondent had “no left over anxiety or depression” at the time she suffered her work place injury. The Medical Assessor revealed both within Part 8e of the MAC and Table 2 of the MAC that he considered that no proportion of the respondent’s permanent impairment was due to that pre-existing condition. He consequently did not make a deduction under s 323(1) of the 1998 Act on account of it.
The Medical Assessor also stated at Part 8b of the MAC that the respondent had reached maximum medical improvement. He detailed within Part 4 of the MAC the treatment the respondent was currently receiving for her work injury and also the treatment she had previously undergone. He also set out within Part 4 of the MAC the symptoms the respondent presently experiences from her injury. He said at Part 10 of the MAC that he considered that the respondent’s condition is stabilised, and noted that his opinion on this matter accorded with the opinions of Dr Hong and Dr Rastogi. The Medical Assessor stated:
“She has had three unsuccessful prior trials of an antidepressant, was commenced on her current antidepressant in around September 2019 when she began to see Dr Rastogi, whom she sees regularly, was prescribed adjunctive sodium valproate, is
also prescribed adjunctive prazosin and quetiapine and she has undertaken psychological therapy with two different clinical psychologists as well as weekly outpatient group therapy in a mood group for the last year since she was discharged from Northside Clinic. All of this treatment is not only reasonable and necessary but also extensive. It is hard to fault this treatment, and Dr Vickery's view that a further year of treatment from the time of his assessment is necessary does not resonate with me as the treatment has been broad and full.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not give due consideration to the evidence available to him relating to the respondent’s impairment in the area of self care and personal hygiene. Specifically, the appellant referred to Dr Hong having noted that the respondent’s self care and diet had deteriorated, that the respondent was eating only one meal a day and had gained weight, and that the respondent was capable of independent living without regular support. The appellant also referred to Dr Vickery having noted that the respondent presented during his examination of her as casually dressed and groomed, and that the respondent reported to him having reduced hygiene and grooming and living in a dressing gown and often missing showers and not washing her hair.
The appellant submitted that by classifying the respondent’s impairment as 3 for self care and personal hygiene, the Medical Assessor had based his assessment on incorrect criteria.
With respect to the Medical Assessor’s classification of the respondent’s impairment in social functioning the appellant submitted that the Medical Assessor failed to give or adequately give due consideration to the progress notes of the Northside Group and that his assessment was not in accordance with the balance of the medical evidence, specifically the treating clinical records relating to the respondent and the histories taken by Dr Vickery and Dr Hong. With respect to the Medical Assessor’s alleged failure to give or adequately give due consideration to the progress notes of the Northside Group, the appellant referred to the Medical Assessor having noted the various hospital charts and forms within these notes being handwritten and “difficult to read”. The appellant also referred to Dr Hong having recorded the respondent as being irritable and avoiding people and having reported loss of friendships and being anxious and socially avoidant and not maintaining contact with her usual friends. The appellant noted that based on that history, Dr Hong had assessed the respondent’s impairment as being Class 2.
The appellant also highlighted that Dr Vickery had obtained a history of the respondent being close to her two children. The appellant highlighted that there was a record made in the progress notes of the Northside Group on 20 August 2020 that the respondent “reconnected with her children – hopeful”. The appellant further noted that the progress notes of the Northside Group included a record on 22 October 2020 of the respondent travelling on public transport and walking a few days a week. The appellant further noted that the progress notes recorded that on 5 November 2020 the respondent reported improved sleeping and waking cycle and had been enjoying social outings.
With respect to the Medical Assessor not making any deduction under s 323(1) of the 1998 Act, the appellant submitted that the Medical Assessor did not give proper consideration to the evidence before him, specifically, that the respondent was treated for depression in 2006 and that Dr Hong had reported that “around 13 years ago, the respondent’s daughter died as a still born and that the respondent took an antidepressant for a couple of years”.
With respect to the Medical Assessor’s conclusion that the respondent had achieved maximum medical improvement, the appellant submitted that the Medical Assessor provided inadequate reasons for this conclusion. The appellant noted that this was “a contested issue”, based on the different opinions of Dr Vickery, on the one side, and Dr Hong and Dr Rastogi of the other side.

In reply, the respondent submitted that the Medical Assessor was not required to deal with every piece of evidence in a detailed way or explain why his opinion may differ from the opinion of others. The respondent submitted that the Medical Assessor’s assessment accords with the Guidelines. The respondent submitted that there is no error in the Medical Assessor’s assessment of her impairment in the categories of self care and personal hygiene and social functioning. The respondent submitted that the Medical Assessor was satisfied that she had no ongoing sequalae from her 2006 depressive episode. The respondent submitted that the Medical Assessor provided extensive reasons for his conclusion that she had reached maximum medical improvement.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Guidelines at [1.6] instruct that an assessment of “permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information”.
As Garling J noted in Jenkins v Ambulance Service of New South Wales[2] (Jenkins), the assessment of a worker’s permanent impairment from a psychiatric injury requires a Medical Assessor to determine from all the materials at the Medical Assessor’s disposal whether the impairment of the worker in each of the PIRS categories fits into one of the classes ranging from no impairment to total impairment. The Guidelines provide descriptors for each class of the several PIRS categories, but these are examples only of how a worker’s function or activity may be affected by a psychiatric condition. These examples are provided to assist the Medical Assessor to consider the ways in which a psychiatric condition may impact upon the worker’s activities and the worker’s capacity to function in the relevant area to be assessed. They place no restriction on how the Medical Assessor is to rate the worker’s impairment in a particular category. They are not prescriptive.[3]
[2] [2015] NSWSC 663 at [56].
[3] Jenkins at [57]-[60].
Campbell J in Ferguson v State of New South Wales[4] (Ferguson) cited at [23], with approval, the following passage from the decision of the Appeal Panel in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36:
“…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance 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. …”
[4] [2017] NSWSC 887.
The Appeal Panel considers that it is obvious from the MAC that the Medical Assessor had regard to all the materials at his disposal when assessing the respondent’s impairment. That material included the brief of documents the Commission forwarded to him, which included the opinions of Dr Hong, Dr Vickery and Dr Rastogi and the progress notes of the Northside Group. Consequently the Medical Assessor as part of the process of his assessing the respondent’s permanent impairment took into account the histories that Dr Hong, Dr Vickery and Dr Rastogi had obtained. The Medical Assessor expressly said he had taken this specific material into account. The Medical Assessor highlighted within the MAC the parts of that evidence that were relevant to his assessment. His statement that the progress notes of the Northside Group were difficult to read was a true statement. Nevertheless, the Medical Assessor had regard to those progress notes because he has said that he had “noted” them. There is nothing to support the appellant’s contention that the Medical Assessor did not given adequate consideration to those progress notes. Indeed, the contrary is the case in the Appeal Panel’s view.
In the Appeal Panel’s view, the Medical Assessor took into account all relevant matters within the material forwarded to him when evaluating the appellant’s impairment in the several categories comprising the PIRS, including the respondent’s ability in self-care and personal hygiene and in social functioning.
In the Appeal Panel’s view, the Medical Assessor, whilst considering all the material before him, gave pre-eminence to the history he obtained at the time of his examination. He exercised his clinical judgment in doing so, which, consistent with what was held in Ferguson, the Medical Assessor was entitled to do.
With respect to self-care and personal hygiene and social functioning, the Medical Assessor’s reasons for classifying the respondent’s impairment as, respectively, moderate and severe are clearly explained in the MAC. The Medical Assessor has clearly exposed his reasons for his classifications. The Medical Assessor has referenced those parts of the evidence that were germane to his assessment. The dramatic reduction in unprompted self-care, and infrequency of basic activities and chores are compatible with the descriptors of a moderate impairment. The Medical Assessor specifically identified further injury related impairment in social function that had arisen in November 2020, since the assessments by the Dr Hong and Dr Vickery. The Appeal Panel is of the view that it was open to the Medical Assessor, for the reasons he explained, to classify the respondent’s impairment in these areas as he has, and his assessment is supported by the evidence he has highlighted. It does not matter that other assessors may have assessed the appellant’s impairment differently, as a difference of opinion does not constitute error.
The Medical Assessor has applied the correct criteria when assessing the respondent’s impairment in the categories of self care and personal hygiene and in social functioning in that he has conducted his assessment in accordance with the instructions provided in [11.11] – [11.12] of the Guidelines.
With respect to the Medical Assessor’s conclusion that no proportion of the respondent’s impairment was due to a pre-existing condition, the Appeal Panel also considers that it was open to the Medical Assessor to come to the conclusion that no part of the respondent’s permanent impairment was due to her prior depressive episode.
The Medical Assessor observed that the respondent suffered a depressive episode some 12 years before her work place injury and that the respondent had received treatment for that for approximately 2 years and that the respondent had completely recovered from that condition at the time she suffered her workplace injury. In other words, at the time of injury, the prior condition was non-existent. In the Appeal Panel’s view, it was open to the Medical Assessor to conclude, based on the evidence, that the respondent had achieved a complete recovery from her condition and indeed that is the Appeal Panel’s view based on the evidence. Given that the Medical Assessor has found that the respondent had achieved a “complete” recovery from that condition for many years without recurrence or treatment, the Medical Assessor was accordingly right to find that no proportion of the respondent’s permanent impairment is attributable to that condition.
In the Appeal Panel’s view the Medical Assessor has clearly exposed his reasons in the MAC for his finding that no proportion of the respondent’s permanent impairment is attributable to a pre-existing condition. As indicated, those reasons are that the respondent had achieved a complete recovery from that condition.
The Appeal Panel also rejects the appellant’s submissions that the Medical Assessor did not provide adequate reasons why he considered the respondent had achieved maximum medical improvement. The Medical Assessor referred extensively to treatment the respondent had undergone for her injury and the medical treatment that the respondent was currently receiving for her injury. He concluded that the treatment was reasonable. He expressly disagreed with the opinion Dr Vickery offered that a further year of treatment in the form of outpatient group therapy was necessary. It is apparent to the Appeal Panel that that was the basis of the Medical Assessor’s conclusion that the respondent had achieved maximum medical improvement. In other words, against the background of the treatment that the respondent had received and was presently receiving, the Medical Assessor considered that further group therapy was unlikely to achieve improvement in the respondent’s condition.
In the Appeal Panel’s view it was open to the Medical Assessor, for those reasons, to conclude that the respondent had achieved maximum medical improvement and that her impairment was fully ascertainable.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 June 2021 should be confirmed.

[2021] NSWPICMP 169

15 September 2021