Field-Whittaker v Thomas & Naaz Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Field-Whittaker v Thomas & Naaz Pty Ltd [2023] NSWPICMP 59
APPELLANT:	Belinda Field-Whittaker
RESPONDENT:	Thomas & Naaz Pty Limited
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	24 February 2023
DATE OF AMENDMENT:	17 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker alleges that fresh evidence impugned the classification of the Approved Medical Specialist (AMS) in four psychiatric impairment rating scale (PIRS) categories and/or established deterioration; that AMS had given insufficient reasons for his finding of maximum medical improvement (MMI); and that the AMS erred in his classification of four PIRS categories; Held – the additional statements of the worker and further reports of a psychologist and psychiatrist did not constitute fresh evidence within section 327(1)(b) as they were either available prior to the assessment or merely reiterated opinions which were before the AMS on assessment; the evidence did not establish a deterioration which resulted in an increase in permanent impairment; the AMS gave adequate reasons for finding MMI; there were errors in the AMS’s classification of Social functioning and Employability warranting re-examination; as more than two years had elapsed since the original Medical Assessment Certificate (MAC) it was appropriate to reassess each of the PIRS categories; after re-examination MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2020, Belinda Field-Whittaker (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Application). The medical dispute was assessed by Dr Samson Roberts, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 26 November 2020.
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):
·        deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
·        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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was formerly employed by Thomas & Naaz Pty Limited (the respondent) a company which operated four medical practices. From 2012, she was employed as the Practice Manager of the business.
During the course of her employment, the appellant perceived that she was exposed to bullying, harassment and victimisation. It is common ground that she suffered a psychiatric injury arising out of her employment.
The appellant sought treatment for her psychological condition from her general practitioner Dr Lorenzo. She was certified as unfit for work from 17 December 2019. She was referred to a clinical psychologist, Dr Stephanie Saulnier, who diagnosed adjustment disorder with anxiety. She was treated with cognitive behavioural therapy. She initially declined the offer of anti-depressant medication.
On 1 July 2020, Dr Martin Allan, a psychiatrist, provided a report to the appellant’s solicitor. He diagnosed adjustment disorder with anxious mood. He expressed the opinion that the appellant would not experience an:
“improvement in her mental state until matters have been completed and she is no longer employed or being harassed by her employer.”
Dr Allan assessed whole person impairment (WPI) in accordance with the psychiatric rating scale (PIRS) in Chapter 11 of the Guidelines. He expressed the opinion that she suffered 19% WPI as a result of the injury.
On 28 June 2020, Dr Peter Whetton, a psychiatrist, provided a report to the respondent’s insurer. He diagnosed “a severe Adjustment Disorder with Anxiety and Depression”. He expressed the opinion that the appellant had not reached maximum medical improvement (MMI) at the time of his examination. He did not assess WPI.
The difference of opinion between Dr Allan and Dr Whetton as to MMI and WPI gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, a delegate of the Registrar of the former Workers Compensation Commission referred the matter to
Dr Roberts for assessment. It is from that assessment that the appellant brings this appeal.
On 28 May 2021, a Medical Appeal Panel revoked the MAC issued on 26 November 2020 and, following a re-examination of the appellant by a member of the panel, issued a new MAC by which it certified that the appellant suffered 7% WPI.
On 25 May 2022, Harrison AsJ in the Supreme Court quashed the decisions of the Medical Appeal Panel (MAP) of 28 May 2021 and 15 April 2021 and remitted the matter to the President of the Commission to be determined in accordance with law.
On 12 August 2022, the delegate referred the matter to the present Appeal Panel pursuant to s 328(1) of the 1998 Act.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the appeal panel determined that there was prima facie error in the MAC and that the worker should undergo a re-examination by Medical Assessor Douglas Andrews (MA), a specialist psychiatrist, who was a member of the panel.
As almost two years had elapsed since Dr Samuel issued the MAC the subject of this appeal, the panel determined that it was in the interests of justice to give both parties the opportunity to lodge updating medical material, and, if necessary to make further submissions. Accordingly, it directed that either party should lodge updating evidence from medical practitioners who had previously provided reports in the matter by 1 December 2022 and, if appropriate, make further submissions in respect of that evidence by 15 December 2022..

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.
Attached to the appeal were a number of documents which the appellant submitted should be received as fresh evidence in accordance with s 328(3) as they could not reasonably have been obtained by the party before the medical assessment. These documents are:
(a)    report of psychologist Dr Stephanie Saulnier dated 31 August 2020;
(b)    patient health summary Dr Sheila Lorenzo 22 April 2020 to 17 September 2020;
(c)    a number of medical certificates, and
(d)    further statement of the appellant dated 23 December 2020 and an annexed resignation letter.
On 22 January 2021, the appellant lodged the following further material which it submitted should be received as fresh evidence:
(a) a further report of Dr Saulnier dated 19 January 2021, and
(b) a further statement of the appellant dated 22 January 2021.
Finally, on 9 February 2021 the appellant lodged a further report of Dr Martin Allan which it submitted should also be received as fresh evidence.
The respondent opposed the admission of the above material into evidence. It argued that:
“(a)    Pursuant to Section 327(5) of the 1998 Act, the appellant is out of time to file any further evidence in relation to her appeal;
(b)     The appellant has failed to satisfy the criteria that there are any special circumstances which justify an increase in the period of an appeal;
(c)     The further material provided by the appellant is not relevant, does not take the matter further and/or could have been obtained prior to the AMS assessment.”
The panel will determine the dispute relating to this ground of appeal under the heading “Findings and Reasons” below.

EVIDENCE

The appeal panel has before it all the documents which were sent to the AMS for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the AMS which are relevant to the appeal are set out 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. In summary the appellant argued three broad grounds of appeal. First, she relied on the additional information served with the appeal to suggest that her condition had either deteriorated or had not reached MMI. She stated:
“Perhaps consistent with the insurer’s position at the outset of these proceedings, the Applicant’s statement (and the other evidence) regarding her current condition and treatment suggest that the Applicant’s condition may not yet been stable enough to assess permanent impairment or has deteriorated since the assessment by Dr Roberts. This is accordingly relevant to the assessment.”
Secondly, the appellant submitted that the AMS had failed to provide sufficient reasons for his conclusion that her condition was “sufficiently stable in order to be assessed”. Dr Roberts had failed to “address this question at all”. He gave simple answer “yes” to this question in his reasons and certification.
Thirdly, the appellant alleged that the AMS had erred in his classification of the PIRS categories of social and recreational activities, social functioning, concentration persistence, and pace and employability.
In respect of Social and recreational activities, the appellant submitted that the AMS should have assigned Class 3 in accordance with the opinion of Dr Allan. She argued that:
“The Class 2 finding of Dr Roberts is at odds with the history taken in the body of his report, the evidence of Dr Allan and Dr Whetton, and insufficient reasons are given in respect of his reference to COVID-19.”
The appellant continued:
“It is submitted that the Applicant is more appropriately categorised as Class 3 for this category. In the alternative, the Applicant relies on the contents of her further statement in support of her contention that should ought (sic) to properly be categorised as Class 3 for this category.”
In respect of Social functioning, the appellant argued that the assignment of Class 1 in this category was:
“completely at odds with the description of the Applicant’s injury and condition in the body of the report, and even the minimum requirements of the diagnosis.”
The appellant submitted that on the basis of the findings in the MAC she either had mild or moderate impairment and ought to be assigned Class 2 or 3.
In respect of Concentration, persistence and pace, the appellant noted the history recorded by Dr Roberts that she had difficulty concentrating and that her “mind drifts even when she is reading books to her 2-year old”. She continues:
“This appears to be the only history taken by Dr Roberts in respect of the Applicant’s concentration persistence and pace. On the basis of that history alone the Applicant ought to be classified as Class 3.”
In respect of Employability, the appellant submitted that the basis of the assessment was not clear. She submitted that:
“The Applicant has not worked since December 2019, has been certified unfit by her treating doctors, and found to be totally incapacitated by psychiatrists Dr Allan and
Dr Whetton. She is paid weekly benefits compensation on the basis of total incapacity.”
The appellant submitted that there was no explanation in the MAC as to how her home-making duties, parenting responsibilities, or the assistance she gives to her mother “demonstrates a capacity to work”.
In the alternative, it submitted that even if Dr Roberts’ assessment was correct at the time of his assessment, the additional evidence lodged demonstrated that she was “now totally incapacitated”. Accordingly, she should be re-assessed as Class 5.
The appellant sought a reassessment by a member of the appeal panel.
By its submission, the respondent opposed the matter being referred to a MAP. It argued that the further material was not relevant or could reasonably have been obtained prior to the medical assessment. It also submitted:
(a)    that there was no evidence that the appellant’s condition had deteriorated since her examination by the AMS on 11 November 2020;
(b)    the assessment was not made on the basis of incorrect criteria, and
(c)    the MAC did not contain a demonstrable error.
Accordingly, it submitted that the MAC should be confirmed.
In respect of the deterioration argument, the appellant noted that the new information lodged with the appeal referred to “a deterioration in August 2020”. As this predated the medical assessment on 11 November 2020, it was not relevant. It reiterated that there was no evidence that the appellant had suffered deterioration since the medical assessment.
In respect of the issue of maximum medical improvement the respondent noted that the AMS had determined that the appellant was stable. It continued:
“This was based on the appellant’s presentation on the day of the examination, his clinical judgement and the medical evidence before him.”
It was unnecessary in the circumstances for the AMS to give any further reasons.
In respect of the allegation that the AMS had fallen into error in assigning classes in the PIRS categories, the respondent referred to the decisions of the Supreme Court in Jenkins v Ambulance Service of New South Wales[1] and Ferguson v State of New South Wales & Ors[2].
[1] [2015] NSWSC 633 at [62].
[2] [2017] NSWSC 887 (Ferguson) at [33].
Addressing social functioning, the respondent noted that the appellant saw her close friend periodically and “went out for lunch sometimes”, had been on a holiday with her family, and also goes with her family to watch her son play sport. In these circumstances the findings of Class 2 impairment for social and recreational activities were open to the AMS/MA.
The respondent submitted that in each of the PIRS categories his classification was open to the AMS on the basis of the history he recorded in the MAC. It continues:
“The findings, opinion and assessment provided by the AMS were open to him, following his examination, and based on his clinical judgement and the evidence before him. The AMS has provided detailed reasons for his assessment. His reasons are logical and clear, as required by Wingfoot Australia Partners Pty Ltd v. Kocak[3]”
[3] [2013] HCA 43.

Further medical examination

Medical Assessor Andrews of the appeal panel conducted an examination of the worker on
19 January 2023 and reported to the appeal panel. Insofar as it is relevant his report is as follows:
“The worker's medical history, where it differs from previous records
Ms Field-Whittaker's medical history is as outlined in her previous medical certificates, including that of the assessment of the MAP psychiatric member, Dr Julian Parmegiani, dated 5 May 2021.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Field-Whittaker continues to live with her husband, Mr Michael Whittaker, her 13- year-old twin sons and daughter and her five-year-old daughter. Her 13-year-old son, Lewis, has ADHD. Mr Whittaker works as an accounts manager for a construction company.
Ms Field-Whittaker has done no work since leaving Thomas & Naaz in 2019. She states that her condition has deteriorated since the original MAC of 11 November 2020 and since the MAP assessment on 5 May 2021.
In June 2021, Ms Field-Whittaker's father unexpectedly left his marriage of 43 years to live with a woman with whom he was having an affair. Her mother had an accident about four years ago and lost the use of her right arm, so she was dependent on her husband's help. Ms Field-Whittaker has seen little of her father since, and he has moved to live in Turkey. Ms Field-Whittaker had been close to her parents and relied on them for support after her workplace injury.
In March 2022, Ms Field-Whittaker's brother-in-law committed suicide by hanging. Her sister had witnessed the event and tried to save her partner without success. She is now a single mother with one child.
These events negatively impacted Ms Field-Whittaker's mental health. She said, ‘we were such a close family; I still struggle not having my father around; [the marriage breakup] also impacted my brother-in-law.’ These have been traumatic events for
Ms Field-Whittaker and have exacerbated her mental health symptoms, at least temporarily. Had Ms Field-Whittaker not had her original injury, she would likely have been distressed but not developed a mood or anxiety disorder, or if she did, it would have resolved by now. For this reason, I consider that her current impairment is entirely due to her workplace injury.
Current symptoms:
Ms Field-Whittaker has a low mood with anxiety, reactive to circumstances, and without diurnal variation. She can take pleasure in her family, especially her ‘beautiful kids’ and her recently purchased dog.
She is irritable, cranky and prone to anger. She has subjective difficulties with concentration, attention and memory. She said, ‘it frustrates me so much; I am intelligent but can't concentrate on anything. My memory is shocking.’
She is bothered by intrusive memories of workplace events. She said, ‘Dr Thomas was a big person in my life.… His voice is in my head; I hear his opinion and his judgement about every part of my life.’
She has pervasive anxiety, which worsens when she is away from home. She frequently experiences panic attacks.
She does not have thoughts of self-harm or suicide but said, ‘sometimes I just want to run away.’
She defers going to bed as late as possible and has a long sleep latency. She is often bothered by distressing dreams related to events in the workplace.
She eats a good diet but has gained some weight because of increased alcohol. She was a light drinker but now consumes between two glasses to a bottle of wine each night, with a couple of nights off a week. She finds that alcohol limits her intrusive thoughts.
Her libido is reduced.
Treatment:
• escitalopram 20 mg in the evening
Ms Field-Whittaker has had trials of several antidepressants, including amitriptyline, venlafaxine, sertraline and fluoxetine. She has been seeing a clinical psychologist,
Dr Stephanie Saulnier since the onset of her workplace injury. Dr Saulnier has worked with dearousal strategies, mindfulness, CBT and DBT. She continues to see
Dr Saulnier every 2-4 weeks.
Ms Field-Whittaker has never consulted a psychiatrist for treatment, although there has been a recent discussion with her psychologist about doing so.
Given the enduring nature of her illness, several trials of antidepressants and extensive psychotherapy, I consider that she has reached maximum medical improvement.
Diagnoses:
• persistent depressive disorder with an ongoing major depressive episode and anxious distress
Whole Person impairment:
More than two years have passed since her assessment by MA Dr Roberts and 20 months since her review by MAP psychiatrist Dr Parmegiani. Given that she feels that her condition has deteriorated, an impression supported by her treating clinicians, I have assessed all six impairment categories.
Self-care & personal hygiene – Class 1
Ms Field-Whittaker attends to housework, including laundry, dishes, cleaning and cooking. She often shops online using 'click & collect' or may visit a local shop for specific items. She showers daily and attends to self-care appropriately. She is functioning within the normal variation in the general population. My assessment accords with that of the original MA, Dr Roberts.
Social and recreational activities – Class 3
Ms Field-Whittaker is significantly less socially active. She occasionally goes to a café with a friend. She has an annual vacation to Port Macquarie with her family. She attends her children's sporting activities but avoids interactions with other parents, whereas before, she would actively engage with them.
My assessment accords with that of Dr Parmegiani but differs from that of Dr Roberts, who had assessed a Class 2. Dr Roberts had written:
‘Ms Field-Whittaker has limited opportunity to pursue recreational activities. She sees her close friend periodically. She goes out for lunch sometimes. She has been on a recent holiday with her family and she goes with her family to watch her son play sport. Overall however, Ms Field-Whittaker gave the impression of diminished motivation to pursue social and recreational activities and although she spoke of non-psychiatric factors, it is probable that her psychiatric condition is impacting adversely on her participation in such activities. Ms Field-Whittaker acknowledged that she does not speak to her friends about the work circumstances but they have been supportive. She has become withdrawn from the mothers of the school with whom she used to engage. Notwithstanding her irritability, her relationships with her children remain positive.’
Dr Roberts describes limited social and recreational activity. When Ms Field-Whittaker is out, she will only interact with people very close to her, otherwise keeping to herself.
Travel – Class 2
She is independent with local travel, although anxious away from home. She can travel longer distances, such as to Port Macquarie, but does this with her supportive husband. My assessment is the same as that of Drs Roberts and Parmegiani.
Social functioning – Class 2
Ms Field-Whittaker has continued close relationships with her husband, children, mother, sister and one girlfriend. Because of her irritability, there is an occasional strain on her family relationships. She has lost contact with several friends because of her social disengagement. My assessment agrees with that of Dr Parmegiani, but
Dr Roberts found no impairment in this category, writing:
‘Ms Field-Whittaker spoke positively of her marital relationship and the support provided to her by her husband. Notwithstanding her irritable temperament, she retains good relationships with her children. She spoke of the supportive nature of her friendships but she has withdrawn from engagement with mothers at the school. She did not report the loss of friendships or relationships as an effect of her psychiatric decline.’
Ms Field-Whittaker has now significantly limited her social circle.
Concentration, persistence and pace – Class 3
Ms Field-Whittaker has subjective problems with attention and memory. She has given up reading, except for short tracts such as those on Facebook, because she loses focus after two or three pages and cannot follow the narrative. She watches serial television shows on Netflix or Foxtel. During a show of 45-60 minutes, she is often distracted and takes breaks. She is inattentive and struggles to recall the storyline. She has no projects or hobbies. Drs Roberts and Parmegiani found a mild impairment in this domain. Dr Roberts wrote:
‘Ms Field-Whittaker reported a decline in her functioning in this regard. She described herself as losing focus and being less organised and efficient. She participated effectively in a lengthy interview and no deficits of a cognitive nature were apparent. Overall, it is appropriate to conclude that she is mildly impaired in this area.’
And Dr Parmegiani:
‘Ms Field-Whittaker reported an impairment of concentration. She was however able to manage her finances, and order groceries online. She looked after her two-year-old daughter in 2020, on a full-time basis. The task of looking after a two-year-old child requires a degree persistence, concentration, and a capacity to perform complex tasks. Ms Field-Whittaker bent up to two hours on the Internet, scrolling through her Facebook feed. She posted new material from time to time. Ms Field-Whittaker drove a motor vehicle. She did not have motor vehicle accidents over the past 12 months. She only received a traffic fine for speeding, less than 10 km over the speed limit.’
Ms Field-Whittaker does not manage the family finances but orders groceries online and is a full-time carer of a young child. She spends less time now on Facebook and only scrolls through it without posting. She showed minor deficits during my interview (see physical examination below).
Employability- Class 4
Ms Field-Whittaker has not worked in any capacity outside of her home for more than three years. She hopes to return to work, and, to this end, she attended an interview for a position with a physiotherapist. She became anxious, had a panic attack, and had to leave. She has lost self-confidence and trust in others. She has subjective problems with concentration and memory that were evident during my interview.
Drs Roberts and Parmegiani found a moderate impairment in employability, whereas I considered it severe.
Dr Roberts wrote:
‘Ms Field-Whittaker's psychiatric symptomatology is of a nature that it is expected that she could not engage in work at the level at which she was previously employed. Her emotional fragility is likely to undermine her capacity to manage staff. Although she was employed as a part-time employee, her account reflected participation in full-time work. Ms Field-Whittaker is currently engaged in full-time homemaking and parenting responsibilities, although she is supported by her husband. She also provides support and assistance to her mother. It is expected that as an effect of her psychiatric condition, she would be unable to undertake more than 20 hours of work per week and she would not be able to engage in a role of the level of sophistication of that in which she was previously employed.’
And Dr Parmegiani:
‘Ms Field-Whittaker told me she could not return to work because she no longer trusted prospective employers. She lacked confidence and self-esteem. Ms Field-Whittaker was however able to perform productive activities that could attract remuneration in a different setting. She looked after her daughter full-time in 2020. She took her children to sporting activities on weekends. She purchased groceries online and she prepared meals. Ms Field-Whittaker would however struggle to work more than 20 hours per week for an employer, due to her reduced energy and poor motivation.’
It is conjectural whether Ms Field-Whittaker would cope with 20 hours a week in a different position. Given the severity of her symptoms, her loss of confidence and trust in others, and her apparent cognitive challenges, it is more likely that she would need to work in a position for fewer hours than this, one that was much less demanding than her previous position and her attendance would likely be erratic. Caring for her children, preparing meals, and attending sporting events do not impose the demands of the workplace, where she would be expected to meet the requirements of others and be consistent with performance and attendance.
On my assessment today, Ms Field-Whittaker had an aggregate score of 15 and a median of 3, equating to a WPI of 15%.
3. Findings on clinical examination
I examined Ms Field-Whittaker for 75 minutes without a support person by video link using Microsoft Teams; the connection quality was adequate to do a comprehensive assessment. Late in the interview, the connection failed, and I reconnected by FaceTime.
Ms Field-Whittaker presented as a casually attired and well-groomed woman. She had her hair pulled back, and she wore a T-shirt. She was friendly and cooperative throughout the interview.
She described a low mood and pervasive anxiety. Her affect was restricted, consistent with her stated mood and the interview content. She briefly struggled to maintain her composure a couple of times during the interview. There was no evidence of any disorder of thought form or perception.
Although Ms Field-Whittaker gave a good account of her history, she struggled with some details and sequences of events. She denied active thoughts of suicide. At the end of the interview, Ms Field-Whittaker agreed that we had covered everything necessary.
4. Results of any additional investigations since the original Medical Assessment
No Additional examinations have been done.”

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales.[4] The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
[4] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan,[5] 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.
[5] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[6] An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[6] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot[7] that it is only necessary for the MAC to explain the actual path of reasoning of the AMS in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd.[8]
[8] [2014] NSWSC 1344 (26 September 2014).
The AMS summarised the appellant’s injuries and diagnoses as follows:
“Ms Field-Whittaker described symptomatology consistent with the advent of a Major Depressive Disorder with Anxious Distress consequent upon the circumstances to which she was subjected in the workplace. Her account reflected a persistently depressed mood in addition to a range of symptoms consistent with the DSM-5 diagnostic criteria. In addition, she described the advent of anxiety in particular when confronted with direct reminders of her experience in the workplace. The symptomatology which she described as persisting at the time of the assessment indicated that her condition continued to meet the diagnostic criteria at the time of the assessment.”
In view of the re-examination of the appellant by the MA, and the panel’s acceptance of his findings and classifications in the PIRS categories, consideration of each of the appellant’s arguments may only be of hypothetical interest. However, given the long history of the matter, the panel felt it was necessary to deal briefly with those arguments.

Additional relevant information and deterioration

The panel concluded that the additional evidence lodged by the appellant with the Application on 22 January 2021 and 9 February 2021 was not fresh evidence as that term is used in s 328(3) of the 1998 Act. Virtually all of the additional evidence attached to the application to appeal was available to the appellant prior to the assessment.
The evidence lodged on 22 January 2021 and 9 February 2021 merely reiterates the earlier opinions of Dr Saulnier and Dr Allan. It is further evidence but not fresh evidence. The reiteration of opinions expressed in previous reports cannot provide an appropriate basis to impugn the decision of an AMS/MA where the opinions have been before the AMS/MA at the time of his assessment and not accepted or implicitly rejected in the MAC.
By his further report dated 3 February 2021, Dr Allan expresses the opinion that the appellants WPI remained at 19%. That is precisely the same formulation of WPI contained in his initial report, on which the claim in compensation is founded. Plainly, it does not establish a deterioration which results in an increase in the degree of permanent impairment as required by s 327 (3) (a). Thus, there is no evidence to support the deterioration ground in the additional evidence.

Failure to provide reasons for MMI

Given the panel’s determination in respect of other grounds of appeal, its conclusions in respect of this submission are merely academic. However, the panel notes that the appellant’s qualified psychiatrist saw her both before and after the assessment by the MA and on each occasion concluded that the condition was sufficiently stable to assess WPI. In those circumstances, there is no merit in the appellant’s argument that the AMS erred in certifying MMI.

Social functioning

In respect of social functioning the AMS gave the following reasons for assigning Class1:
“Ms Field-Whittaker spoke positively of her marital relationship and the support provided to her by her husband. Notwithstanding her irritable temperament, she retains good relationships with her children. She spoke of the supportive nature of her friendships but she has withdrawn from engagement with mothers at the school. She did not report the loss of friendships or relationships as an effect of her psychiatric decline.”
The descriptors for Class 1 refer to “No deficit, or normal deficit, attributable to the normal variation in the general population”. While it is not open to the panel to substitute its opinion, for that of the MA, the panel was unable to reconcile these descriptors with the AMS’s history that the appellant had withdrawn from engaging with mothers at school and there was “irritability” in her relationship with her children. The panel concluded that there was prima facie error in this classification. It was likely that the AMS had either assigned a wrong class or failed to explain the actual path by which he had reached his conclusion in accordance with the instruction in Wingfoot.

Employability

In respect of employability, the AMS noted that:
“Ms Field-Whittaker is currently engaged in full-time homemaking and parenting responsibilities, although she is supported by her husband. She also provides support and assistance to her mother.”
It is not entirely clear what inference in relation to employability the MA drew from the fact that the appellant was engaged as a full-time homemaker and provided assistance to her mother. It is possible that these activities may be relevant to employability. But in the absence of a clear explanation, the likelihood arose that the MA erred in the manner discussed by the Court of Appeal in Ballas v Department of Education (State of NSW)[9] in assigning conduct to the wrong category or scale. Alternatively, the AMS erred in failing to explain the relevance of the conduct to this category,
[9][2020] NSWCA 86 (6 May 2020) [93]-[94].
Having formed the view that it was likely that there was demonstrable error in the MAC, the panel concluded that it was appropriate for a specialist member of the panel re-examine the worker. In the unusual circumstances of this case, where more than two years had elapsed since the original assessment on 26 November 2020, the panel concluded that the MA should re-assess each of the PIRS categories on his re-examination. Psychological conditions can dissipate, improve, or worsen during such interval. To restrict re-assessment to 2 categories would not provide an accurate assessment of the appellant’s WPI at the time of certification.
The panel reached this conclusion bearing in mind the definition of MMI in chapter 1.15 of the Guidelines. It also noted the opinions of Dr Whetton and Dr Allan. The latter suggested the possibility of improvement in the appellant’s mental state when “matters have been completed and she is no longer employed”. The panel also concluded that It would be inappropriate to attempt a resolution of the issues in dispute on appeal without consideration of further medical evidence from the psychologist and psychiatrists whose reports were before the AMS on the initial assessment, if such evidence was available. For that reason, it gave leave to the parties to lodge updating reports.
On receipt of the report of MA Andrews of 19 January 2023, the panel reconvened and discussed his reassessment of WPI. The panel agreed with the MA’s conclusions that the elevation of the appellant’s psychiatric symptoms by post injury family stressors including the break-up of her parent’s marriage and the suicide of her brother-in-law was causally related to her work injury in accordance with the reasoning in Ozcan v Macarthur Disability Services Ltd[10]. Bearing in mind these recent stressors, the panel considered whether MMI had been reached to enable it to certify that the condition was capable of assessment. It concluded that the passage of time since the injury and the findings of the MA on examination strongly suggested that the appellant had reached MMI as defined in the Guidelines.
[10] [2021] NSWCA 56 (12 April 2021).
Finally, the panel considered each of the PIRS categories in the context of all of the medical evidence in the case. The panel concluded that it was appropriate to adopt the classifications in each category and certify WPI as found by the MA.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 November 2020 should be revoked and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

AMENDED MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	4818/20
Applicant:	Belinda Field-Whitaker
Respondent:	Thomas & Naaz 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 Dr Samuels 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 WorkCover Guides

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)

Psychiatric

3 July 2020 (Deemed)

Chapter 11,

Page 16, Table 11.8

15%

Total % WPI (the Combined Table values of all sub-totals)

15%

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2023] NSWPICMP 59

24 February 2023