Beveridge v Staffpond Pty Ltd t/as Terry White Chemmart

DETERMINATION OF APPEAL PANEL
CITATION:	Beveridge v Staffpond Pty Ltd t/as Terry White Chemmart [2023] NSWPICMP 491
APPELLANT:	Elva Beveridge
RESPONDENT:	Staffpond Pty Ltd t/as Terry White Chemist
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	4 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) considered clause 1.32 of the Guidelines; whether MA’s rating of appellant’s impairment in concentration, persistence and pace correct and whether MA considered persistence and pace; whether MA’s rating of appellant’s impairment in social functioning correct; Appeal Panel held clause 1.32 was not engaged as treatment had not resulted in either total or substantial elimination of appellant’s impairment; Appeal Panel held that MA had considered the cognitive tasks the appellant was able to do and the duration she could do those tasks and the effort it took her to do them; MA accordingly evaluated all matters relevant to rating the appellant’s impairment in concentration, persistence and pace and it was open to the MA to rate the appellant’s impairment in this scale as he did; the Appeal Panel held it was open to the MA to rate the appellant’s impairment in social functioning as he did; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 February 2023 Elva Beveridge, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 February 2023.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for 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.
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.
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).

RELEVANT FACTUAL BACKGROUND

Staffpond Pty Ltd, the respondent, employed the appellant as a dispensary technician for approximately 22 years, with the last day of the appellant’s work being 18 November 2020. Due to her interactions with another member of staff over approximately the last 5 years of her employment the appellant suffered a psychological injury.
Her solicitors arranged for her to be examined by consultant psychiatrist Dr Michael Hong to provide a forensic medical report relating to the appellant’s injury. In that report, which is dated 21 February 2022, Dr Hong advised he had assessed the appellant had 17% whole person impairment (WPI) from her injury. Relying on that report, the appellant’s solicitors wrote to the respondent’s insurer on 8 March 2022 advising the insurer that the appellant claimed compensation from it in the amount of $43,840 under s 66 of the Workers Compensation Act 1987 (1987 Act) for 17% WPI from her injury.
Following receipt of that claim, the insurer organised for the appellant to be examined by consultant psychiatrist Dr Clayton Smith on 17 May 2022. Dr Smith produced a report to the insurer on the same date addressing various issues relating to the appellant’s injury. In a supplementary report dated 14 June 2022, Dr Smith advised the insurer that “Ms Beveridge’s condition has not reached maximum medical improvement” and that “her whole person impairment is likely to improve by more than 3% over the next 12 months with assertive treatment”.
On 27 June 2022 the insurer wrote to the appellant, care of her solicitors, notifying her, in substance, under s 78 of the 1998 Act that they had no liability with respect to her claim for compensation for permanent impairment from her injury. It said it had “determined” that her psychiatric condition had not reached maximum medical improvement and that it could not determine whether “your injury satisfies the applicable threshold pursuant to s 65A of the 1987 Act”. That was a reference to s 65A(3) of the 1987 Act, which requires the degree of permanent impairment of a worker resulting from a psychological injury to be at least 15% for the worker to be entitled to compensation under
s 66 of the Act. The insurer advised the appellant that it preferred the opinion of Dr Smith rather than the opinion of Dr Hong.
The appellant then initiated proceedings in the Personal Injury Commission (Commission), by filing an Application to Resolve a Dispute dated 27 July 2022, seeking determination of her claim for compensation for permanent impairment. On 4 November 2022 a delegate of the President referred the matter to the Medical Assessor to assess.
The Medical Assessor examined the appellant on 20 January 2023 and, as said above, issued the MAC in response to the referral on 2 February 2023.
The Medical Assessor certified in the MAC that he assessed the appellant’s permanent impairment from her injury as 7% WPI. The Medical Assessor completed the psychiatric impairment rating scale (PIRS) rating form within the prescribed form for a MAC, detailing his ratings of the appellant’s impairment in several categories comprising PIRS. They were class 2 for self-care and personal hygiene, class 3 for social and recreational activities, class 1 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace (CPP), and class 4 for employability. The Medical Assessor noted that the median class of his ratings was 2 and that the aggregate was 14, which translated to 7% WPI.
The Medical Assessor noted within the rating form that the appellant’s occupation was a dispensary technician. The Medical Assessor noted that his diagnosis of the appellant’s injury was persistent depressive disorder and panic disorder. He noted that previously the appellant had met the criteria for major depressive disorder but her symptoms had ameliorated. The Medical Assessor noted that the appellant had undergone long term psychological treatment and psychiatric review and that her current treatment was Sertraline and Alprazolam.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied, was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess the medical dispute that had been referred for assessment. In any event, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

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

SUBMISSIONS

Both parties made written submissions, which the Appeal Panel has considered. To the extent necessary for the Appeal Panel to explain its reasons, the parties’ submissions are paraphrased below under findings and reasons.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The appellant submitted that the Medical Assessor failed to consider whether an adjustment should be made for the effects of her long-term treatment. The appellant noted that the Medical Assessor had recorded that she “had reasonable treatment and her symptoms have somewhat ameliorated over the two plus years” and also recorded that her symptoms had improved such that she no longer met the diagnostic criteria for major depressive disorder. The appellant observed that cl 1.32 of the Guidelines required that where effective long-term treatment of an injury results in a substantial or total elimination of a worker’s permanent impairment and the worker is likely to revert to the original degree of impairment if treatment is withdrawn, the Medical Assessor can increase the rating of a worker’s permanent impairment by 1%, 2% or 3% WPI. The appellant submitted that the Medical Assessor failed to consider this instruction within the guidelines. The appellant submitted this resulted in the MAC containing a demonstrable error.
The history the Medical Assessor obtained relating to the appellant’s treatment of her injury included the appellant’s general practitioner (GP) initially prescribing Sertraline at a dose of 50mg a day and Diazepam at a dose of 5mg at night when required. The Medical Assessor noted that the appellant commenced consulting psychologist Ms Samantha Evans in February 2021, whom the appellant initially consulted monthly, but now consults fortnightly.
The Medical Assessor recorded that when the symptoms did not significantly improve, the appellant was referred to psychiatrist Dr Ruby Thaikulassingam, whom the appellant initially consulted in June 2021 and who increased the appellant’s dosage of Sertraline to 100mg a day, and changed the prescription for Diazepam to Alprazolam at a dose of 1mg as required. The Medical Assessor recorded that after several months Dr Thaikulassingam reduced the dosage of Sertraline to 50mg a day because of side effects the appellant experienced and the appellant being reluctant to take too many medications.
The Medical Assessor recorded that the appellant continued to experience regular and frequent anxiety and panic notwithstanding the treatment she received, however the Medical Assessor recorded that the appellant’s symptoms gradually improved during 2022.
The Medical Assessor recorded that the appellant’s present treatment consists of consultations with her GP, consultations with her psychologist fortnightly, consultations with her psychiatrist every two to three months, and taking Sertraline 50mg a day and Alprazolam when required.
The Medical Assessor noted that the appellant still experiences regular anxiety with varying intensity. The Medical Assessor noted that the appellant has gradually learned to better manage her panic attacks with techniques she has learned from her psychologist.
The Medical Assessor recorded that at the time the appellant suffered the injury
“she almost certainly had a Major Depressive Disorder as well as Panic Disorder and Anxiety. The Medical Assessor noted that with the psychiatric and psychological treatments there had “been some overall improvement in her symptomology”.
The Medical Assessor also said that the treatment the appellant has had has been reasonable and that her symptoms have “somewhat ameliorated” in the two years since she suffered that injury. The Medical Assessor, in the context of having noted that the appellant’s symptoms having “somewhat ameliorated” and there having been “some overall improvement” of her symptoms, considered that the appellant no longer currently meets the criteria for major depressive disorder. The Medical Assessor expressed his view that the appellant’s symptoms currently meet the criteria for a diagnosis of panic disorder and persistent depressive disorder that is associated with significant anxiety.
The Medical Assessor noted that Dr Hong had diagnosed the appellant’s injury as a panic disorder with depressive symptoms. The Medical Assessor said he agreed with Dr Hong’s diagnosis of panic disorder but also said that the appellant’s symptoms are of sufficient severity to rate a separate diagnosis of persistent depressive disorder. The Medical Assessor observed that Dr Hong had examined the appellant approximately one year before he assessed the appellant and the Medical Assessor said that he believed “that she has improved over the year, and that this probably accounts for the lower Whole Person Impairment rating that I have reached”. The Appeal Panel repeats that Dr Hong had assessed the appellant had 17% WPI.
It is obvious from the MAC that the Medical Assessor as part of the process of assessing the appellant’s permanent impairment from her injury had regard to the treatment the appellant had for her injury and the improvement in the appellant’s symptoms as a consequence of that treatment. The Medical Assessor did not make explicit reference in the MAC to cl 1.32 of the Guidelines, which reads as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
Although the Medical Assessor did not explicitly refer to cl 1.32, the Appeal Panel considers that when the MAC is read as a whole it is implicit that the Medical Assessor had regard to the instructions within cl 1.32 and decided that there had not been an apparent substantial or total elimination of the appellant’s permanent impairment, and consequently cl 1.32 could not be engaged so as to increase the permanent impairment he assessed the appellant had.
In any event, if it is the case that the Medical Assessor neglected to consider cl 1.32, which would have been an error, the Appeal Panel considers that the correction of such an error by the Appeal Panel, that is by the Appeal Panel considering the application of cl1.32, would not result in a change in the result in this matter. This is because the Appeal Panel considers that there has not been a substantial or total elimination of the appellant’s permanent impairment because of the treatment she has. Whilst there has been improvement in her symptoms and consequent function, and hence an improvement in her impairment from her injury, that improvement cannot be considered to be substantial. That is what the Medical Assessor found, by saying that there had been some overall improvement in the appellant’s symptoms and that her symptoms had somewhat ameliorated, and the Appeal Panel agrees with this. Consequently, the appellant’s treatment has not substantially or totally eliminated her permanent impairment. Her injury still significantly impairs her function, and that is evident from the ratings the Medical Assessor made of her impairment in several PIRS categories.
The appellant further submitted that the Medical Assessor erred by rating her impairment in PIRS category of CPP as class 2. The appellant submitted that the Medical Assessor ought to have rated her impairment in this category as class 3.
The appellant submitted that the Medical Assessor assessed her capacity within CPP “as against an understanding, albeit mistaken, of her capacity at the time of previous assessments”; that is the assessments that Dr Hong and Dr Smith respectively made of her impairment. The appellant submitted that the Medical Assessor ought to have assessed her current impairment by reference to her pre-injury capacity where she was reading books in the form of complex prose and engaging in activities like knitting.
The appellant submitted that there had been no improvement in her capacity in CPP since the time of the previous assessments of Dr Hong and Dr Smith. The appellant also submitted that the Medical Assessor failed to consider “persistence” and “pace” when assessing her impairment in CPP. The appellant referred to her limited capacity to undertake activities outside of her home. She noted that on occasion she remains in bed for much of the day. She submitted that her CPP is such that she cannot follow complex instructions. The appellant noted her job as a dispensary technician required her to complete complex tasks and follow complex instructions whereas now, in contrast, she has the ability to listen to poetry for half an hour only.
The reasons the Medical Assessor disclosed in the PIRS rating form for rating the appellant’s impairment in CPP as class 2 were as follows:
“Her concentration and memory are not as good as previously although she is able to read a short story for up to about 30 minutes. She also regularly listens to poetry on Audible. She watches news broadcasts and is able to attend for most of the half hour bulletin.”
The Appeal Panel also observes that the Medical Assessor recorded in the MAC, and was consequently aware, that the appellant worked as a dispensary technician with the respondent from 1999 to November 2020. The Medical Assessor was also aware that the appellant was reluctant to leave her house unless necessary because of the anxiety that caused her.
The Medical Assessor further recorded in the MAC that he examined the appellant using a Teams application which crashed part way through his examination of the appellant, but the appellant was able to transfer to a different application to enable the examination to proceed. The Medical Assessor noted the appellant managed this with only minimal upset. The Medical Assessor recorded that the appellant was able to “attend throughout the interview”. The Medical Assessor recorded that the appellant exhibited “occasional difficulty in memory of events”, but observed that the appellant’s “cognitive function was intact”.
It is the case that the Medical Assessor noted that the history Dr Hong obtained from the appellant relating to her ability in CPP included that the appellant had stopped reading books and could not follow complex prose or complex instructions but could listen to podcasts and watch news online briefly, whereas when he examined the appellant she was now able to read short stories for up to half an hour and could watch a half hour news bulletin and listen to poetry on Audible. The Medical Assessor expressed his view that this represented an improvement in the appellant’s functioning since the time Dr Hong examined the appellant. The Appeal Panel agrees with that conclusion, but it is largely irrelevant. This is because the Medical Assessor assessed the appellant’s impairment in the category of CPP based on how the appellant performed at the time he assessed her. The Medical Assessor clearly, in the Appeal Panel’s view, identified in the MAC the cognitive tasks that the appellant is currently able to do and the duration for which she can maintain those tasks. The Medical Assessor was aware that the appellant worked over the course of a decade as a dispensary technician. The Medical Assessor was aware of the appellant’s prior functioning with CPP. In other words, the Medical Assessor was cognisant of the appellant’s present function relative to how it was before injury. The Medical Assessor, as he was required to do, assessed the appellant’s impairment with CPP based on how she presented at assessment.

The Appeal Panel, which is an expert panel, notes that CPP refers to the effort a person makes over a particular time to complete a particular task. Concentration refers to the effort required by a person to complete a task, whereas persistence refers to the time over which that effort is required, and pace refers to the person’s ability to maintain that effort over the duration.
In the Appeal Panel’s view, it was open to the Medical Assessor to rate the appellant’s impairment in CPP as class 2 given that she can read a short story for around 30 minutes and is able to watch a news broadcast for around half an hour and is able to regularly listen to poetry on Audible. Further, the Appeal Panel observes that the Medical Assessor recorded that during his examination of her the appellant was able to manage to transfer from one software application to another with only minimal upset and also had intact cognitive function during the course of his assessment of her. When those matters are considered, the Appeal Panel is of the view that the Medical Assessor demonstrated no error in his evaluation of the cognitive tasks that the appellant is able to undertake, and the duration of which she is able to undertake those tasks and the effort that she maintained to do so. It was open to him, based on his evaluation of these matters, to rate the appellant’s impairment as class 2. No error is demonstrated in the MAC in the Medical Assessor’s evaluation of the material before him to arrive at that rating.
The appellant also submitted with respect to the Medical Assessor’s rating of her impairment in the category of social functioning that the Medical Assessor ought to have rated her impairment as class 3, rather than class 2. The Medical Assessor’s reasons for rating the appellant’s impairment in this category as class 2 were as follows:
“Her relationship with her daughter, who now lives with her father, remains good and there is minimal conflict. She has lost contact with some of her friends although retains contact with longer term friends. Her relationship with her ex-husband remains cordial.”
The appellant referred to cl 11.12 of the Guidelines which stipulates that the descriptors for the various classes at which a worker’s impairment can be rated are only examples and that a Medical Assessor should also “consider activities that are usual for the person’s age, sex and cultural norms”. The appellant highlighted that the Medical Assessor noted that her injury resulted in her separation from her daughter, but the Medical Assessor also said her relationship with her daughter is good. The appellant also highlighted that the Medical Assessor had noted that despite her relocation she retained contact with long term friends.
The appellant submitted that “the Medical Assessor did not situate these conclusions in the context of the appellant’s ‘close knit Lebanese family’ and her previous habit of weekly church attendances”. The appellant also submitted that the Medical Assessor ought to have considered her relationship with her daughter as being “severely strained because her daughter had resided with her since birth but had since her injury moved to reside with her father”.
There is nothing within the appellant’s statements that were in evidence before the Medical Assessor or any of the other material that was before the Medical Assessor that reveals that the appellant was a member of a close-knit Catholic Lebanese family or that relates to her attendance at church. In other words, the appellant’s submissions on this issue are not based on any evidence that was before the Medical Assessor.
The Appeal Panel also notes that the history the Medical Assessor obtained reveals that the appellant’s daughter left the appellant’s residence at the time she was 17 years old to move in with her father and this was because of the appellant’s mood, anxiety and increasing irritability at that time. The history also reveals that the appellant nevertheless maintained a relationship with her daughter that was “reasonably positive” and that has improved since her daughter moved out. The Medical Assessor noted that there is “minimal conflict” between the appellant and her daughter. The Appeal Panel considers that it would be incorrect to characterise the relationship between the appellant and her daughter as being severely strained. Dr Hong also rated the appellant’s social functioning as mildly impaired, recording that ‘the relationship with her family is reasonable.’
The Appeal Panel notes that the descriptors provided for a class 2 impairment for social functioning are:
“Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The Appeal Panel notes that the descriptors for a moderate impairment are:
“Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Appeal Panel considers that, having regard to those descriptors, the Medical Assessor was correct to rate the appellant’s impairment in this category as class 2 for the reason the Medical Assessor provided. No error is demonstrated in the MAC by his doing so.
The appellant also submitted that the Medical Assessor made an error because of “a misunderstanding of the chronology relevant to the Medical Assessor’s overall conclusions”. The appellant noted that the Medical Assessor recorded in the MAC that her symptoms had gradually improved during 2022 except for a period in the latter half of 2022. The appellant noted that the Medical Assessor recorded that the deterioration in her symptoms in the latter half of 2022 correlated with a time when she was experiencing significant financial difficulty which resulted in her having to sell her house in Penrith and moving to The Entrance in a cheaper unit that she had purchased. The appellant referred to the history Dr Smith obtained on 17 May 2022 that she had moved from Penrith to The Entrance in April 2022 and that
Dr Smith had recorded that she had suicidal thoughts for several months after she left work but that they had now resolved. The appellant submitted that “the preponderance of the evidence suggests that the Medical Assessor’s opinion as to the gradual improvement in symptomology” involved a misunderstanding of the relevant chronology. The appellant submitted that the Medical Assessor’s opinions were premised on her experiencing an overall improvement in her symptomology but because the Medical Assessor misconceived the chronology of material events, that is when her improvement occurred, there is an error.
The Appeal Panel rejects that submission. The Medical Assessor assessed the appellant’s impairment at the time the appellant submitted to the Medical Assessor for examination. His assessment was based upon her function at that time, and the precise timing of a temporary deterioration is irrelevant. In 2023 the Medical Assessor identified less severe symptoms and less impairment than that recorded by the Independent Medical Examination’s in 2022. He specifically compares his findings on assessment to those doctors, noting for instance that “Dr Smith makes a diagnosis of Major Depressive Disorder with anxious stress. Whilst I did not see Ms Beveridge at this time, from the history that I took I suspect that this accurately reflects her diagnosis at that time”, supporting his finding of improvement over time.
For these reasons, the Appeal Panel has determined that the MAC issued on
2 February 2023 should be confirmed.

[2023] NSWPICMP 491

4 October 2023