Atkin v Ampol Retail Pty Ltd
[2024] NSWPICMP 80
•20 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Atkin v Ampol Retail Pty Ltd [2024] NSWPICMP 80 |
| APPELLANT: | Hollee Atkin |
| RESPONDENT: | Ampol Retail Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 20 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appeal regarding 2 classes of Psychiatric Impairment Rating Scale only; Ferguson v State of New South Wales and Parker v Select Civil Pty Ltd considered; social and recreational activities; Ballas v Department of Education (State of NSW) considered; social functioning; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 September 2023 Hollee Atkin lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 August 2023.
Ms Atkin relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(c) – that the Medical Assessor applied incorrect criteria in the assessment of 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 Atkin was employed by Ampol Retail Pty Ltd (Ampol) and working behind the cash register of a service station on 29 November 2021 when a customer lost control of her car and crashed into the building. Ms Atkin heard a crash, felt the building shake and smelt smoke, burning and dust. She worried about electrocution or explosion but was able to shut down equipment and call emergency services. She has been diagnosed with post-traumatic stress disorder. She attempted to return to work on two occasions but was unable to continue.
The Medical Assessor diagnosed post-traumatic stress disorder, consistently with the other reports in the file. He assessed 8% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS) placing Ms Atkin in class 2 for self care and personal hygiene, social and recreational activities, travel and social functioning. He assessed her in class 3 for concentration, persistence and pace and class 4 for employability.
Ms Atkin appealed with respect to the assessments for social and recreational activities and social functioning.
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 that preliminary review, we determined that it was not necessary for Ms Atkin to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
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, Ms Atkin submitted that the Medical Assessor was required to evaluate the history and evidence and to use the PIRS “criteria” as a guide and on a “best fit” basis. She said that the history that the Medical Assessor recorded was more consistent with class 3 because she rarely goes to social events and usually when prompted by a close friend. She noted that the Medical Assessor recorded that she went to a first birthday party at a friend’s house but left early and said that her evidence is that she prefers to be at home where she feels safe and to spend time on her own. She referred to her statement and to the report of Dr Teoh, qualified on her behalf.
With respect to social functioning, Ms Atkin said that the history recorded by the Medical Assessor is more consistent with the class 3 descriptors. She said that the Medical Assessor did not clarify the extent of relevant factors such as the frequency of meeting her friends and the location of their meetings nor the frequency and nature of the assistance her mother provides with her child.
In reply, Ampol submitted that the assessments made by the Medical Assessor were open to him in the exercise of his clinical judgement. It said that the Medical Assessor was required to assess Ms Atkin as she presented on the day of the assessment, not by reference to her function at some other time, noting that eight months had elapsed between the examinations by the doctors qualified by the parties and the assessment by the Medical Assessor.
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 Queanbeyan Racing Club Ltd v Burton,[1] 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 Ms Atkin’s appeal.
[1] [[2021] NSWCA 304 at [26].
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.
The Guidelines provided in paragraph 11.12 that impairment under each of the tables in the PIRS is rated using class descriptors and that classes range from one to five in accordance with severity. Examples of activities are provided in respect of each class.
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment, moderate impairment. What follows in each class are examples which demonstrate the level of impairment.[3] Class 1 of each of the tables in the PIRS is appropriate where there is “[n]o deficit, or minor deficit attributable to normal variation in the general population”. Class 1 contemplates that the general population encompasses a range of capacity and behaviour.
[3] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65].
In Ferguson v State of New South Wales[4] (Ferguson) Campbell J said:[5]
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
[4] [2017] NSWSC 887, [25].
[5] At [24] – [25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[6]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[6] [2018] NSWSC 140 at [70]-[71].
Our task as a Medical Appeal Panel is to determine if the assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement. We cannot substitute our own assessment unless the Medical Assessor has made a demonstrable error or applied incorrect criteria.
Social and recreational activities
The table measures a worker’s degree of participation in social and recreational activities.[7]
[7] Ballas v Department of Education (State of NSW) [2020] NSWCA 86.
The Medical Assessor assessed Ms Atkin in class 2, connoting a mild impairment, saying:
“She has 2-3 friends, fellow ‘school-mums’ one of whom she sees once a week. She goes to her friend’s house once a week and they have breakfast, brunch or lunch, and they sit and talk. She doesn’t do much else. She had a first birthday a few weeks ago at her friend’s house, and she stayed for a brief period of time as there was a lot of people around.
She is able to participate in regular social interactions with friends, albeit with reduced closeness and reduced frequency, with some reservation, so she has mild impairment.”
The examples in Table 11.2 are:
“Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Moderate impairment: 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 Medical Assessor gave a clear explanation as to why he placed Ms Atkin in class 2. He noted that Dr Teoh assessed Ms Atkin in class 3 when he saw her at the request of her solicitors and that Dr Kaplan, who saw her for Ampol, assessed her in class 2.
Dr Teoh provided generic reasons for his assessment in class 3 when he assessed Ms Atkin on 25 October 2022 saying:
“She reported significant loss of interest in her usual activities and social isolation. She has been lacking motivation and interest in her usual activities.”
Dr Teoh’s reasons do not explain why he assessed Ms Atkin in class 3. His report was written one year before the MAC. The medical evidence in the file all predates Dr Teoh’s report and most of it deals with her inability to work.
In her statement dated 28 March 2023 Ms Atkin said:
“I no longer go out and catch up with friends as much as I used to before the accident as I prefer to be at home where I feel safe. On the occasions when I do go out, I feel uncomfortable especially when I am asked about how I am feeling or asked about the accident. I have a good relationship with my parents and my sister. I prefer to spend time on my own and spend time watching television and Netflix, colouring in and scrolling on social media.”
Ms Atkin’s statement described a preference to stay home rather than an inability to go out. The history provided to the Medical Assessor was consistent with assessment in class 2 and does not disclose an error.
Social functioning
The social functioning table assesses the strength of Ms Atkin’s relationships and her ability to maintain them. The Medical Assessor explained that he assessed Ms Atkin in class 2 because:
“She has a good relationship with her daughter, and she sometimes struggles to look after her when she is overwhelmed with anxiety or insomnia, leading to being impatient and struggling with daily tasks. She has been able to cook for her daughter regularly, and taking her to school, though sometimes her mother will assist her approximately once a week. She doesn’t have a partner, and did not have one at the time of the subject injury.
She has a brother in England and a sister in Sydney, and she has regular monthly contact with her brother and weekly contact with her sister. Her sister visits her backyard, and she sees her mother everyday, and they have a good and close relationship, though she can take out her frustration on her mother.
She has 2- 3 friends, fellow ‘school-mums’ one of whom she sees once a week.
She maintains regular supportive contact with her mother, and with her siblings as well, though to a lesser frequency, and there has been some strain in her relationship with her mother, who also occasionally helps her look after her daughter, so she has mild impairment.”
The Medical Assessor noted that Dr Teoh assessed Ms Atkin in class 3 and Dr Kaplan in class 2.
Dr Teoh provided scant reasons for his assessment, saying:
“She admitted that she has been irritable and argumentative.”
A review of the examples in the PIRS shows that the reasons provided by Dr Teoh are evidence of a mild impairment:
“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.”
Dr Kaplan’s report dated 2 December 2022 contains some further relevant information confirming the strength of Ms Atkin’s family relationship. He said:
“She went to the UK in June for eight (?or five) weeks. A grandparent was dying and her brother was getting married. She enjoyed the trip and did not have any difficulties with the travel.”
Dr Kaplan also recorded that Ms Atkin has the evening meal with her family and was making more effort to have contact with friends. He said that Ms Atkin denied any problems in her relationship with her father, correcting a statement in Dr Paisley’s report dated 8 June 2022.
That history, together with that obtained and relied on by the Medical Assessor supports assessment in class 2. The evidence in the file shows that Ms Atkin is able to maintain relationships and that her close relationships are impacted but not fractured.
For these reasons, we have determined that the MAC issued on 16 August 2023 should be confirmed.
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