DETERMINATION OF APPEAL PANEL	
	
CITATION:	Martin v Busways Wyong North Pty Ltd [2024] NSWPICMP 328	
		
APPELLANT:	Michael Martin	
		
RESPONDENT:	Busways Wyong North Pty Ltd	
		
Appeal Panel		
		
MEMBER:	Deborah Moore	
		
MEDICAL ASSESSOR:	Michael Hong	
		
MEDICAL ASSESSOR:	Professor Nicholas Glozier	
		
DATE OF DECISION:	24 May 2024	
		
DATE OF AMENDMENT:	11 July 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor erred in his assessments with respect to two of the psychiatric impairment rating scale categories, namely, concentration, persistence and pace and employability; Panel agreed; re-examination occurred; the MA’s findings were inconsistent with the evidence; Held – Medical Assessment Certificate revoked.	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 14 December 2023 Michael Martin (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 
28 November 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 ground(s) of appeal on which the appeal is made. 
4.	Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5.	This matter was assessed under the Table of Disabilities.
PRELIMINARY REVIEW
6.	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.
7.	As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Panel determined that the Medical Assessor erred in that the history he obtained from the worker was deficient, and his assessments in some of the psychiatric impairment rating scale (PIRS) categories were incorrect, having regard to the whole of the evidence.
EVIDENCE
Documentary evidence
8.	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
9.	Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 15 May 2024 and reported to the Appeal Panel.
SUBMISSIONS 
10.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
11.	In summary, the appellant submits that the Medical Assessor erred in respect of his assessments with respect to two of the PIRS categories, namely concentration, persistence and pace (cpp) and employability.
12.	In reply, the respondent submits that the Medical Assessor has incorrectly recorded only one class 3 rating. This has resulted in an obvious error in the aggregate score recorded as 13, when the total aggregate score is 14. This however does not impact on the final assessment of 7% WPI made by the Medical Assessor, and the MAC should be confirmed.   

FINDINGS AND REASONS 
13.	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. 
14.	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.
15.	The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury deemed to have occurred on 25 May 2021.  
16.	The Medical Assessor set out the history he obtained as follows:
“He reported micromanagement, unreasonable complaints. In the context of this he experienced low mood, anxiety, anhedonia, social avoidance and withdrawal, sleep disturbance and reduced self- esteem. There is a history of PTSD however there was no reported functional impairment on treatment prior to subject injury.”
17.	The Medical Assessor then briefly set out details of Mr Martin’s present treatment and symptoms.
18.	When asked to provide “Details of any previous or subsequent accidents, injuries or condition” the Medical Assessor said:
“In the 1980s he was exposed to trauma while working in the Family Court in Parramatta. He was subsequently diagnosed with PTSD and treated with psychological therapy. Although some mild symptomatology persisted there was no functional impairment prior to the index injury.”
19.	As regards his social activities and activities of daily living (ADL’s), the Medical Assessor said:
“Reduction in social activities. Able to travel independently. Dislike of crowds. Not working. Eats snacks mainly. Can participate in household chores and care for granddaughter when needed. His daughter is expecting and his care of his granddaughter has increased he cared for her 6 days last week.”
20.	Findings on examination were reported as follows:
“Appeared his 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.”
21.	The Medical Assessor diagnosed persistent depressive disorder.
22.	The Medical Assessor assessed 7% WPI.
23.	He then turned to consider the other medical opinions and documents before him and said:
“Dr Kumagaya 21/4/22 17% Dr Kumar 19/7/22 5%.
Areas of disagreement: Self care I agree with Dr Kumagaya. There is reduction of self care. Social / recreational I agree with Dr Kumagaya. He has withdrawn from significant activities. Travel I agree with Dr Kumagaya. He struggles however is able to travel independently when necessary in the local area. Concentration I agree with Dr Kumar. He is able to concentrate on for example crosswords and sudoku. Employability I have assessed as class 3 he has impairment but has demonstrated the ability to significantly care for granddaughter.”
The submissions
24.	The appellant’s submissions as regards cpp may be summarised as follows:
(a)	there is no evidence that the appellant has capacity to undertake a basic retraining course, or a standard course at a slower pace. Relevantly, the Medical Assessor did not consider whether, or make any finding that, the appellant had such capacity;
(b)	there is also no evidence that the appellant can focus on intellectually demanding tasks for periods of up to 30 minutes before feeling fatigued or developing a headache. It will be noted that the Medical Assessor made no such finding of an ability to focus for that period;
(c)	in providing an assessment of mild impairment, the Medical Assessor did not have regard to the criteria set for this class in the PIRS category of cpp. The Medical Assessor made his decision on the basis of: “Subjectively impaired concentration. Difficulty following complex tasks. Is able to do crosswords and sudoku”;
(d)	the Medical Assessor did not properly assess the appellant and that it appears that he simply relied upon out-of-date information and this is simply not permissible. Even basic information such as the age of the appellate, which is relevant in terms of assessing his function is incorrect in that the doctor is out by 10 years;
(e)	the very brief two line assessment for this category is insufficient for a proper assessment to be made; 
(f)	there is no history provided in the body of the report in respect to the ability to complete sudoku or crosswords. It appears that the Medical Assessor did not question the appellant at all in this respect but simply relied upon an assessment that was conducted approximately 16 months prior. It is impermissible to simply rely upon such an assessment and not conduct his own assessment;
(g)	the Medical Assessor noted that he prefers the Assessment of Dr Kumar, however, failed to provide the reasoning for his preference;
(h)	the Medical Assessor failed to consider the criteria for Class 3, and
(i)	The Medical Assessor did not seem to investigate at all the difficulties found by Dr Kumagaya, but simply relied upon a history provided 16 months ago.
25.	As regards the category of employability, the appellant submits as follows:
(a)	the Medical Assessor’s reasoning in this category is insufficient as caring after a grandchild does not equate to tasks required to be performed for employment, specifically in circumstances where the child is primarily cared for by other adults, as is the case here. It is acknowledged in the report that there are numerous other adults in the household, but there is no clarification as to who is the primary carer for the grandchild. Simply put, there is insufficient investigation and assessment;
(b)	it appears the Medical Assessor failed to consider that the appellant’s wife is the primary carer of their granddaughter and has subsequently, misinterpreted the appellant's history, and
(c)	it does not appear that the Medical Assessor carried out his own assessment and findings, but rather relied on outdated medical reports. The Medical Assessor did not properly investigate the appellants circumstances in respect to this category. There is insufficient detail of any proper examination as to the appellant’s employability.
26.	The respondent submits as follows:
(a)	there is a presumption of regularity with respect to how the Medical Assessor  conducted his examination of the appellant, and given that, it is to be presumed, unless there is evidence to substantiate the contrary, that the Medical Assessor  did carry out his own assessment and findings. There is no evidence submitted by the Appellant to rebut that presumption;
(b)	in making the class 2 impairment assessment of cpp, the Medical Assessor  provided adequate reasons, and
(c)	in making the class 3 impairment assessment for employability, the Medical Assessor provided adequate reasons.
Discussion
27.	As stated earlier, the Panel agreed with the thrust of the appellant’s submissions in the categories appealed in that the Medical Assessor did not provide sufficient explanation in reference to the guides and this constitutes error. 
28.	Medical Assessor Glozier reported to the Panel following his re-examination as follows:
“1. The worker’s medical history, where it differs from previous records
Mr Martin was a little unsure but he confirmed that he had seen a psychologist for the resurgence of his PTSD in late 2020 caused by the court case related to the bombing some years agio. However he believes he only saw her once and had no further treatment until that occasioned following the workplace injury. I note in his statement he talks about how his PTSD had been aggravated and that the lack of support by the management for his mental health problems as part of his workplace injury. He and all the other assessing doctors commented on how the workplace injury was an aggravation of a pre-existing condition. I note this was not identified by the MA nor any apportionment made under Section 323. However this has not been raised by the parties.
He continues to see his psychologist, Robbie Matek, every fortnight or so via telehealth. He describes a generally supportive psychotherapy with little engagement in behavioural activation, thought-challenging or other strategies. He sees his GPs via telehealth regularly but not frequently. He last saw them face-to-face about six months ago as he finds travelling to Parramatta difficult. He has not seen a psychiatrist for a considerable period of time and sees no other specialists. He takes Duloxetine 120mg, a combination blood-pressure tablet, and occasional over-the-counter Nexium. He takes no painkillers, and has not used medicinal cannabinoids or any of the new re-purposed medications. He reported no hospitalisations or clinic attendance.
He does little in the way of wellbeing activities. He says he gets out of breath easily and has aches and pains so does minimal activity. He will occasionally go for a little walk ‘out the back’ but could not think of much that he does, as well as being limited financially.
He reported no new physical conditions, operations or injuries.
He drinks alcohol daily. He drinks between 3 and 4 cans of Toohey’s, starting around midday but drinking them slowly until he goes to bed around 7:30pm.
2. Additional history since the original Medical Assessment Certificate was performed
Current situation
He continues to live with his wife. His daughter moved out some time ago, living with one of their sons in Morisset. However she works locally and so will drop by on Monday when they look after the granddaughter on a weekly basis. This appears to be the only thing that breaks up what is otherwise a week characterised by lack of purposeful activity and with few demands. They have a new grandson whom they see less frequently. He has reasonably frequent contact with the three children and they are due to go out for Mother’s Day next week. However he reported little social activity or even significant interaction with his wife. They seem to live somewhat separate lives, e.g. preparing their own meals. He does much of the cleaning around the home as ‘I can’t stand a dirty house.’ He tries to do the grass but says he can no longer tolerate heat over 20 degrees. He cannot explain why this is. He described no difficulties in washing and basic self-care. He will prepare some basic meals, e.g. frozen meals but otherwise just snacks and does not focus on any healthy diet. He had not made any friends when they moved to the Central Coast, in part because of his shift work. However he has no apparent social contact with anyone and people do not contact him. He has little interest in this.
He goes to bed around 7pm or 7:30pm. He falls asleep easily, sleeping for around 5-6 hours and then waking up in the early hours of the morning. He is then awake for several hours but lies in bed thinking, gaining 1-2 hours sleep later in the night. He generally wakes with nightmares. He says these predominantly focus around buses, people ‘having a go at him’ or of him being stuck, but also can at times relate to bombs and gun from the incident many years ago. (He did not appear to be particularly more distressed when briefly describing this.) He rarely has such intrusive phenomena during the day. When he wakes he says he doesn’t feel too bad in the morning. He will make himself a cup of coffee and watch the news. He does a few odd jobs around the home, will browse the news on the internet and tries to read the paper but he finds he cannot concentrate on a whole article. He spends some of the day watching TV. He says he cannot watch serials that drop weekly because he cannot recall the story from week-to-week and so will just watch fairly undemanding programmes such as those around antiques or cars. He described no hobbies, interests or little motivation to do these. He has not volunteered for any activities and feels he cannot concentrate even to take basic courses or do more on the internet.
Although he can drive and says he is fine in the car, he finds heavy traffic difficult. He is particularly concerned by large Utes, people driving near him and describes some degree of hypervigilance around this. As a result he prefers to not drive long distances. They have not had any holidays or short breaks for many years. He tries not to leave the home but will do if he has to. If he has to go shopping he gets in and out quickly and avoids busy times. If he sees there are too many cars in the car park he will turn around and go home. He can have symptoms of hyperarousal but has not had a full-blown panic attack for about a year. He was in Service NSW when he became highly flustered trying to organise basic paperwork for his licence. Although he feels safe at home and in the car, he feels aroused, vigilant, and unsafe outside. He fears people being threatening towards him and in particular can’t stand anyone getting close to him or within his body space where he becomes very aroused and jumpy. He can’t quite explain why this is. He also cannot tolerate people who might have unpredictable behaviour. He avoids anything on TV or the news if it is particularly violent and very specifically anything concerning harm or violence to children (he became quite distressed speaking about this). He worries about money, the case, and really only enjoys interactions with his daughter and granddaughter, with little interest/motivation for anything else.
3. Findings on clinical examination
Mr Martin was well-kempt. He appeared quite anxious, a little agitated, and was tearful when describing harm to children. There was an occasional wry smile. He at times lost track of what he was saying, had to track back on his thoughts, check his notes and appeared to occasionally blank. He describes a fairly dysphoric mood, characterised predominantly by anxiety and fear. He is not fully anhedonic but enjoys little. He described a normal, but broken biphasic, sleep duration with nocturnal nightmares, predominantly of transport-related incidents. He described low levels of energy, minimal motivation, negative self-cognitions, self-esteem, avoidance, fear, safety behaviours, hyperarousal. He notes difficulties in concentrating, focusing and so does little cognitively.
Summary
Mr Martin describes previous Criterion A events that were re-triggered prior to the onset of the injury, but continued working and then decompensated dramatically over the course of his injury with his most recent employers. He continues to meet the criteria for a Post-Traumatic Stress Disorder and his picture is dominated by anxiety, fear and avoidance rather than low mood. His mood characteristics are best subsumed as part of the mood characteristics of PTSD rather than a co-morbid Major Depressive Disorder. Although he drinks daily, he does not have any of the characteristics of substance abuse and has shown no escalation or other forms of dependency. He does not abuse any other drugs.
Concentration, persistence and pace: there were lapses in concentration and focus apparent during the assessment. He describes difficulty focusing, retaining material, being able to only read short amounts or watch one episode of a TV show. This is a moderate impairment – Class 3.
Employability: With his significant avoidance, fears, hyperarousal, anergia and demonstrable little in the way of any purposeful activity, I cannot see how he can be employable on the open job market. He and his wife share what is a fairly minimal activity of looking after the granddaughter one day a week, which he can do at home and cannot be replicated in the open job market: a total impairment – Class 5.”
29.	The Panel agrees with the comprehensive assessment of Medical Assessor Glozier. It is consistent with the evidence he elicited in his thorough examination of Mr Martin.
30.	The ratings in ascending order, 222 333, comes to 19% WPI.
31.	For these reasons, the Appeal Panel has determined that the MAC issued on 
28 November 2023 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W6035/22	
Applicant:	Michael Martin	
Respondent:	Busways Wyong North Pty Ltd	

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
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 WorkCover Guides 	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
	% WPI 	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)	
1. Psychological injury	25 May 2021 (deemed)	Chapter 11 p.54-60	Chapter 14	
15%	
     0%
	
        15%	
2.					
		
3.					
		
4.					
		
5.					
		
6.					

Total % WPI (the Combined Table values of all sub-totals)                          
	
                      19%