Aggreko Generator Rentals Pty Ltd v Devine
[2024] NSWPICMP 626
•4 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Aggreko Generator Rentals Pty Ltd v Devine [2024] NSWPICMP 626 |
| APPELLANT: | Aggreko Generator Rentals Pty Ltd |
| RESPONDENT: | Sonia Devine |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 4 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS); social and recreational activities, social functioning and concentration, persistence and pace; “class descriptors”; Jenkins v Ambulance Service of New South Wales ; re-examination; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 December 2023 Aggreko Generator Rentals Pty Ltd (Aggreko) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Himanshu Singh, who issued a Medical Assessment Certificate (MAC) on 20 November 2023.
Aggreko relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in the assessment under the Psychiatric Impairment Rating Scale (PIRS) table for social functioning. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Devine was employed by Aggreko as an operations coordinator. She suffered a psychological injury as a result of events in the course of her employment which is deemed to have occurred on 20 November 2019.
On 20 August 2021 icare, on behalf of Aggreko declined Ms Devine’s claim for permanent impairment compensation because the injury had not resulted in at least 15% whole person impairment (WPI), because her condition had not reached maximum medical improvement and because part of any impairment suffered was a result of a secondary psychological injury.
Despite that notice, the application filed by Ms Devine was referred directly to the Medical Assessor who prepared the MAC dated 20 November 2023. The Medical Assessor assessed 16% WPI.
One of the grounds of appeal raised by Aggreko was that the Medical Assessor had not considered if Ms Devine suffered a secondary psychological injury. Section 65A of the Workers Compensation Act 1987 (the 1987 Act) precludes the payment of permanent impairment compensation for a secondary psychological injury. As an issue which goes to the liability to pay compensation, the question of whether there is a secondary psychological injury must be determined by a Member of the Personal Injury Commission and the President’s delegate referred the issue to a Member. The Certificate of Determination dated 4 April 2024 prepared as a result of a preliminary conference merely reads:
“By and with the consent of the parties, the Commission determines:
1. The matter is remitted to the gatekeeper/delegate to process the appeal under section 323 (3) of the Workplace Injury Management and Workers Compensation Act 1998.”
The Certificate of Determination is devoid of any consent findings and consequently unhelpful to explain what was agreed by the parties. The referral back to the President’s delegate was made by consent. The only inference we can draw from the remitter in that form is that the parties agreed, with the assistance of the Member, that there was no secondary psychological injury and that any impairment assessed resulted from the injury on 19 November 2020.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of our preliminary review, we determined that Ms Devine should undergo a further medical examination because the MAC did not contain a description of Ms Devine’s social activities and activities of daily living to support the assessments made under the PIRS. The reasons he gave for the assessments for social and recreational activities and social functioning are inconsistent with the brief history in the MAC. A re-examination was necessary to obtain the history to resolve those errors.
Medical Assessor Hong undertook that examination, limited to the PIRS tables which were the subject of the appeal. His report forms part of this decision.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Aggreko submitted that the Medical Assessor applied incorrect criteria when assessing social and recreational activities, social functioning and concentration, persistence and pace. It said that each assessment should be lower.
With respect to social and recreational activities, Aggreko said that the Medical Assessor’s assessment was inconsistent with the history he obtained and with the notes of Ms Devine’s psychologist.
Turning to social functioning, Aggreko said that the Medical Assessor considered Ms Devine’s functioning at the time she separated from her husband and ignored the fact that she had formed a new relationship.
With respect to concentration, persistence and pace, Aggreko said that the Medical Assessor erred in assessing Ms Devine in class 2 when she had commenced a diploma in paramedicine in June 2022 and her psychologist reported in 2023 that she was passing her course.
Aggreko made submissions about the Medical Assessor’s failure to consider if part of the impairment was the result of a secondary psychological injury. It did not identify the cause of any such injury. For the reasons set out above, we have not further considered those submissions.
In reply, and in submissions prepared by Mr McManamey of counsel, Ms Devine submitted that Dr Teoh, qualified on her behalf, did not diagnose a secondary psychological injury. Ms Devine quoted from Garling J’s decision in Jenkins v Ambulance Service of NSW[1] (Jenkins), saying that his Honour set out the principles to be applied when assessing psychological impairment.
[1] [2015] NSWSC 633.
Ms Devine said that any social and recreational activities she undertakes are with family or a close friend and were consistent with assessment in class 3. With respect to social functioning, Ms Devine said that one of the “descriptors” in class 4 is the inability to form new relationships. She said that the fact that the Medical Assessor acknowledged that she had a new relationship, which explained why the assessment was in class 3 and not class 4. With respect to concentration, persistence and patience, Ms Devine said that the course in February and March 2023 to which her psychologist referred was a seven day workshop and that the psychologist’s notes confirm that she was struggling to pass a very basic course of only seven days.
Ms Devine said that Aggreko did not relate its submissions to the descriptors in the PIRS and did not make out a case as to why the findings were not consistent with those descriptors. She said that Aggreko was merely cavilling with the Medical Assessor’s assessment, which is described as a matter of discretion in Jenkins.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].
Our task as a Medical Appeal Panel is to determine if the Medical Assessor has made a demonstrable error or applied incorrect criteria. We cannot substitute our own view for that of the Medical Assessor unless he made an error within the meaning of s 327(3) of the 1998 Act.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The descriptor of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. What follows in each class are examples which may demonstrate the level of impairment.
In part of the decision in Jenkins to which Ms Devine’s submissions did not refer, Garling J noted that the Ambulance Service submitted that the class descriptors were the initial words in each class of each table of the PIRS (e.g. Class 2 – mild impairment):[4]
“The Ambulance Service submitted that these are the words which properly fall within the phrase ‘class descriptors’ which rate impairment according to severity. The nomination in the PIRS Table of a figure with respect to each functional area of activity was sufficient to indicate that the AMS, and the Appeal Panel, had adequately addressed each of these class descriptors, and had reached a conclusion in respect of them. The Ambulance Service submitted that the balance of the material in each of the Tables constituted nothing more than examples of activities, or disabilities which might support the particular class descriptor.”
[4] At [49].
Garling J accepted that submission and the extract from Jenkins in Ms Devine’s submissions stops before Garling J’s conclusion:[5]
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[5] At [59].
The reliance in Ms Devine’s submissions on the examples in the PIRS as descriptors is not supported by Jenkins. The fact that one of the examples in a particular class is relevant or not relevant does not of itself mean that assessment in that class is appropriate.
The MAC
The Medical Assessor set out a detailed history relating to the onset of the injury but included limited information about her daily life:
“Ms Devine hasn’t worked for the last 4 years; she has been studying since June 2022 for a diploma in paramedicine (emergency health care services).
Ms Devine is currently living with mum and dad, and she is not working. She has been trying to engage in the course and it gives her something to work on. She is working on her rehab to get back into the workforce. She has good weeks and has bad weeks where she can’t study. She mainly does online studies, has done face-to-face workshop, and couldn’t handle the second one due to her anxiety.”
The Medical Assessor summarised Ms Devine’s treatment and present symptoms, which included limited further information about her activities of daily living;
“Ms Devine can be really bad for 2-3 days and it keeps changing and keeps changing her routine as well. Treatment helps her and will take diazepam when she needs it for her anxiety. She has psychology sessions, and going to the gym and exercise physiology sessions helps her a lot. She may get a panic attack at home keeps thinking about what happened at work, have panic attacks in social situations, feels uneasy or itchy, may tremble a lot and fidgety and keeps shaking. She told me that her mood varies depending on her day and triggers, and it’s up and down. She may hang out with Emily and may have a good time and then struggle to cope on the second day. She struggles to go out and has social anxiety, motivation and energy has been up and down, makes an effort every day and forces herself to do things. She enjoys running and goes a lot for it to exert and may not enjoy but just does it. Sleep has been very poor for the last four years, can’t sleep through the whole night, was getting nightmares in the beginning, but has been less now, and her appetite is variable. Her weight fluctuates from 46 to 52 kilos. She is trying to take up hobbies and keeps trying every day; she has good days and bad days and has lot of triggers that just happen.
Ms Devine’s focus is not great, esp with her study, she has textbooks for each subject, she can’t read well, she will read something and takes her longer to comprehend something with her studies. She is doing a course but is struggling to retain information, she can only read 5-10 mins and gives up. Anything medical she just can’t do it and struggles to keep her focus on task.”
The Medical Assessor diagnosed major depressive disorder. He commented briefly on reports from Dr Teoh and Dr Chew and explained why he differed from diagnoses made in the past.
We have considered only the tables of the PIRS which are the subject of appeal. Assessing Ms Devine in class 3 for social and recreational activities, the Medical Assessor said:
“Ms Devine doesn’t socialize, she needs a lot of preparation to go outside, someone needs to be with her all the time, she can’t go out on her own, and she can’t meet someone on her own. Someone has to be there and accompany her when she goes out.”
The Medical Assessor assessed Ms Devine in class 3 for social functioning, saying:
“Ms Devine left her husband 2 years ago and got divorced in October. She was sleeping in separate room, they argued all the time, she wasn’t cooking and not doing things at home. He would force her to do things , she didn’t feel safe, and had emotional violence. She has three children aged 30, 28 and 25 . She is in touch with them and has a okay relationship and is still very withdrawn. She is in a relationship now.”
The Medical Assessor assessed Ms Devine in class 2 for concentration, persistence and pace because:
“Ms Devine’s focus is not great, esp with her study, she has textbooks for each subject, she can’t read well, she will read something and takes her longer to comprehend something with her studies. She is doing a course but is struggling to retain information, she can only read 5-10 mins and gives up. Anything medical she just can’t do it and struggles to keep her focus on task.”
The Medical Assessor’s assessment was 15% WPI. He allowed 1% for the effects of treatment about which neither party made submissions.
Social and recreational activities
The social and recreational activities table measures the extent of a worker’s participation in activities and the examples generally involve some interaction with others[6] though recreational activities are not necessarily always undertaken in company.[7]
[6] Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [100].
[7] See Lancaster v Foxtel Management Pty Ltd [2022] NSWWSC 929 at [72]-[73].
The examples for classes 2 and 3 are:
“Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The reasons for assessment that the Medical Assessor gave in the PIRS table were repetitive. They were also inconsistent with the limited information in the body of the MAC where he said that going to the gym helps Ms Devine a lot. Though she struggles to go out “she makes an effort every day and forces herself to do things.. She enjoys running…”. The Medical Assessor noted that Ms Devine uses alcohol for her social anxiety and “to speak socially”.
In Vannini v Worldwide Demolitions Pty Ltd[8] Gleeson JA said:[9]
“…, s 327(3)(d) requires that such an error be ‘contained’ in the certificate; that is, the error must be apparent in the certificate of the approved medical specialist. Importantly however, there is no express limitation on the material to which the Panel may have regard when assessing whether the certificate ‘contains’ a demonstrable error.”
And:
“That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales:
‘The concept of “demonstrable error” is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error “on the face of the record” for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word “demonstrable” does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error’.”
[8] [2018] NSWCA 324.
[9] At [78].
It is appropriate to consider the material in the file. Neither Dr Teoh nor Dr Chew took an adequate history to support the assessments they made under the PIRS. Those reports are now also quite dated – Dr Teoh’s report being dated 19 March 2021 and Dr Chew’s substantive report dated 29 June 2021.
Notes from Ms Mepham in early 2023 refer to Ms Devine staying at a friend’s house (14 December 2022) and signing up for a 10km run (15 February 2023), both of which fall to be considered under this table.
Ms Devine prepared a statement dated 7 August 2023 by reference to the PIRS tables. The section dealing with social and recreational activities said practically nothing about Ms Devine’s activities at the date of the statement other than that “I struggle with social and recreational activities.” The statement focussed on Ms Devine’s isolation and lack of activity for two years after the injury, not at the date at which it was prepared.
The Medical Assessor was required to make an assessment based on Ms Devine’s presentation on the day she attended.[10] That required him to take a detailed history and to explain the reasons for his assessment. He did not do so. The inconsistencies between the body of the report and the PIRS table are a demonstrable error which could not be resolved without re-examination.
[10] Guidelines paragraph 1.6.
Social functioning
The social functioning table measures the strength of relationships. The examples for class 2 (mild impairment), class 3 (moderate impairment) and class 4 (severe impairment) are:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Severe impairment - Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).”
Ms Devine’s submissions do not take account of what Garling J said in Jenkins and seek to argue that she should be assessed in class 3 because the inability to form new relationships is a descriptor for class 4.
The evidence in the file suggests that Ms Devine maintains a relationship with her parents and her three children. Her sister-in-law accompanied her to the examination and they spend time together. The Medical Assessor said little about Ms Devine’s new relationship. Though the breakdown of her marriage is relevant, her new relationship is significant and the Medical Assessor should have obtained further details and given it greater consideration.
The Medical Assessor was in error in failing to provide a more detailed history to support his assessment.
Concentration, persistence and pace
The Medical Assessor assessed Ms Devine in class 2. Again, his history is brief and he did not explore the nature of the course.
In her statement, Ms Devine said that she is studying a diploma of paramedicine which is self-paced and online and that she is able to complete the assessments satisfactorily. She attended a five day workshop of practical assessments and said she struggled as her concentration was poor.
Ms Mepham’s notes convey a different impression. She said on 15 March 2023:
“Sonia completed and passed her practical exams at the workshop last week. She was proud of herself and tearful. She hopes to keep this new perspective going. Admits to increased use of diazepam, acknowledges she was triggered at times, and thought she may not be able to complete the exams. Received good feedback that she believes is genuine.
Has applied for her placements.”
On the next occasion, Ms Mepham recorded:
“Sonia struggling today. Feels she has hit a low following adrenaline high from her workshop. She has since attended a first aid course, with some difficulties - tried to focus on what instructor said, and he responded asking if she was OK and why staring.”
The Medical Assessor recorded a subjective history and did not explore whether Ms Devine was passing her course overall. Ms Devine submitted that she was struggling to pass a basic course of seven days’ duration. We do not agree that one practical aspect of a diploma course can be characterised as a basic course. Nor do Ms Mepham’s notes support the submission that Ms Devine was struggling to pass but rather that Ms Devine was pleased with how she had performed at the workshop and struggling generally at the next consultation.
Medical Assessor Hong’s examination
Medical Assessor Hong’s examination report reads:
“1. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Devine reported having joined Aggreko as a full-time operation coordinator in October 2018 and stopped working in November 2019, and has not done other work since. She said the work was challenging immediately, and when she attended training in Melbourne, she discovered it was a very toxic environment - this was not long after she joined the organisation. She said there were a lot of problems over time. She witnessed people being bullied, and she was a victim of frequent bullying behaviour. After Ms Devine had surgery on 3 October 2019, she went back to work and there were further problems. They did not support her at all during the Return to Work programme. They changed her job role slightly, isolated her, and harassed her. She tried to get help but could not get any help. Around a month later, she ceased working altogether.
Physically, she reported that she continues to experience a lot of problems affecting her right shoulder and elbow, and due to compensatory overuse, the left shoulder and elbow are now affected and she has pain on both sides now. She said that her GP has certified her fit to carry 15kg with her arms, but she does not have the strength to do so and she knows her limit, which is only 2kg or 2 litres milk carton.
She said there was no problem with using her legs. She has resumed jogging on a treadmill for fitness at home and does it 4-5 days a week. She was going to the gym but struggled due to being around people, so now she does it on her own at home.
· Present treatment:
Ms Devine is taking:
· Duloxetine 60 mg
· Diazepam 5 mg
She consulted Dr Terrence Lim and Dr Ghana Chapagain, psychiatrists and the last time was 2 years ago. She has been consulting Anette Swinburn, psychologist for around 4.5 years and recently every 2 weeks.
· Present symptoms:
In terms of recent psychological symptoms, Ms Devine said that crowds and social interactions cause major anxieties and lead to panic attacks. She said that she experiences depression every day, and exercising makes her feel better.
She discussed she had suicidal ideation in the past. She described her concentration and memory as ‘pretty ordinary.’ She normally loves reading books and novels, particularly science fiction, Tom Clancy and Matthew Reilly books, she has not been able to read for a long time. She said she can only read several pages before stopping.
She feels frustrated and does not have anger problems.
She also has sleep problems, which she attributes to overthinking, particularly about her employment.
She stated that her weight has been stable at 52kg for more than 18 months.
She reported that she still drinks alcohol in variable amounts. This can be two pre-mixed cans or half a dozen in a day.
· Social activities/ADL:
Ms Devine is 50 years old and reported that she was living with her parents in Victoria, and in the last six months, she has mostly lived with her new partner in Queensland. She has three adult children, and there are no dependents living with them.
She left her husband in November 2021 after being together for 21 years. She said that after her injury she would not eat, would not look after herself, and only goes out for medical appointments. He struggled with the changes in her and then started to become aggressive and perpetrated physical domestic violence against her. At that point, she left him. There has been no subsequent problem with him.
She reported that she spent time online and on social networks and met her current partner about 12 months ago. They started dating and are now living together. She said that he is a very big support person, and she feels more stable living with him. She continues to travel back to Victoria to visit her parents regularly. She said ‘I always need a support person to hold my hands with everything’ and she struggles to be on her own, and said she struggles to maintain her friendships or family relations.
She said that in the last four or five years, she has not belonged anywhere and she essentially has been homeless.
Ms Devine said that normally, she was independent and hard-working. She managed her home well and worked. She built her own house, and her husband was often away for work, and she was very independent. But all this changed since her work injury.
She said she does not do much day-to-day. She reported that she has tried to engage in simple hobbies, such as art, and has done paint-by-numbers. She used to be able to draw freely but is no longer able to do so. Now, she buys paint-by-number paintings that are “not simple”, which take a couple of weeks to finish. She said when she becomes obsessed with it, she works on it every day.
Ms Devine said she drives with anxiety and avoids crowded places. Sometimes she forgets how she arrived at places. On a good day, she can drive for 45 minutes on her own, but she only has about one good day a week.
In terms of trips away in the past 2 years, she had gone away for a weekend with her partner, at his insistence, to Fraser Island for camping just before Easter in 2024. She also went back to Victoria to visit her parents and flew alone, although she experienced severe anxiety; she prefers to fly with her partner now.
She has lost friends and said she has no friends now. She has a close relationship with her sister-in-law, Emily, and sees her when in Victoria, staying at her house and having dinner together. She has two brothers and one sister, and is close with her sister and one of her brothers. She has a good relationship with her new partner. Her relationship with her children is less close now but overall is okay. She has a good relationship with her parents.
Ms Devine started a diploma in paramedics in June 2022, completed the two-year theory component in December 2023, and passed it in the standard time. She completed a five-day workshop but struggled with the second workshop and walked out due to the interaction with people. However, she said her tutor forced her to return and placed her in a group with people she was comfortable with, and she was able to finish it. She has not started the practical component yet and does not think she would be able to start it.
She said that her relationship with the children declined, especially with her daughter, although there has been some improvement over time.
2. FINDINGS ON PHYSICAL EXAMINATION
Ms Devine was assessed by video. She was alone at home in Queensland during the assessment.
Ms Devine's hair was tied back and she had a nose piercing. She gestured regularly and cried almost immediately, and cried throughout the assessment. She was in bed and gave long and elaborate answers. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was moderately restricted in her affect range and reactivity. She smiled and laughed briefly. She spoke spontaneously. She was not thought disordered and the provided history was easy to follow. At the end of the assessment, which took 1 hour and 10 minutes, she was invited to discuss additional information she thought might be relevant. Ms Devine discussed that she struggles to articulate her difficulties over the past five years, and that her physical injury does not impact her psychological health at all. Instead, she feels that her psychological health affects her physical injury. She feels like she is going around in circles. She also mentioned that she feels embarrassed to discuss her health when she has a support person with her. Because of this, she has shared more information with me today than she has in previous assessments.
3. SUMMARY
· summary of injuries and diagnoses:
Ms Devine has no past psychiatric history and developed anxiety and depressive symptoms as a result of her employment, consistent with major depressive disorder and continues to use alcohol to excess. She has had sufficient treatment and her psychological/psychiatric treatment have not changed for a long time and her psychological injury has stabilized.
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
From Dr Himanshu Singh’s MAC.
Social and recreational activities
2
She engages in regular but fewer recreational activities since her injury. She enjoys activities with people and also solitary activities. She does not need a support person and initiates some activities herself. She enjoys running at home, paint by numbers, and has been on trips away and camping with her new partner, and enjoys eating out or at home with her family.
Travel
2
From Dr Himanshu Singh’s MAC.
Social functioning
2
Ms Devine's relationship with her ex-husband ended.
She has a good relationship with her new partner and they moved in together now.
She said she does not contact her friends anymore.
Her relationship with her parents and children, and sister-in-law are overall good.
Concentration, persistence and pace
2
Ms Devine described having poor concentration and cannot read books. She can follow paint by numbers for a couple of hours. She completed the theory component of a diploma in standard time.
Employability
3
From Dr Himanshu Singh’s MAC.”
Conclusion
We adopt Medical Assessor Hong’s assessment.[11] When the scores are arranged in ascending order, the median class is 2 and the total is 13. Under Table 11-7, that converts to 7% WPI. As no point was raised with respect to the allowance for the effect of treatment, the total WPI is 8%.
[11] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
For these reasons, we have determined that the MAC issued on 20 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: | W6215/23 |
Applicant: | Sonia Devine |
Respondent: | Aggreko Generator Rentals Pty Ltd |
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 Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-totals % WPI (after any deductions in column 6) |
| Psychological injury | 20/11/19 | Chapter 11 | N/A | 8 | Nil | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0
6
0