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

[2024] NSWPICMP 240

DETERMINATION OF APPEAL PANEL
CITATION:	Walke v State of New South Wales (NSW Police Force) [2024] NSWPICMP 240
APPELLANT:	Belinda Walke
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	24 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant alleged error in the assessment under two of the categories under the psychiatric impairment rating scale, namely, social and recreational activities and social functioning; error found; re-examination considered necessary; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 31 October 2023 Ms Belinda Walke (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
   17 October 2023.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

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

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. The appellant requested that she undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

EVIDENCE

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 

Further medical examination

1. Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker and reported to the Appeal Panel.

SUBMISSIONS

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

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

3. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   Date of injury: 28/7/21 (deemed)

   ·    Body parts/systems referred: psychological

   ·    Method of assessment: WPI”

4. The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. psychological	11	11	9	9
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					9

1. The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS). There is clear error in the first part of the table that identifies the name of a different worker and the occupation of a different worker and an incorrect date of injury which presumably pertains to a different worker. This part of the table is not reproduced here. The balance of the Table being the substance of the PIRS assessment (set out below) does pertain to the appellant as the specific details contained therein corresponds with the history taken on the day of assessment:

“Table 11.8: PIRS Rating Form

Psychiatric diagnoses

1. PTSD

2.

3.

4.

Psychiatric treatment

Psychology, GP, medication

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

2

Reduction in self care

Mild impairment.

She is able to live independently and care for children but relies on her husband

Social and recreational activities

2

Reduced social functioning. Has withdrawn from social activities

Did go on a family holiday. Is able to go swimming at the beach and meet her friend.

Travel

2

able to travel without support to familiar places such as school drop off.

Social functioning

2

strain on relationship with husband

Loss of some friendships

Concentration, persistence and pace

3

Subjectively impaired concentration

Able to concentrate on yoga flow

Employability

5

Unable to work

Score

Median Class

2

2

2

2

3

5

2

Aggregate Score Impairment

Total

%

+

+

+

+

+

16

9%

1. The worker appealed.

2. The appeal concerned the assessments made under two of the PIRS categories, namely Social and Recreational Activities and Social Functioning.

3. In summary the appellant submitted that the path of reasoning of the Medical Assessor was so inadequate as to constitute demonstrable error.

4. In summary, the respondent employer, the State of New South Wales (NSW Police Force) (the respondent), submitted that whilst the Medical Assessor did make some factual errors he did not make a demonstrable error and nor did he make an assessment on the basis of incorrect criteria and the path of reasoning was adequately explained and the MAC should be confirmed.

5. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone.  A path of reasoning adequate to understand the basis on which the assessment is reached must be disclosed.

6. The Medical Assessor recorded a history as follows:

   “Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   She lives in [redacted] with her husband [redacted] of 13 years and her 2 children age 10 and 12.

   She describes increasing anxiety, depression, irritability and nightmares related to traumatic exposure at work.

   She said that she previously saw a psychiatrist and has been trialled 2 antidepressants which she could not tolerate.  She has discussed TMS and ECT and is not interested in these treatments.

   ·    Present treatment:

   She sees 2 GPs.  She sees a psychologist fortnightly.  She is no longer seeing a psychiatrist.

   She is treated with prescribed CBD oil.

   Present symptoms: ongoing low mood, poor sleep, rumination, feelings of anxiety, feelings of hopelessness, poor concentration.  She reports nightmares related to past traumatic experience which have decreased in frequency with the CBD oil.

   ·    Details of any previous or subsequent accidents, injuries or conditions:

   nil

   ·    General health: she has high blood pressure and high cholesterol.  Otherwise fit and well.

   ·    Work history including previous work history if relevant:  She last worked on 27/8/21.  She first worked for the police in 1999.

   Social activities/ADL: she is able to get her children ready for school and do the pick up and drop off.  She goes swimming at the beach.  She performs flow yoga routines 30 minutes to an hour a day.  She plays music on her guitar.  Her husband does more of the cooking.  They have a cleaner as she finds the cleaning overwhelming.  They went on holiday to Balina in April 2023.  Her husband drove and she stayed with her daughter in the apartment.  Her relationship with her husband has been fragile at times and she has had to stay with her mother on a few occasions.  She maintains close relationship with 1 girlfriend.”

7. The appellant noted that the history contains a factual error in that the appellant has never suffered from high blood pressure or high cholesterol. Combined with the other factual errors in the table (wrong worker’s name, occupation and date of injury), the appellant says she can have no confidence in the assessment.

8. The Medical Assessor recorded his findings on mental state examination as follows:

   “Appeared her stated age. Flat affect. Nil abnormal psychomotor activity. Depressed and anxious mood. Oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. Nil formal thought disorder. Nil delusions or hallucinations. No thoughts of harm to others. No suicidal ideation today or immediate plan.”

9. The Medical Assessor diagnosed post-traumatic stress disorder and considered the appellant consistent in her presentation.

10. This was a case in which both IMEs had made significant impairment assessments. The extent of the reasoning by the Medical Assessor as to why his opinion differed was as follows:

    “Dr Snowdon 15/11/22 WPI 16%

    Dr Saboor 17/2/23 WPI 19%

    Areas of disagreement:

    Social and recreational activities – I prefer Dr Saboor – she has some activities including going to beach and meeting a friend.

    Social Functioning – I prefer Dr Snowdon – there has been strain on her relationship with her husband but he remains supportive.  She maintains a good friend who she sees regularly.

    MMI has been reached- her condition has stabilised and there are no plans for any significant changes to treatment.”

11. In making the assessments complained about on appeal, the Medical Assessor’s reasons were limited to the following:

Social and recreational activities	2	Reduced social functioning. Has withdrawn from social activities
		Did go on a family holiday. Is able to go swimming at the beach and meet her friend.
		Social functioning	2	strain on relationship with husband
				Loss of some friendships

1. The Appeal Panel was satisfied that the reasons of the Medical Assessor, even when the MAC is read as a whole, were so inadequate that the Appeal Panel was satisfied as to error. In these circumstances the Appeal Panel considered that a re-examination was necessary.

2. In these circumstances of a finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Michael Hong was appointed to conduct the re-examination and he reported to the Appeal Panel as follows:

   “1. Update history

   I began by explaining my role in the Appeal Panel. Ms Walke was tearful for most of the assessment and reported that her anxieties had heightened in the lead-up to this assessment, and reported being distressed due to the appeal process and having discovered that a Desktop surveillance had been performed on her. She said she had never done anything wrong in her career and felt that she should not have been treated this way. She also discussed problems when seen previously by the Medical assessor, whose October 2023 certificate is being appealed.

   Ms Walke is 43 and lives with her husband, who is a police officer. They have a 12-year-old son and 11-year-old daughter. She was a police officer for 22 years and reached the rank of a Detective Sergeant, and last worked in August 2021 and had been medically discharged in September 2022. She has not performed any study or work since then. She confirmed the history in the Appeal package and confirmed her work injury.

   Ms Walke has continued treatment but has not felt improved. She reported having poor concentration. She needs to set phone alarms and use notes to remind herself of different tasks. She said she had forgotten to pick up her son and he called her as it was after 3pm. She had also forgotten to pick up her daughter, who was at her school across the road from home. Ms Walke said when she does the school pick-ups, she avoids contact with other parents and avoids talking to them. She reported she burns the food at home all the time and she has forgotten her key several times, and this is upsetting because normally she is ‘very sharp’.

   In terms of friendships, Ms Walke said she no longer talks to any of her previous friends. I asked her about the one friend she had when last seen by the MA, she said that she had one friend who is not a police officer and they used to go to the beach and swim together. They saw each other once a week, however, since October 2023, she has withdrawn from her as well.

   She said occasionally she goes to the beach and she goes by herself now. She goesto the local pool more frequently, and when she goes, she avoids times when there are other people there.

   Ms Walke said she stays at home by herself generally and doesn't know what she does with her time.

   I asked her about the specific activities noted in her file. She said she has been practising yoga for about 20 years and that she still does yoga for half an hour every day at home. It doesn’t require any focus, as it is second nature to her.

   She said she no longer wears makeup. She has discarded all of her police uniforms and she said she doesn’t even blow-dry her hair as it reminds her of getting ready to go to work as a police officer.

   Ms Walke has been married for 12 years and she said the marriage is under intense pressure. A couple of times she has moved back to her mother’s place for one or two nights to ‘regroup’, as she felt that she couldn’t cope with him, especially when he talks about police at work. They have arguments. They are not intimate anymore. She said she has thought about getting a rental property to move out but hasn’t done so.

   She looks after the children but not as well as she used to. She gets them ready for school in the morning.

   Ms Walke's parents live half an hour away and she stated they are not very close anymore. She said that normally she was the one that brought everyone together and organised family parties, but she has not done this for years. She doesn’t go to any parties either. Sometimes her parents pop in but it gets tense and she feels agitated. She said she feels ashamed talking to them because she is no longer a police officer.

   Ms Walke's only sibling is a younger sister. She said that there has been a ‘longstanding problem’ with her sister for maybe five years. Her sister went through domestic issues and she gave her sister advice but it wasn't well received, and led to arguments. They stopped talking towards the end of her police career. Her sister had lived in Bronte and now Rose Bay and has two children. She said they lead a very different lifestyle; they don’t maintain contact anymore.

   In terms of trips away and holidays, Ms Walke said that she told the MA the only trip she had was to Ballina because her son was playing representative cricket. She didn’t want to go. After a lot of discussion with her psychologist, she decided that she would go as she didn’t feel safe for her family without her being nearby (Ballina is 6 hours away), and she also didn’t want her son to miss out. Ms Walke didn't go to the games and stayed in the rental apartment with her daughter and said that even during that trip in early 2023, she had a session with her psychologist via telehealth.

   Ms Walke described being an accomplished guitar player and has been playing since she was ten. She attended a performance arts high school. She said she plays everything, such as ballads, rock and jazz, and said that it is her happy place. She plays at home and finds it therapeutic, and said she derives a lot of joy from it but some days, she won’t play. Overall she has been playing more now because she is not working and she has more time.

   ·    Present treatment:

   Ms Walke is taking prescribed CBD oil (cannabis) and reported having had significant side effects with 2 previous antidepressant medications. She continues to consult Krista Hawke, psychologist usually every 2 weeks. She has not consulted a psychiatrist for a couple of years and has never had TMS, ECT or inpatient management.

   ·    Present symptoms:

   She avoids situations people and crowded places. She described chronic anxiety and depressive symptoms, hypervigilance and being ‘paranoid’, with major difficulties being outside her home. Her sleep is better on CBD oil but remains poor, and she often wakes up sweaty and drenched. She has nightmares 1-2 times per week, and more in recent times as she has been anxious regarding the assessment today. She has not had suicidal ideation. She is quick to lose her temper, and her children commented to her ‘what is wrong, why are you angry?’ She said she removes herself when angry.

   Her concentration and memory are poor. She thinks she lost some weight recently but she does not weigh herself. She has distressing memories related to police jobs.

·    Details of any previous or subsequent accidents, injuries or condition:

There is no subsequent psychological injury identified.

·    general health: 

There is no new medical diagnosis after the previous MA’s assessment.

She said she does not have hypertension or high cholesterol and this was incorrectly recorded in the previous MA's assessment.  

2.FINDINGS ON PHYSICAL EXAMINATION

Ms Walke was assessed by video. She was at home on her own. She told me that she had notes next to her and that she would not be able to recall information reliably without them. She had long curly hair and was psychologically fragile, and cried throughout the assessment. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was consistently restricted in her affect range and reactivity. She spoke spontaneously and fluently. She said she was relieved she did not have to discuss the circumstances of her work injury, and confirmed the history in her file.

3.FILE REVIEW

The Panel noted the reports from Dr Peter Snowdon and Dr Assad Saboor, both IMEs assessed Ms Walke as having 19% (Dr Snowdon miscalculated it as 16%), but with different ratings in the PIRS.

In terms of social and recreational activities, Dr Snowdon rated 3 but incorporated information that should have been assessed in another category, and therefore he may have over-rated her impairment.

In terms of social functioning, Dr Saboor rated 2 and noted that she is talking about moving out from home, and he wasn’t aware they had separated briefly a couple of times. As Ms Walke has separated from her husband at times, a rating of 3 is more accurate.

4.SUMMARY

·    summary of injuries and diagnoses:

On reassessment, Ms Walke reported her treatment remained unchanged after the last assessment. There are no subsequent intervening factors. While there has been some fluctuation in her symptoms, overall she maintained a steady state and MMI has been reached. She has not gained substantial remission from Post-traumatic stress disorder or Major depressive disorder.

Table 11.8: PIRS Rating Form

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

2

From Dr Chew’s MAC

Social and recreational activities

2

She engages in regular solitary activities without prompting or a support person. She was going to the beach with a friend, and this ceased after October 2023. She swims in the local pool and does yoga at home. She does not go to parties.

Travel

2

From Dr Chew’s MAC

Social functioning

3

Ms Walke's relationship with her husband has deteriorated and they separated a couple of times. She looks after her children, but not as well as previously. She does not have contact with any friends now. The relationship with her parents has declined. She had a fallout with her sister, and her psychological injury was part of the problem.

Concentration, persistence and pace

3

From Dr Chew’s MAC

Employability

5

From Dr Chew’s MAC

Score

Median Class

2

2

2

3

3

5

=3

Aggregate Score Impairment

Total

%

+

+

+

+

+

17

19”

1. The Appeal Panel adopts the findings and the report of Medical Assessor Hong.

2. This means that the MAC will be revoked and a new MAC issued certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	28 JULY 2021	11, page 55-60	14	19%	n/a	19%
Total % WPI (the Combined Table values of all sub-totals)					19%

1. For these reasons, the Appeal Panel has determined that the MAC issued on
   17 October 2023 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5012/23
Applicant:	Belinda Walke
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 Gerald Chew 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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	28 JULY 2021	11, page 55-60	14	19%	n/a	19%
Total % WPI (the Combined Table values of all sub-totals)					19%