Green v Life Without Barriers

DETERMINATION OF APPEAL PANEL
CITATION:	Green v Life Without Barriers [2023] NSWPICMP 479
APPELLANT:	Elizabeth Green
RESPONDENT:	Life Without Barriers
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	27 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) correctly rated appellant’s impairment in social and recreational activities; whether MA provided adequate reasons for his rating of appellant’s impairment in social and recreational activities; Appeal Panel held when Medical Assessment Certificate (MAC) is read as whole, the MA adequately disclosed his reasons for his rating of the appellant’s impairment in social and recreational activities and it was open to him to make the rating he did; Held – MAC upheld

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 July 2023 Elizabeth Green, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 June 2023.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with Life Without Barriers, the respondent, on
1 July 2009. Due to events that occurred within her workplace from approximately
June 2015 to April 2017 she suffered a psychological injury.
Consultant psychiatrist Dr Richa Rastogi examined the appellant on 10 August 2022, at the request of the appellant’s solicitors, and in a report of that date advised the appellant’s solicitors that she assessed the appellant had 17% whole person impairment (WPI) resulting from her injury.
On 18 August 2022 the appellant’s solicitors wrote to the respondent advising it that the appellant claimed compensation from it in the amount of $40,120 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 17% WPI from her injury. The appellant’s solicitors enclosed with their letter a copy of Dr Rastogi’s report of 10 August 2022.
The respondent’s insurer had earlier organised for the appellant to be examined by consultant psychiatrist Dr Shannon Paisley. In a report of 16 February 2022, Dr Paisley advised the insurer that he assessed the appellant had 7% WPI from her injury. On
22 November 2022 the insurer wrote to the appellant, care of her solicitors, notifying her under s 78 of the 1998 Act that it disputed she was entitled to lump sum compensation for her injury of 1 December 2015. It advised the appellant that its reason was that “your accepted primary psychological injury has not resulted in at least 15% permanent impairment as required by s 65A(3) of the Workers Compensation Act 1987”. It reminded the appellant that Dr Paisley had assessed her in February 2022 to have 7% WPI from her injury. It advised her that because of the difference between Dr Rastogi’s assessment of her permanent impairment from her injury and Dr Paisley’s assessment, her “claim for lump sum needs to be determined by a Medical Assessor appointed by the PIC”. PIC is an obvious reference to the Personal Injury Commission (Commission).
Thereafter, the appellant instituted proceedings in the Commission by lodging with it an Application to Resolve a Dispute dated 3 March 2023 (the ARD). On 14 April 2023 a delegate of the President of the Commission referred the matter to the Medical Assessor to assess the medical dispute between the parties relating to the degree of permanent impairment of the appellant from her injury.
The Medical Assessor examined the appellant on 18 August 2022 and, as said, issued a MAC in response to the referral to him on 7 June 2023. In that, he certified that he assessed the degree of the appellant’s permanent impairment from her injury was 9% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment.

EVIDENCE

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

SUBMISSIONS

Both parties made written submissions, which have been considered by the Appeal Panel. Insofar as it is necessary for the Appeal Panel to explain its reasons, the submissions are paraphrased under findings and reasons.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The appellant’s appeal against the MAC relates to the Medical Assessor’s rating of her impairment in the psychological injury rating scale (PIRS) for social and recreational activities, in regard to which the Medical Assessor rated the appellant’s impairment as class 2, that is a mild impairment. In the PIRS rating form within the MAC the Medical assessor provided the following reasons for his rating:
“Ms Green has reduced her social activity since leaving work. She continues socialising comfortably and regularly with family and close friends. Her social activity revolves around her family, including her children, grandchildren and siblings. She has been less motivated for recreation, preferring to help family or engage in home-based activities like gardening. She walks regularly with old friends. She occasionally visits social venues with the family but has reduced social activities locally due to apprehension about running into people related to her former workplace.”
The Appeal Panel observes that the history the Medical Assessor obtained included that the appellant had active involvement prior to her injury with surf lifesaving clubs and with swimming and that she was outgoing, extraverted, sociable and involved in her community through the surf lifesaving club and disability activities.
The Medical Assessor recorded that the appellant had recently attended a wedding in Tamworth for a family friend at which 100 people attended and at which she was accompanied by one of her best friends, being the mother of the groom. The
Medical Assessor noted that prior to the appellant’s injury the appellant visited Lake Conjola where her daughter had a caravan. Her husband now only goes to Lake Conjola. The Medical Assessor also noted that the appellant and her husband have an investment property in Noosa where the appellant went for two days in January 2023. The
Medical Assessor noted that the appellant had not been overseas in the last two years. The Medical Assessor noted that the appellant rarely goes to Sydney because she finds it too overwhelming.
The Medical Assessor also recorded in the history he obtained that the appellant walks her dog most days at the beach. The Medical Assessor recorded that the appellant gardens although not as meticulously as before. The Medical Assessor recorded that the appellant eats out at a venue twice a year. The Medical Assessor noted that the appellant avoids socialising because she is reluctant to make the effort to get dressed and that the appellant declines invitations to socialise.
The Medical Assessor noted that the appellant is anxious around people and that before she suffered injury she went often to a club but has not gone since suffering injury. The
Medical Assessor noted the appellant has not been to concerts or live music and has not been to a show in years whereas prior to injury she used to enjoy going to a show and went often. The Medical Assessor noted that the appellant has not seen a movie since her injury.
The Medical Assessor noted that the appellant has her children at her house for dinner once a month and that she will go to her children’s houses for family celebrations and birthdays.
The Medical Assessor observed from the report of Dr Rastogi dated 10 August 2022 that
Dr Rastogi reported the appellant continued to socialise comfortably and regularly with her family and close friends and that her social activities revolve around her family. The
Medical Assessor noted that Dr Rastogi reported that the appellant is less motivated for recreation and prefers home-based activities such as gardening. The Medical Assessor recorded that Dr Rastogi reported that the appellant walks regularly with old friends.
The appellant submitted that the Medical Assessor did not provide adequate reasons for his rating of her impairment in social and recreational activities as class 2. The appellant submitted that the history the Medical Assessor obtained was of intermittent participation in family based activities involving a support person such as the mother of the groom at the wedding in Tamworth or her husband. The appellant observed that the Medical Assessor noted that she went out regularly for dinner beforehand but only does so twice a year now and no longer goes to the club, music concerts or movies or travels overseas. The appellant noted that in her statement, that was attached to the ARD, she said that she struggles to interact with people and that the only enjoyment she now obtains is spending time with her family. The appellant also noted she said in her statement that prior to her injury she was a very social person, and she regularly socialised in big groups but now does not do so. The appellant noted she said in her statement that she will not join a gym or go to a pilates class because the social aspect of that would be too hard.
The appellant submitted that a rating of class 2 in social and recreational activities is not appropriate in a circumstance where she has given up so many recreational activities and where she now engages in such activities with the support of her family or close friends.
The appellant noted that Dr Rastogi had assessed her impairment in social and recreational activities as class 3 and the appellant submitted that the Medical Assessor when comparing his assessment of her impairment in social and recreational activities with Dr Rastogi’s assessment focused “on matters related to social functioning with her family and close friends, a separate class rather than addressing the issues about recreational activities”.
The appellant submitted that the Medical Assessor ignored the history he obtained relating to how she engaged in social and recreational activities. She submitted how she engages in social and recreational activities now contrast to what she did before her injury in that she has stopped going to the club for recreation, stopped going to the movies, stopped going to concerts and shows and has not travelled overseas and now only goes out for dinner twice a year. The appellant submitted that the Medical Assessor did not take into account the history Dr Rastogi obtained, noting that Dr Rastogi said that she had become socially withdrawn and had given up her activities such as outings.
The appellant submitted that the Medical Assessor’s conclusion that she is less motivated for recreation is erroneous as it understates the nature of the evidence and the effects of her injury on her social and recreational activities.
The appellant submitted that the Medical Assessor ignored important features of the evidence about the effect of her injury on her ability to engage in recreational activities and that the reasons the Medical Assessor provided “do not permit the Medical Assessor’s path of reasoning to be understood”.
Insofar as the appellant submitted that the Medical Assessor, when assessing her impairment in social and recreational activities, focused on matters relating to “social functioning”, the Appeal Panel does not accept that to be the case.
A worker’s engagement in social activities will often be with those with whom they maintain social relations, that is members of their family and their friends. Further, a person’s engagement in recreational activities, insofar as such activities involve another, will often be done with those with whom the worker maintains social relations. The activity in which the worker engages, with others, must be assessed by the Medical Assessor within the PIRS category of social and recreational activities, whereas the quality of relationships with family and friends must be assessed by the Medical Assessor within the PIRS category of social functioning. So long as a Medical Assessor’s focus is on the social and recreational activities in which the worker is engaged when assessing the worker’s impairment in social and recreational activities and the Medical Assessor’s focus is on the worker’s relationship with family and friends when assessing the worker’s impairment in social functioning, then there is no error of the type identified in Ballas v Department of Education.[1]
[1] [2020] NSWCA 86 at [84]-[94].
In the Appeal Panel’s view the Medical Assessor when assessing the appellant’s impairment in social and recreational activities has, with respect to those activities that involve the appellant family, focused on the activity and not the relationship when assessing the appellant’s impairment. The Medical Assessor did not err by doing that.
The Appeal Panel notes that the descriptors provided in Table 11.2 for a class 2 impairment are:
“occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
The descriptors provided for a class 3 impairment are:
“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.”
The MAC must be read as a whole. When that is done the Appeal Panel notes that the activities in which the appellant now engages for social and recreational activities include going to dinner with her husband twice a year, walking her dog on the beach on most days, walking regularly with old friends, having coffee with her children several times a week, having dinner with her children once a month, attending family celebrations such as birthdays at her children’s houses. True it is, and as the Medical Assessor noted, the extent of the involvement of the appellant in social and recreational activities is substantially diminished from that which she enjoyed prior to her suffering injury. Nevertheless, the Appeal Panel considers that it was open to the Medical Assessor to assess the appellant’s impairment in social and recreational activities as class 2. In the Appeal Panel’s view there is no error in his evaluation of the material before him to assess the appellant’s impairment in this category as class 2. The appellant’s current engagement in social and recreational activities fit within the examples provided for class 2 in that she engages in social activities occasionally without the need of a support person, those activities are going to dinner (albeit infrequently), having coffee with another, walking her dog on the beach, walking with friends and participating in family celebrations.
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[2] The Appeal Panel considers that the Medical Assessor has adequately disclosed his reasons in the MAC, when the MAC is read as a whole, for assessing the appellant’s impairment in social and recreational activities as being class 2. It is apparent from his reasons why he assessed the appellant’s impairment as class 2.
[2] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 June 2023 should be confirmed.

[2023] NSWPICMP 479

27 September 2023