Gallagher v State of New South Wales (Northern NSW Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Gallagher v State of New South Wales (Northern NSW Local Health District) [2024] NSWPICMP 273
APPELLANT:	Julie Gallagher
RESPONDENT:	State of New South Wales (Northern NSW Local Health District)
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	6 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for primary psychiatric injury; worker appealed on basis of error in the aggregate score in the psychiatric impairment rating scale (PIRS) calculations and the assessment in the PIRS category of social and recreational activities; Medical Assessor erred in calculation of the aggregate score; no error in assessment of assessment of social and recreational activities; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 March 2024 Julie Gallagher (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 February 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):
· 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, 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 applicant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 24 November 2023 in which she claimed 19% whole person impairment (WPI) in respect of psychiatric and psychological disorders.
In an Amended Referral for Assessment of Permament Impairment to Medical Assessor dated 6 January 2024 the matter was referred to the Medical Assessor, Dr Michael Hong, for assessment of WPI of a psychological/psychiatric disorder with the date of injury being
27 January 2022 (deemed).
The Medical Assessor examined the appellant on 30 January 2024 and assessed 6% WPI for the psychological injury deemed to have occurred on 27 January 2022.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.

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.

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.
The appellant’s submissions include the following:
(a)    the Medical Assessor made a demonstrable error and applied incorrect criteria in the calculation of the total aggregate score impairment. The scores total 15, not 12, and therefore the WPI should be 8%WPI, not 6% WPI;
(b)    the Medical Assessor incorrectly applied the psychiatric impairment rating scale (PIRS) in the category of social and recreational activities. The observations made by the Medical Assessor were inconsistent with a mild impairment (Class 2) and should be determined as constituting a moderate impairment (Class 3);
(c)    while the Medical Assessor is entitled to rely upon his own clinical judgment in assessing the six areas of function under PIRS, this task must be undertaken with regard to essentially the “best fit” within each area of function noting that the examples provided within each class descriptor are examples only;
(d)    the Medical Assessor fell into error of a type identified in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) by essentially conflating the fact that the appellant “has a close family network and sees her sister and a brother 3 to 4 times a year…they swim in the home pool and have lunch, or take walks together and they have regular family functions” as being activities that effectively justify an assessment of only a “mild” impairment for social and recreational activities;
(e)    there is no evidence to suggest other that one occasion for her husband’s 50th with family and friends, that any “regular family functions” are conducted outside of the family home or on a “regular basis” as stated by the Medical Assessor. Further the Medical Assessor incorrectly categorised a “family cruise” as being conduct of a social and recreational nature noting the history of the appellant being confined “to the cabin during that trip”;
(f)    apart from one trip to Brisbane for the State of Origin with her husband and daughter, and a combined party for two colleagues which the applicant said she left early, this represents the extent of her social activities as detailed by the Medical Assessor;
(g)    in terms of recreational activities, the appellant joined the local network team, however, “felt anxious near people and about being in a team”, only attended 50% of the games, or every two weeks and “even though she registered to play in 2024 is not sure if she will play and the team has a backup player in case she decides not to play.” This is not conduct that can be characterised as only a “mild” impairment with regard to social and recreational activities;
(h)    the appellant has an impairment that should be characterised as a “moderate” impairment in relation to social and recreational activities, and
(i)    the MAC should be revoked and an asessment of 17% WPI substituted.
The State of New South Wales (Northern NSW Local Health District’s) (the respondent) submissions included the following:
(a)    in respect of the PIRS calculations, it is agreed that the aggregate score should be 15, not 12 and based on the aggregate score of 15 and median of 2, the total impairment is 8%. This is an obvious error in the MAC, which should be corrected;
(b)    in respect of social and recreational activities, the appellant has not provided any persuasive evidence or explanation as to why the Medical Assessor erred in placing her in Class 2;
(c)    the level of the appellant’s social activity is more aligned with the Guidleines under Class 2 than Class 3. There is no suggestion that she rarely goes to social events, or only goes when prompted by family or claose friends. There is no indication that she will not go out without a support person or is not actively involved;
(d)    the Medical Assessor acknowledged that his assessment of class 2 for this category differs from the assessment provided by Dr Teoh (the appellant’s medicolegal expert). The Medical Assessor’s assessment for this category aligns with the assessment of the respondent’s medical expert, Dr Berry, who also assessed class 2;
(e)    it was open to the Medical Assessor to arrive at his assessment and ultimate conclusion based on the examination carried out on the day. The Medical Assessor was required to arrive at his own conclusion based on his clinical judgment and balancing the medical evidence and factual evidence before him. He has provided sufficient and substantial reasoning for assessing the appellant under class 2 for social and recreational activities;
(f)    there is no demonstrable error or application of incorrect criteria in the MAC and the Medical Assessor did not err in assessing the appellant under class 2 for social and recreational activities, and
(g)    the MAC should be confirmed.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 the form of the words used in s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Social and recreational activities

The appellant submitted that the observations made by the Medical Assessor were inconsistent with a mild impairment (Class 2) and should be determined as constituting a moderate impairment (Class 3).
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
Under “Social activities/ADL” in the body of MAC, not the PIRS rating form itself , the Medical Assessor wrote:
“Ms Gallagher is living with her husband, who works in the health industry and has been off work since May 2023, she said to support her, and he is expected to return to work in May 2024. They have two children at home, aged 14 and 15.
Ms Gallagher gets up and does the school drop-off and school pick-up, and the children recently returned to school. She does most of the housework and shares the cooking with her husband. She goes to the shops early in the morning as there are only a few people there. She goes to watch her children play sports, e.g. netball.
She visits her mother every second day as she is in an Aged care facility now.
She described some anxiety driving, and has been careful on the road and said she avoids conflict on the road.
She said her local friends are related to health services and she avoids them. She has contact with some friends who are not local. She has a close family network and sees her sister and a brother 3 to 4 times a year and they live in Tasmania and Queensland, and she catches up with a sister once a month. She said they swim in the home pool and have lunch, or take walks together and they have regular family functions.
She went on a cruise with her family in late 2022 and has not had another holiday since. She reported she had COVID infection and stayed in the cabin during that trip.
She joined the local netball team, but felt anxious near people and about being in a team, and estimated having only attended 50% of the games, or every 2 weeks, and played during the season between March and September 2023, and even though she registered to play in 2024, she said she is not sure if she will play and the team has a backup player in case she decides to not play.
She follows NRL on TV and went to the State of Origin game with her husband and daughter in mid-2023 in Brisbane and recalled she enjoyed it.
She said she does not go to parties anymore as she is anxious around people. She attended a combined party for 2 colleagues and friends, but there were many people from the health service and she left earlier. She said for her husband's 50th birthday last year, they had a party with family and friends at the local surf club and it was okay.
She has been married for 12 years and said that since the work stress commenced, there has been some tension and marital strain, and he is quite supportive. There has been no separation.
I noted her other activities in the PIRS.”
Under “summary of injuries and diagnoses”, the Medical Assessor wrote:
“In terms of WPI, Dr Teoh rated 3 in social and recreational but he was not aware of any social or recreational activities she has engaged in. She does engage in occasional, if not regular, social and recreational activities with smaller groups of people and people that are not associated with her former employer, my view is that a 2 is more accurate.”
The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 2
She attends occasional social recreational activities with her family and friends. Overall, she has been less since her injury. She does not go to large social functions now due to her social anxiety. She played team sports in 2023.”
Dr Ben Teoh, consultant psychiatrist, in his report dated 24 April 2023, assessed a Class 3 for social and recreational activities providing the following reasons:
“She has avoided social contact. She has been easily triggered by noises. She is not very communicative.”
Dr Teoh noted that the appellant had been staying at home to do some home duties. He noted that she had been trying to focus on exercise but had been lacking motivation.
Dr Timothy Berry, consultant psychiatrist, in his report dated 27 April 2023, noted:
“Reduced socialisation. Most friends are connected to work, and she does not want to talk or hear about work so has cut back on seeing some friends. She is able to go to events if there are no people from work present. She attended her husband’s 50th birthday party recently.”
Dr Berry noted:
“She takes her dog for a walk….She went on a cruise with her husband and children at Christmas time although she got COVID and was restricted to their cabin.”
In a report dated 29 August 2023, Dr Berry wrote:
“Prior to her current injury Ms Gallagher reports leading a full and active life. She was working full-time and engaged in family life raising her two children. Work life would ‘spill over’ into her personal life and she would socialise with a number of friends from work. She would go on regular family outings and holidays. She regularly went out for breakfast with her family. She and her daughters played netball. She would go out for dinner with friends on a regular basis.
Ms Gallagher’s normal daily routine is now as follows: She gets up, showers and brushes her teeth. She has a cup of tea. Her daughters get ready for school and Ms Gallagher then drives them to school. She sometimes goes to buy a coffee for her and her mum. She sits with her mum for a couple of hours. She puts some washing on and attends to domestic chores. She finds house cleaning is less thorough (not the ’OCD way’ she used to clean). She undertakes some computer work to prepare for a hearing related to her employment claim against her former employer. She cooks dinner most evenings. In the evening she sometimes watches a game show with her family or footy if there is a game on television. She can get irritated by television. She does not go for any walks either with or without the family dog. She finds it depressing being at home all day.
She generally has no contact or visits from friends except for text messages. She went to a social function at the end of June (50th birthday at Rainbow Beach – an hour north of the Sunshine Coast) but many staff from Tweed Hospital were present and she felt uncomfortable so she left early. She has not gone out for meals or breakfast with her family.
She totally avoids people from work. She generally feels irritable around others and wants to be at home. Her husband is patient and supportive. They have some arguments. When she feels frustrated and that an argument is likely she will go to her bedroom to get some space. Last week he asked her ‘when are you going to come back to us?’. They have slept in separate rooms prior to the injury because he likes sleeping in a dark, airconditioned room.
Ms Gallagher’s daughters are well adjusted and independent and she appears to have a good relationship with them. She takes them to netball practice which they enjoy.
She attended a State of Origin game with her family and enjoyed it. They caught a train to the game. It was the only social event she had undertaken for months.
She has not been on holiday except for the holiday over Christmas 2022 outlined in the First Report.
She is able to drive. She drives herself to medical appointments. She drives her daughters to school. She collects them from the bus sometimes. She drives to netball. Her husband drives when they go on longer trips.
She can go to the supermarket without a support person. She tends to go in the morning when she thinks it will be quiet.
Ms Gallagher is able to focus on preparing for her hearing against her employer even though she finds this stressful. She is not reading (previously she loved reading). She is doing a little bit of painting and maintenance around her home. She joined a netball team in April as she thought this would be a good thing to get her out of the house. Games are weekly. She pushes herself to go but often feels anxious. When she does go, she generally feels it is helpful. She misses about half of the games due to anxiety and lack of energy and motivation”
Dr Berry assessed a Class 2 for social and recreational activities providing the following reasons:
“Ms Gallagher plays netball weekly although attendance is erratic. She has attended a football game which she enjoyed. She went to one social function (a birthday party) but felt uncomfortable and left early. She no longer goes out for dinner with friends.”
The appellant referred to the decision of Ballas and, in particular, to the following paragraphs where Bell P and Payne JA said (Emmett JA concurring):
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94. Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.
95. In the present case, it was plainly ‘arguable’, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.
96. Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.
97.The aim of the Guidelines (which have been held to have the force or effect of delegated legislation: see Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]-[28]; Jenkins at [29]) would be subverted if the decision as to which scale to place certain conduct in for the purposes of assessing seriousness of impairment were left to the discretion of an AMS, as the Delegate indicated it could be. This would also have ramifications for the reviewability of decisions by an AMS. There is an important difference between a characterisation exercise and an exercise of discretion.”

The appellant submitted that the observations made by the Medical Assessor were inconsistent with a mild impairment (Class 2) and should be determined as constituting a moderate impairment (Class 3). The appellant argued that the Medical Assessor fell into error of a type identified in Ballas by essentially conflating the fact that the appellant “has a close family network and sees her sister and a brother 3 to 4 times a year…they swim in the home pool and have lunch, or take walks together and they have regular family functions” as being activities that affectively justify an assessment of only a “mild” impairment for social and recreational activities.
The Appeal Panel reviewed the evidence.
Dr Teoh assessed the appellant as Class 3 for social and recreational activities but provided no reasons for this classification apart from the appellant avoiding social contact. He did not provide details of any social or recreational activities in which the appellant did or did not engage to support his categorisation of the worker as class 3. Dr Berry assessed the appellant as Class 2 for social and recreational activities and provided substantial reasons including playing netball regularly although with some erratic attendance, attending a football match, going to a social function which she left early, and no longer going out to dinner with friends.
Reference was made by the appellant to the Medical Assessor taking into account the applicant going on a cruise in 2022. While the Medical Assessor did note that she went on a cruise but had to stay in her cabin because she had COVID-19, he did not refer to the cruise in the reasons he gave for his assessment of Class 2 in the scale of social and recreational activities and therefore this was not taken into account in the assessment The Appeal Panel noted that this cruise was some time ago in December 2022 and it has little relevance to the assessment of current impairment.
The social and recreational scales looks at the worker’s degree of participation in such activities. In this case, the appellant stopped going out for dinner with her husband and friends and reported having no contact or visits from friends except for text messages. Conversely she played netball over an entire season in 2023 and managed to attend about half of her matches. She attended a birthday party at the local surf club and said that was “OK”. She also attended a party for collegues and friends but left early. She went to a State of Origin match in Brisbane with her family, and said that she enjoyed it.
The Medical Assessor did refer to the appellant attending family functions where they have lunch, swim in the pool and go for walks. However, the Appeal Panel agree with the Medical Assessor that the conduct of such activities as eating, swimming and walking with her family are categorised as social and recreational activities as opposed to impairments in the relationships with such people that are categorised under social functioning. The scale of social functioning involves an assessment of the actual quality and duration of relationships with family members and friends, which is distinct from the social events and recreational activities undertaken with family members and friends. It is clear from the examples in the guidelines (table 11.2) that the involvement of friends, family and support persons in the conduct of social and recreational activities is to be included in the rating of impairment in this category.
However, if the Appeal Panel is wrong in including the activities with the appellant’s family in the scale of social and recreational activities, the result would be the same. Even if these social events with family were excluded from the reasons for a Class 2 assessment for social and recreational activities, the other activities described such as netball, attending her husband’s birthday party, attending another social event and going to a football match are activities that would fall within a Class 2 assessment.
The Appeal Panel is satisfied that the descriptors provided in Table 11.8 by the Medical Assessor are Class 2 descriptors. Therefore, the Appeal Panel is satisfied that the reasoning process for assessing the appellant as Class 2 in this category was able to be made out. The Appeal Panel agrees that the appellant should be rated as Class 2 for social and recreational activities.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS scale of social and recreational activities and that the assessment in this class was not made on the basis of incorrect criteria.
As noted above there is an error in relation to the calculation. The Appeal Panel finds that the PIRS scales score 1 2 2 2 3 5, ascending order 12 2 2 3 5, median 2, aggregate 15 so that the final WPI = 8%.
For these reasons, the Appeal Panel has determined that the MAC issued on
5 February 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:	W8918/23
Applicant:	Julie Gallagher
Respondent:	State of New South Wales (Northern NSW Local Health District)

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 Michael Hong 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)

1.Psycho-logical

27 January 2022 – Deemed

Page 55-60

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

[2024] NSWPICMP 273

6 May 2024