Delaney v AAA NEXTT Group Pty Ltd
[2025] NSWPICMP 29
•13 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Delaney v AAA NEXTT Group Pty Ltd [2025] NSWPICMP 29 |
| APPELLANT: | Jennifer Myra Delaney |
| RESPONDENT: | AAA NEXTT Group Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Elizabeth Beilby |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 13 January 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Employer appeal against 8% whole person impairment (WPI), being the non-lead Medical Assessor (MA) concerned with injury to the claimant’s cervical spine, scarring and nervous system; whether the MA was obliged to identify the documents which established injury to the cervical spine; whether the MA should have explained whether asymmetry of motion was associated with a right shoulder injury; Held – appeal misconceived and brought with an eye too keenly attuned to the perception of error; Skates v Hills Industries applied; Bojko v ICM Property Services Pty Ltd referred to. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 September 2024, Jennifer Myra Delany lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
2 September 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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 ground(s) 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
The appellant was employed by the respondent as a learning and development manager. She reported that she was unsupported by her managers particularly around technical aspects of her employment. The appellant says that she was overworked and under-staffed and not paid appropriately for the work that she did. The applicant claimed a psychological injury occurred as a result of her employment with the respondent.
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 the worker should undergo a further medical examination because it was hard to follow the Medical Assessor reasoning process.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) colour copy photograph of script/medication of Venlafaxine 300mg and additional medication of Brexpiprazole.
The appellant submits that the evidence is relevant. The appellant submits that the evidence was not available and could not reasonably have been obtained because the Medical Assessor incorrectly recorded the amount of Venlafaxine as 25mg incorrectly where the applicant was being treated with 225mg of Venlafaxine per day.
The appellant says that there has been a factual error in recording the accurate dosage of medication. It was submitted that accurate information regarding medication could have the capability to change the medical assessment in respect of a number of psychiatric impairment rating scale (PIRS) categories.
The respondent submits that the additional information should not be allowed as the scripts increasing Venlafaxine and Brexpiprazole were prescribed after the examination took place.
The Appeal Panel has determined that it is necessary for the appellant to be re-examined (for reasons that will become apparent), the medication that the appellant is currently taking is a relevant consideration for the assessment. It is observed by the Panel that the medication package only showed patient name and general practitioner (GP) name, no medication name or dose.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a) colour copy photograph of script/ medication of Venlafaxine 300mg and additional medical of Brexpiprazole.
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.
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 Appeal Panel will now consider the Medical Assessment Certificate.
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.
The appellant complained in respect of several PIRS categories, that is, social and recreational activities, concentration persistence and pace, employment and not considering the effect of treatment.
Social and recreational activities
In respect of social and recreational activities, the Medical Assessor recorded:
“She earlier enjoyed reading and used to attend the choir. She said that she had started having difficulties in reading and had to stop reading. She continued to participate in choir. However, when the choir mistress left, the choir was managed by a ‘piano person’. She had stopped attending the choir about 6 weeks back when there was a change in the choir mistress. She completed 6 sessions of yoga and went out with her friend. She said she was a close friend who ‘makes an effort and meets her at her house’. They also go out for dinner. She added that she has ‘a neighbour who lives behind them who is a pastor and is very kind, and they have a coffee once every two weeks’.
She has started ‘painting by numbers and feels that it is a good distraction’. She has also started knitting and said that she only knitted as a kid. She said that she had been able to knit but drops a few stitches at a time. She has also engaged in other activities like reading and working. She said, ‘if there is a community event, she will go town and attend that with her family’. She is well-supported by her neighbour and stays with her neighbour when her family leave the town to see his family.” (page 4).
The Appeal Panel observes that it is difficult to follow the reasoning of the Medical Assessor regarding social and recreational activities. The Medical Assessor contradicts herself by saying the appellant has stopped reading and, on the other hand, is having difficulty reading. This may be more appropriately considered in the assessment of impairment of concentration, persistence and pace. It was unclear how frequently the appellant engaged in social activities such as outings with her friend or attending community events.
Concentration, persistence and pace
The Medical Assessor recorded:
“Ms Delaney reported that she finds it ‘difficult to focus on words’. Her attention and concentration are not good. She said that she is in trouble with Paul and she forgets things. She added that she has to re-read things multiple times to understand them compared to being an avid reader. She now has to use checklists and alarms to remember things. However, Ms Delaney has restarted knitting now and has been able to knit two scarves. She said that she had to reknit that 4 or 5 times as she is a perfectionist. During the assessment, Ms Delaney was able to be focused and was not distracted.
She was able to give a clear timeline of the incidents. She scored 3/3 on a 3-word repeat and 3/3 on a 3-word recall.” (page 5).
In relation to this category, the Appeal Panel observes that there is a complaint made by the appellant in relation to the use of the testing regarding short-term recalls.
The Appeal Panel observes that whilst the word recall test was used, one is not sure what reliance is made in relation to that test. It does form however that part of the totality of the reasoning.
Employability
The Medical Assessor recorded:
“I asked Ms Delaney about her thoughts regarding return to work to which she said, ‘I had a career path set, but it is not there anymore’. She added ‘I am a living ghost and cannot think about work’. Ms Delaney has severe impairment and cannot work more than 1 or 2 days at a time, less than 20 hours per fortnight in a more supportive environment.”
The Appeal Panel observed that the Medical Assessor appears to not focus on reasons directly in relation to employability in the body of the report. The comments in relation to employability are limited to the PIRS rating form (at page 11 of the report).
The Appeal Panel found it difficult to follow the Medical Assessor’s reasoning in relation to this PIRS category.
Effect of treatment
The appellant also complains that there has not been a clear line of reasoning in relation to the effect of treatment.
The Appeal Panel has considered the complaint in respect of the failure to consider the effect of treatment in the assessment of impairment. The Appeal Panel has considered the submissions outlined at the Appellant’s Submissions to the effect that the Medical Assessor ought to have set out reasoning in respect of why her opinion differed to that of Dr Paisley and considered whether at least there should have been some assessment in relation to the likely deterioration of her condition if treatment was withdrawn.
The Medical Assessor reported the following:
“Present treatment: Ms Delaney has now started seeing Dr Narinder Panesar, a psychiatrist, three times. She is currently on tablets Quetiapine 12.5mg, which has been decreased from 25mg because of excessive sedation. She is also on venlafaxine 25mg and Prazosin 8mg. She has also been started on lithium 250mg.”
The Medical Assessor also observed that:
“Despite the treatment that she has received there has not been much improvement in her mental health” and “she continues to experience the same symptoms as earlier, and there has only been minimal improvement”.
The Appeal Panel considers it likely that the incorrect dose of venlafaxine was a typographical error; a ‘2’ had been omitted. The Medical Assessor did not address the issue of adjustment for the effect of treatment and the Appeal Panel agrees with the appellant that this is an error.
Conclusion regarding re-examination
After considering the Medical Assessment Certificate, the Appeal Panel has formed the view that the Medical Assessor has failed to provide adequate reasons for the assessment. Whilst it is understood that the Medical Assessor is not required to provide extensive detailed reasoning, it must be seen and observed by the reader that the actual path of reasoning is in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.[1] The Appeal Panel has formed the view that this has not been done.
Further medical examination
[1] State of New South Wales (NSW) Department of Education v Kaur [2016] NSWSC 346; and Wingfoot Australia Partners Pty Limited v Kocac [2013] HCA 43.
Dr Douglas Andrews of the Appeal Panel conducted an examination of the worker on
9 December 2024 and reported to the Appeal Panel.Re-examination report of Dr Douglas Andrews dated 9 November 2024
“The workers medical history, where it differs from previous records
Ms Delaney lives at Picton with her husband, Paul, and three of her four children. The children at home are aged 12, 15 and 18. She has a 21-year-old daughter at university in Bathurst. Paul works full-time supporting general practitioners in primary care and can work from home two days weekly.
Ms Delaney started working with the respondent in September 2019 and has not worked in any capacity since her date of injury, 23 August 2021.
The medical assessor diagnosed Ms Delaney with a persistent depressive disorder with anxious distress and determined a 7% WPI. There was no deduction for a pre-existing condition and no adjustment for treatment effect.
Ms Delaney felt some early improvement after leaving work but not much since. Regarding improvement, she said, ‘Maybe 20%, but I’m still not me.’ Her husband Paul agreed that there had been only minor improvement.”
There were no pre-existing psychiatric conditions.
Additional history since the original Medical Assessment Certificate was performed
Current treatment:
General practitioner Dr Sarika Rane, psychologist Ms Astrid Toscan and psychiatrist Dr Narinder Panesar professionally support Ms Delaney.
She takes venlafaxine 300 mg mane, prazosin 8 mg nocte, quetiapine 12.5 mg nocte and lithium carbonate 250 mg daily.
She had been seeing her psychologist every 2-3 weeks but has not seen her for the last six weeks. Ms Toscan felt that treatment benefits had plateaued and recommended a 2–3-week inpatient stay at South Coast Private Hospital. This recommendation rests with the treating psychiatrist, Dr Panesar. The hope is that Ms Delaney would benefit from the inpatient programs offered in the hospital rather than needing an acute admission.
Current symptoms:
Ms Delaney described a flat mood and said, “I battle to put on a brave face.” She is depressed without diurnal variation. She has a reduced capacity to experience positive emotions.
She has low energy and is often fatigued. She struggles to get out of bed and relies on her husband to encourage her.
She has a minor degree of irritability.
She is anxious, especially about changes in her routine, and copes poorly with interacting with others in public.
She has subjective problems with concentration, attention and memory. She struggles with short-term memory; she forgets names and must write things down. She has left taps running, flooding the kitchen, and the gas stove turned on.
Earlier in the course of her illness, she had suicidal thoughts, but these are not prominent now. She continues to feel that she is a “weight and a burden” on others.
She goes to bed between 10:30 and 11:30 PM and sleeps quickly with medication. She sometimes wakes through the night and has disturbed sleep. She no longer sleeps with her husband because she is restless, sometimes kicking and yelling.
She has no libido.
Her appetite is reduced, and she eats a poor-quality diet. She has gained 7-8 kg since leaving work, 6 kg this year. At 78 kg and 170 cm, her BMI is 27.0, marginally in the overweight range. She attributed her weight gain to eating energy-rich food, the effects of medication, and a lack of exercise.
Activities of daily living:
She rises at 9 AM when her husband is at home and stays in bed until 11 AM, when he goes to work.
She makes breakfast and sits outside with her dog.
She showers and changes her clothes every second day, often after prompting by her husband. She washes her hair weekly and visits a hairdresser every six weeks to three months.
She does minor chores and gardening. Her husband suggests tasks, and she will do things such as emptying the dishwasher, hanging out laundry, weeding or watering the garden. She cooks simple meals once or twice weekly, often assisted by her children.
She usually walks her dog for 30 minutes daily.
Before becoming unwell, she did yoga and cycled, attended her children’s sporting activities, was a choir member, and enjoyed social outings with family and friends.
She no longer does yoga, saying, ‘I can’t be bothered.’ She left the choir when her choirmaster quit five or six months ago. The choirmaster had prepared recordings of her part to help her learn. The new choir leader doesn’t offer this support, and Ms Delaney feels she can’t cope.
She is less involved with her children’s sporting activities. She waits in the car when she takes her daughter to netball practice. The games are early on Saturday morning, and Ms Delaney can only attend occasionally because she struggles to get out of bed.
She has a girlfriend who comes over monthly, but they no longer go to cafés or restaurants. Instead, they sit and talk at home. She visits her neighbour, a retired pastor, every couple of weeks. She has travelled to visit her mother and father, who are one and a half hours away from her home, once in the last six months.
She does paint-by-number paintings and can spend 2 to 4 hours regularly. She also knits scarves. She tried to take up a new embroidery hobby but struggled to follow the instructions.
She prefers family birthdays and Christmas at her home without extended family. Her husband has a large family, and she occasionally visits with her husband but often refuses because she copes poorly with the noise and stimulation. She attends these gatherings at her husband’s family three or four times yearly.
In January 2023, she went with her family to Tasmania, where they toured in a campervan. In September 2024, they drove to Broken Hill for five days of camping. She was responsible for arranging campsites, which she found stressful. She said the holidays were ‘wonderful but stressful. Navigating was tricky.’
She is independent with local travel, including taking her children to sports practice, driving to the shops, and attending medical and psychology appointments. The appointments are about 45 minutes from her home.
She has maintained close and loving relationships with her immediate family, parents and two close friends.
She no longer reads except for browsing magazines such as Gardening Australia and Organic Gardening. She avoids social media except for interacting with her daughter on Snapchat.
Diagnoses:
My findings today are consistent with the MA’s diagnosis of a persistent depressive disorder with anxious distress. However, Ms Delaney also meets the DSM-V criteria for an ongoing major depressive episode. She has all nine symptoms listed as the criteria for this condition.
Impairment ratings:
Ms Delaney appealed the MA’s findings in social and recreational activities, concentration persistence and pace, employability, and the MA's failure to consider the effects of treatment.
Social & recreational activities – Ms Delaney visits her friend and neighbour every two weeks and has visits from a friend to her home every four weeks. These are passive and quiet activities with trusted friends. She occasionally attends her children’s sporting activities but often misses them. Celebrations for her immediate family’s birthdays and Christmas are in her home without external guests. She visits her husband's family three or four times a year but remains quiet and withdrawn. Frequently, she refuses invitations. She has stopped going to yoga and choir. She occasionally goes to community events such as choirs or carolling but recently refused such an event. She went on a family holiday to Tasmania in 2023 and Broken Hill in 2024 and took responsibility for arranging accommodation. This is consistent with a mild impairment. (Class 2)
Concentration, persistence, and pace – She has stopped reading, except for browsing gardening magazines. She can persist at painting activities for 2-4 hours and knitting. She follows simple patterns that are not intellectually challenging. She struggled to learn a new hobby, embroidery, and gave up. She has subjective problems with concentration, persistence, and pace. She forgets names, has left taps running, flooded her kitchen, and forgotten to turn off her gas stove. Her husband tends to supervise her activities. She showed minor challenges with memory and needed some questions restated during my interview. This is consistent with a moderate impairment. (Class 3)
Employability – She hasn’t worked in any capacity since 2021. She has continuing severe symptoms, impairment in concentration and has lost confidence. She becomes anxious with a change in routine. For these reasons, I consider her unfit to work. (Class 5)
The MA had found mild impairments in care and personal hygiene, travel and social functioning.
Her ratings are 2, 2, 2, 2, 3, and 5. The median is class 2, and the impairment rating is 9% WPI.
Adjustment for the effects of treatment:
Ms Delaney has been unwell for more than three years. She described some minor improvement after leaving work but has plateaued since. Her complex medication regimen highlights the difficulty in managing her condition. Her psychologist has recently suspended treatment, feeling they were making little progress. Recently, admission to the hospital has been recommended for more intensive psychotherapy.
Dr Rastogi assessed her with a 22% WPI in November 2022 and 19% in October 2023. Both times, Dr Rastogi described her as ‘socially reclusive with limited contact lost contact with friends. She remains reclusive and isolated. She has anxiety and social situation and immense issues trust. She prefers to be homebound and does not enjoy going out.’ There has been apparent improvement since then.
Ms Delaney’s symptoms are moderately severe, long-standing and entrenched. If her complex medication regimen were withdrawn, she would likely deteriorate. She has had some improvement in her impairment and warrants an adjustment for the treatment effect of 1% WPI.
Her final impairment level is, therefore, a 10% WPI.
Findings on clinical examination
I assessed Ms Delaney in her home via an audiovisual link for about 55 minutes. She was supported by her husband Paul. Paul remained silent throughout the interview except when I asked him about his work and, in the end, whether he felt he had anything else that he would like to add.
She presented as a middle-aged woman, casually attired and well-groomed.
She was anxious about the interview and described her mood as flat. Her affect was restricted, consistent with her mood and congruent with the interview content. Several times, she appeared on the verge of tears
There was no evidence of any disorder of thought form or perception.
She gave a coherent account with only minor memory challenges. On several occasions, she needed questions restated but never required redirection.
At the end of the interview, Mrs Delaney and her husband agreed that we had covered everything necessary.’
Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”
Medical Appeal Conclusion
The Appeal Panel adopts the findings and conclusions reached by Dr Douglas Andrews in his report to the Appeal Panel. It therefore follows that the MAC issued on
2 September 2024 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: | W24107/24 |
Applicant: | Jennifer Myra Delany |
Respondent: | AAA NEXTT Group 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 Verma 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-total/s % WPI (after any deductions in column 6) |
| 1.Psycholo-gical injury | 23/8/21 | Chapter 11 Guidelines | Guidelines 11.11, 11.12 Tables 11.1 to 11.6 | 10% | 0% | 10% |
| Total % WPI (the Combined Table values of all sub-totals) | 10 | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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