Chan v Sutherland United Services Club Ltd
[2025] NSWPICMP 194
•24 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Chan v Sutherland United Services Club Ltd [2025] NSWPICMP 194 |
| APPELLANT: | Denise Chan |
| RESPONDENT: | Sutherland United Services Club Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 24 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale (PIRS) categories because of an inadequate path of reasoning; Held – Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 October 2024 Denise Chan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
3 October 2024.The appellant relies on the following ground 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 is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
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).
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.
The appellant requested that she undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.
EVIDENCE
Documentary evidence
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
Medical Assessor Douglas Andrews of the Appeal Panel conducted an examination of the worker and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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. 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.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
o the degree of permanent impairment of the worker as a result of an injury (s319(c))
o whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
o whether impairment is permanent (s319(f))
o whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 30/04/2023 (deemed)
Body part/s referred: Psychological/ Psychiatric disorder
Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying 8% whole person impairment (WPI) as a result of the injury as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological Injury | 30 April 2023 | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6 | 8 % | 0 % | 8 % |
| 2. | ||||||
| 3. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 8 % | |||||
The assessment was based on his assessment under psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
| Name | Denise Chan | Claim reference number (if known) | W24522/24 |
| DOB | xxxx | Age at time of injury | 70 years |
| Date of Injury | 30 April 2023 | Occupation at time of injury | Bartender |
| Date of Assessment | 13 September 2024 | Marital Status before injury | Divorced |
| Psychiatric diagnoses | 1. Chronic adjustment disorder with mixed anxiety and depressed mood. | 2. | |||||||||
| 3. | 4. | ||||||||||
| Psychiatric treatment | Follow-up with GP, psychiatrist, and psychologist | Previously, some psychology sessions. She has not been on any regular antidepressant. She continues to take melatonin and Endep for sleep. | |||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 | Ms Chan reported impairment in her ability to look after herself. She stated she lives on her own. Her house is very old. She would do simple cooking. She would cook simple meals in the microwave. She does not want to do much at home. She does not want to be smelly, so she needs to be clean. So, she will shower every day. She does not want to look forward for things. She said she is doing the bare minimum. | |||||||||
| Social and recreational activities | 3 | Ms Chan does not see anyone. She will just look around when she goes out. She would spend time on the bus or train for short travel. She has three sons, all grown up and not seeing them often. She gets upset with them when she sees them and becomes irritable, so she avoids contact. She would watch TV or YouTube. The anxiety can make her cry anytime. She is not attending social events. She used to love to cook, and that was her hobby. She is not cooking much and mostly gets ready meals or will do simple cooking. | |||||||||
| Travel | 2 | Ms Chan stated that she tries not to drive as she loses her control while driving. She would drive mostly locally, and she will take the bus or train to travel as it is cheaper. She would go to Hurstville or would go to Campsie. She only drives from her house to the train station and back. She has not been on any long-distance travel and not been on any holidays. | |||||||||
| Social functioning | 2 | Ms Chan is divorced for more than last seven years. She does not have a partner currently. She said she has friends, but they are more like acquaintance. She would see her sons on and off. | |||||||||
| Concentration, persistence and pace | 2 | Ms Chan stated that when she reads, she cannot finish things, and it triggers her anxiety. She would start to cry. She does not read. She has been bad in her focus and concentration. She gets her friends to help out at times. She asked one of her friends who helped her today to set up for the meeting. I have noted that she was able to hold her focus and concentration during the assessment and did not appear distracted. | |||||||||
| Employability | 4 | Ms Chan stated that she is not looking for any job. When she thinks about work, then it brings back the whole memory of what happened at work. Ms Chan has ongoing symptoms of adjustment disorder, and she probably cannot work more than one or two days at a time and less than 20 hours per fortnight. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 4 | 2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 15 | 8 % | |||||
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and demonstrable errors in the assessments he made under three of the six PIRS categories, namely social functioning, concentration, persistence and pace and employability, causing him to make errors as follows:
(a) in assessing a class 2 social functioning when he should have assessed a class 3,
(b) in assessing a class 2 for concentration, persistence and pace when he should have assessed a class 3, and
(c) in assessing a Class 4 for employability when he should have assessed a Class 5.
In summary, the respondent employer Sutherland United Services Club Ltd (the respondent) submitted that the Medical Assessor did not err and nor did he make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self-report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that the path of reasoning was inadequate, and it was not clearly discernible from the reasons given that the assessments under the contested PIRS were based upon the correct criteria, noting the history, self-report of the appellant and the other evidence before the Medical Assessor.
In these circumstances of the above finding of error, the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Douglas Andrews was appointed to conduct the re-examination, and he reported to the Appeal Panel as follows (emphasis in original):
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W24522/24 |
Appellant: | Denise Chan |
Respondent: | Sutherland United Services Club Ltd |
Examination Conducted By: | Dr Douglas Andrews |
Date of Examination: | 6 March 2025 |
The worker's medical history, where it differs from previous records
I assessed Ms Chan for 90 minutes using an audiovisual link to her friend's home, assisted by Daisy, a Cantonese interpreter provided by the PIC.
Ms Chan stated that little had changed since the MA assessed her in October 2024. Following that assessment, she appealed the class ratings in social functioning, concentration, persistence and pace, and employability.
I sought to clarify the differing accounts about the onset of her illness. Ms Chan started with the Sutherland United Services Club in 2001 or 2002. At different times, she has worked as a bartender or in the coffee shop. She said that problems started in the workplace in 2016 or 2017 and worsened in 2018. Her mental health decline started in 2018.
Additional history since the original Medical Assessment Certificate was performed
Circumstances:
Ms Chan lives alone in a freestanding house without a garden in Beverly Hills NSW. She has 3 adult sons, one of whom lives in the Blue Mountains and the other two live in Sydney. She has no grandchildren. She divorced seven or eight years ago, citing a mutual decision based on long-standing incompatibility.
Current symptoms:
Ms Chan described a pervasively low mood without diurnal variation. Her mood improves somewhat with exercises such as walking.
She is often anxious and described intrusive thoughts about her treatment in the workplace. She is concerned that her treatment was based on racist attitudes of her managers.
She acknowledged occasional thoughts of suicide without plans or intent.
She has subjective problems with concentration, attention and memory.
She goes to bed between 10 and 10:30 PM, usually falls asleep quickly but wakes after about 4 hours. On waking, she is again bothered by intrusive thoughts and often watches television until dawn.
Her appetite is impaired, leading her to skip meals. Her weight is stable.
Diagnosis:
·persistent depressive disorder with an ongoing major depressive episode and anxious distress
The MA and both IME psychiatrists diagnosed chronic adjustment disorder with mixed anxiety and depressed mood. Her psychologist suggested a major depression.
Ms Chan has 6 of the 9 described symptoms for a major depressive episode (5 are needed to make the diagnosis), missing weight changes, psychomotor agitation or retardation and feelings of worthlessness or excessive or inappropriate guilt. Because her symptoms have been present for several years, she warrants a persistent depressive diagnosis. A mood disorder diagnosis supersedes that of an adjustment disorder.
Her condition is entrenched and stable. It will not change substantially over the next twelve months, with or without further medical treatment.
General health:
Ms Chan is in good health. She takes entacavir daily for hepatitis B, a viral infection that is common in Asia. She does not smoke cigarettes and only occasionally drinks alcohol.
Treatment:
Ms Chan continues amitriptyline 25 mg nocte, which she described as a sleeping aid and has been taking since 2019. Her psychiatrist had briefly and unsuccessfully trialled a change to a low dose of mirtazapine. There have been no other medication trials.
She had been seeing psychologist Ms Alyssa-Grace Essex but changed to Beatrice (last name unknown) when Ms Essex went on maternity leave. Her psychiatrist is Dr David Sturrock. She sees them both every 3 weeks and describes supportive psychotherapy, medication supervision and relaxation training.
Overall, Ms Chan has not improved since leaving work in April 2023.
Activities of daily living:
Ms Chan is independent. She attends to housework, shopping, and meal preparation without assistance. She showers and wears clean clothes daily. Although she occasionally misses meals, her weight is stable. She takes regular exercise, such as walking, which is appropriate for her age.
Before becoming unwell, she enjoyed outings with friends, citing activities such as going to restaurants for Yum Cha, visiting friends and going for walks.
She initially said she now had no friends and never went out socially, maintaining this position on repeated questioning but varied it after the following exchange.
I asked her about this statement in the March 2024 report of IME Dr Ashwinder Anand:
“She stated that she has got reasonable contact with her children, and she has a good relationship with them. She does have a few friends and she stated that they generally catch up at the club called The Club Central maybe once every 2 weeks or they will go to restaurants. She stated that when they get to the club they usually talk or have a meal. She stated that she does not gamble because she does not have any money for it. She meets up with her children also at restaurants.”
Ms Chan responded that she did not know why she would have said these things and said, “They may have been true then.”
In the MAC, regarding concentration, persistence and pace, the MA wrote:
“She gets her friends to help out at times. She asked one of her friends who helped her today to set up for the meeting.“
When asked to comment on this, she said that she had a male friend and that she was at his place of residence for the assessment, which he had helped set up. She and the man used to work together and now have a “platonic relationship.” He does not visit her at home, but she visits his home in Sutherland Shire weekly or second weekly.
She sees her sons every couple of months, usually singly rather than together. They don’t do anything special for holidays such as Chinese New Year.
She is independent with local travel; she can drive and often takes public transport. She has not had a more extended trip since travelling to Hong Kong in 2018.
She has good relationships with her boys and has been close to her mother, who died recently. She said her friends had drifted away but acknowledged her continuing friendship with the man mentioned above.
She has subjective problems with concentration and memory. She used to read, but it was never a strong interest. She said she had no hobbies or projects. Asked why, she said, “Because everything costs money.”
She watches television, often videos on YouTube, for about 6 hours daily. She follows the news and watches cooking shows but doesn’t try to recreate the recipes.
Assessing work capacity is challenging. Ms Chan is 72 years old but said she would have liked to work perhaps until she was 73. She is not actively looking for work and hasn’t worked in any capacity since April 2023.
Consistency:
There was some evidence of inconsistency in Ms Chan’s report. She repeatedly denied having friends until I questioned her about the contradicting points of history mentioned above. Her explanation regarding her statement to Dr Anand doesn’t clarify why she gave this history to him, citing activities that she now denies.
PIRS ratings:
Self-care and personal hygiene – not appealed, class 2
Social and recreational activities – not appealed, class 3
Travel – not appealed, class 2
Social functioning – Ms Chan, has maintained close relationships with her adult sons but sees them infrequently. She has maintained a friendship with a male ex-work colleague, whom she visits weekly or second weekly. She was close to her mother until her mother’s death. She has lost some friends because of her social disengagement. She divorced for reasons unrelated to her work. Class 2.
Concentration, persistence and pace – Ms Chan claims subjective problems with concentration and memory. She doesn’t read but has never had a strong interest in this activity. She watches television for 6 hours daily and is interested in current events. She focused well during my 90-minute interview, with no evidence of problems with attention, concentration or memory. Class 2.
Employability – Ms Chan is 72 years old but said that she would like to have worked until she was 73. She has made no effort to find work since April 2023. Given her general level of overall functioning, it is likely that she could function in some capacity in a role consistent with her experience. Possibly, her attendance would be erratic. Class 4.
In ascending order, her ratings are 2, 2, 2, 2, 3 and 4. The aggregate is 15, median 2, equating to an 8% WPI. These ratings are unchanged from those of the MA on 3 October 2024.
Findings on clinical examination
I assessed Ms Chan for 90 minutes using an audiovisual link from her friend’s home.
She presented casually attired, wearing glasses and neatly combed hair, and appeared well-groomed.
Although she had some command of English, the entire interview was conducted with the assistance of the Cantonese interpreter.
She was cooperative during the interview.
She described anxiety and depressed mood. Her affect was reactive and congruent with the interview content.
It wasn’t possible to assess thought form because of the language barrier.
She generally stayed on topic, although she became animated on a couple of occasions and described her perception of poor treatment in the workplace. She accepted redirection.
She acknowledged occasional thoughts of suicide.
Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations were done.
Signed: Dr Douglas Andrews
The Appeal Panel considers that the examination undertaken by Medical Assessor Douglas Andrews was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Douglas Andrews has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS categories that have been challenged on appeal, namely social functioning, concentration, persistence and pace and employability. The Appeal Panel notes that Medical Assessor Douglas Andrews had regard to the other evidence before him, has not relied on self -report alone and has used his clinical expertise on the day of assessment to make recommendations to the Appeal Panel about the assessments of the contested PIRS categories. The Appeal Panel also notes Medical Assessor Douglas Andrews findings on clinical examination of the appellant and his diagnosis made after clinical examination of the appellant, namely that the appellant worker meets DSM-5 criteria for persistent depressive disorder with an ongoing major depressive episode and anxious distress. The Appeal Panel agrees with and adopts the findings of Medical Assessor Douglas Andrews.
In respect of Social Functioning, Table 11.4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4
Severe impairment: unable to form or sustain long term relationships. Pre-existing relationshipshe ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
Medical Assessor Douglas Andrews on re-examination assessed Class 2 with the following reasoning:
“Social functioning – Ms Chan has maintained close relationships with her adult sons but sees them infrequently. She has maintained a friendship with a male ex-work colleague, whom she visits weekly or second weekly. She was close to her mother until her mother’s death. She has lost some friends because of her social disengagement. She divorced for reasons unrelated to her work. Class 2.”
The assessment by Medical Assessor Douglas Andrewes on re-examination accords with Class 2. A mild impairment is the best fit as the appellant has maintained a strong friendship with a former work colleague as well as relationships with family members. As social functioning is concerned with the quality of relationships, the Appeal Panel agrees with the finding on the re-examination of Class 2, which accords with the assessment made in the MAC.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| Class 2 | Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:
“Concentration, persistence and pace – Ms Chan claims subjective problems with concentration and memory. She doesn’t read but has never had a strong interest in this activity. She watches television for 6 hours daily and is interested in current events. She focused well during my 90-minute interview, with no evidence of problems with attention, concentration or memory. Class 2.”
The Appeal Panel considers that based on these findings, the best fit is a mild impairment or Class 2 for concentration, persistence and pace. This accords with the assessment in the MAC.
In respect of Employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:
“Employability – Ms Chan is 72 years old but said that she would like to have worked until she was 73. She has made no effort to find work since April 2023. Given her general level of overall functioning, it is likely that she could function in some capacity in a role consistent with her experience. Possibly, her attendance would be erratic. Class 4.”
The Appeal Panel considers that the best fit is severely impaired at class 4. This accords with the assessment in the MAC.
What this means is that the classes assessed by the Appeal Panel for the contested PIRS categories of social functioning, concentration, persistence and pace and employability have all been confirmed on Appeal and the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on
3 October 2024 should be confirmed.
0