Hall v Secretary, Department of Communities and Justice

[2023] NSWPICMP 348

DETERMINATION OF APPEAL PANEL
CITATION:	Hall v Secretary, Department of Communities and Justice [2023] NSWPICMP 348
APPELLANT:	Natalie Hall
RESPONDENT:	Secretary, Department of Communities and Justice
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	24 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor (MA) correctly rated appellant’s impairment in psychiatric impairment rating scale (PIRS) category of social and recreational activities; Appeal Panel found that based on the evidence before the MA the MA’s rating was not open to be made and represented an error of clinical judgement by the MA; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 3 May 2023 Natalie Hall, the appellant, 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 5 April 2023.

2. The appellant relies on the following grounds of 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.

3. 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.

4. 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.

5. 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

1. The appellant suffered a psychological injury due to events to which she was exposed in the period to 6 May 2020 in her employment with the Department of Communities and Justice, the respondent.  She claimed weekly payments of compensation for an incapacity for work resulting from her injury and compensation for permanent impairment. 

2. By notice dated 5 May 2020 that the respondent’s insurer issued the appellant under s 78 of the 1998 Act, the insurer denied liability to pay the appellant the compensation she claimed. The insurer advised the appellant its reason for its denial was that her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline or dismissal. The insurer further advised that, in the alternative, the respondent was not liable to pay compensation to her for permanent impairment because her permanent impairment from her injury was less than 15%, which under s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act) her permanent impairment had to exceed for her to be entitled to compensation for permanent impairment under s 66 of the Act.

3. The appellant then filed an Application to Resolve a Dispute in the Commission dated
   17 August 2022 seeking determination by the Commission of her claims for compensation.  The matter was referred to Member Ms Jane Peacock who, on 10 November 2022, remitted the matter, with the consent of the parties, to the President of the Commission so that it could be referred to a Medical Assessor to assess the medical dispute between the parties relating to the degree of permanent impairment the appellant has from her injury on 6 May 2020.  In a Certificate of Determination that the Commission issued on 10 November 2022, it was recorded that the Member had noted that the respondent “no longer presses this section 11A defence”.

4. On 9 December 2022 a delegate of the President duly referred the medical dispute to the Medical Assessor.  The Medical Assessor examined the appellant on 15 March 2022 and, as noted, issued a MAC in response to that referral on 5 April 2023.  In that the Medical Assessor certified that the appellant’s degree of permanent impairment resulting from her injury was 9% WPI.

5. The appellant’s appeal relates to the Medical Assessor’s rating of her impairment in the psychiatric impairment rating scale (PIRS) category of Social and Recreation Activities, in regards to which the Medical Assessor rated her impairment as mild. 

6. Relevant to that assessment, the Medical Assessor noted that the appellant, prior to her injury, was a very social person and enjoyed going out with her children, reading, engaging in sporting activities, walking, swimming, gardening, going to the gym, restaurants and social outings.  The Medical Assessor noted that, subsequent to the appellant’s injury, the appellant reported feeling lonely and ostracised and not feeling like going out.  The Medical Assessor noted that the appellant reported attending a birthday approximately six months before the assessment and experienced an intense panic attack.  The Medical Assessor noted that the appellant now only goes out “if she has to” and that the appellant fears running into people she knows.  The Medical Assessor recorded that the appellant no longer does activities she did before her injury.  The Medical Assessor noted that the appellant saw her “mum’s best friend about a month back”. 

7. The reasons the Medical Assessor included a PIRS rating form with the MAC, in which she explained her ratings of the appellant’s impairment for the various PIRS categories.  She rated the appellant’s impairment in the category of Social and Recreational Activities as mild and provided this explanation for her rating:

   “She saw her Mum’s best friend about a month back.  She used to enjoy going out with children, walking, swimming, going to the gym, gardening, reading and socialising and going to restaurants.  She hasn’t been doing any of these activities anymore.”

PRELIMINARY REVIEW

1. 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.

2. 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 the material before the Appeal Panel is sufficient to enable the Appeal Panel to determine the appeal.

EVIDENCE

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that the history the Medical Assessor obtained included that there had been a considerable change in her life with respect to her social and recreation activities such that the Medical Assessor ought to have assessed her as having at least a moderate impairment in that element of her functioning.  The appellant submitted that the examples provided within Table 11.2 of the Guidelines supported a rating of her having a moderate impairment in social and recreational activities.  The appellant noted that both the psychiatrist whom her solicitors had qualified to provide a medical forensic report, namely
   Dr Richa Rastogi, and the psychiatrist whom the respondent qualified to provide a medical legal report, namely Dr Ashwinder Anand, both rated her impairment in the category of Social and Recreational Activities as moderate. 

3. In reply, the respondent submitted that it was open to the Medical Assessor to use her skill, judgment and expertise to form the conclusion she did.  The respondent referred to authority that a demonstrable error needs to be more than a difference of opinion on which reasonable minds might differ.  The respondent referred to authority that the Medical Assessor is entitled to give pre-eminence to his or her clinical observations when assessing the permanent impairment of a worker.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s328 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. In accordance with clauses 11.11 and 11.12 of the Guidelines an assessment of a worker’s impairment resulting from a psychiatric injury is done by reference to the effect the worker’s injury has in six categories of activity and function. Together these comprise the PIRS. A Medical Assessor must classify a worker’s impairment in each category along a scale ranging from no impairment to total impairment. A Medical Assessor is required to allocate a score for each category with 1 being no impairment through to 5 which is total impairment.

4. Clause 11.12 of the Guidelines includes a table for each PIRS category in which examples are provided of how a worker’s injury might affect a worker’s capacity in the category to which the table relates.  Clause 11.12 stipulates that “the examples of activities are examples only”. Hence, the examples are intended to provide guidance or assistance to a Medical Assessor when rating a worker’s impairment in the relevant category, and are not prescriptive. What is important is whether the worker has no, mild, moderate, severe or total impairment in the particular activity or function.[1] 

   [1] Jenkins v Ambulance Service of NSW[2015] NSWSC 633 (Jenkins) at [65].

5. As the respondent submitted, a Medical Assessor is entitled to give pre-eminence to his or her clinical observations when rating a worker’s impairment, and a mere difference of opinion on a matter on which reasonable minds might differ, such as how a Medical Assessor has rated the worker’s impairment in the various PIRS categories, is not sufficient to establish an error on the part of the Medical Assessor.[2]  What is required to establish error is that the Medical Assessor has wrongly exercised his or her clinical judgement.  That is, on the evidence available to the Medical Assessor it was not open to the Medical Assessor to the Medical Assessor to make the rating that she or he did. 

   [2] Ferguson v State of NSW [2017] NSWSC 887 at [23] at [135]

6. The examples for a Class 2 and Class 3 impairment provided in Table 11.2 of the Guidelines, which relates to the PIRS category of social and recreational activities, are:

Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg 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.

1. The Appeal Panel considers that it was not open to the Medical Assessor to rate the appellant’s impairment in the category of Social and Recreational Activities as mild based on the evidence before the Medical Assessor.  In other words, the Medical Assessor’s rating, based on that evidence, represents an error of the Medical Assessor’s clinical judgment.  The Appeal Panel observes that prior to the appellant suffering injury she was a social person and enjoyed engaging in sporting activities and gardening and enjoying social outings, going out with her children, walking, swimming, going to the gym and going to restaurants.  She no longer does these as a consequence of her injury.  That is more than a mild impairment in her functioning in social and recreational activities.  That does not accord with any of the examples provided within Table 11.2 for a mild impairment.  Rather, it accords better with the examples provided for a Class 3 impairment.  The evidence indicates that the only recent social or recreational activity in which the appellant engaged was visiting her mother’s best friend.  That is a rare and limited event, with a close family friend, and does not detract from the fact that the appellant is now not engaging in social and recreational activities near to the extent to which she did prior to her injury.

2. Given the error in the MAC, the Appeal Panel must revoke the MAC and re-assess the medical dispute so as to correct the error.  Based on the available evidence, which indicates that the appellant rarely goes out and is not engaging in any significant social or recreational activities, the Appeal Panel rates her impairment as moderate that is Class 3.

3. There was no challenge to the Medical Assessor’s rating of the appellant’s impairment in the other PIRS categories.  The medium of the scores for those other categories and the score the Appeal Panel has rated the appellant’s impairment in Social and Recreational Activities is 3.  The aggregate of scores is 17, with a median class of 3 and consequently, in accordance with Table 11.7 of the Guidelines, the appellant has 19% WPI from her injury.

4. For these reasons, the Appeal Panel has determined that the MAC issued on 5 April 2023 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

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5359/22
Applicant:	Natalie Hall
Respondent:	Secretary, Department of Communities and Justice

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 Surabhi 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 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)
Psychological	06/05/2020	Chapt 11	19%	-	19%
Total % WPI (the Combined Table values of all sub-totals)					19%

Parker v Select Civil Pty Ltd [2019] NSWSC 140 at [66]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [136]