Kelly v Sunnyfield
[2024] NSWPICMP 501
•25 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kelly v Sunnyfield [2024] NSWPICMP 501 |
| APPELLANT: | Tamara Kelly |
| RESPONDENT: | Sunnyfield |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 25 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against whole person impairment finding of 7% for psychological injury; whether Medical Assessor (MA) had erred in the classification of self-care and personal hygiene, social and recreational activities and social functioning; Medical Assessment Certificate (MAC) was issued eight months prior to the appeal; the MA had issued a MAC saying no maximum medical improvement some six months before then; most of the medical evidence was issued in 2022; Held – MA’s reasons inadequate and re-examination directed; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 November 2023 the appellant, Tamara Kelly 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 30 October 2023.
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 MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 1 August 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by a psychological/psychiatric disorder which occurred on a deemed date of 7 June 2022.
Ms Kelly, who was born in 1990, was employed as a Senior Support Worker. She was unsupported over an incident concerning the family of a patient who had passed away in May of 2021. She lodged a workers compensation claim on 3 September 2021 and on 30 September 2021 she was advised that the allegations against her had been cleared.
Attempts to return her to work were disorganised and she left work in February 2022 feeling bullied, belittled and unsupported.
Ms Kelly was first assessed by the Medical Assessor on 27 March 2023, when the Medical Assessor certified that maximum medical improvement had not then been reached. The Medical Assessor said:[1]
“The stabilisation of symptoms is deemed to have occurred once she has received optimal management for her symptoms. I believe that she has not received optimal medication management as yet. She has only been trialled on Sertraline 100mg as yet. she [sic)] has neither been offered an increase in the dose of Sertraline nor has she trialled any other antidepressant.”
[1] Appeal papers page 438.
In a report of 13 June 2023 Dr Ben Teoh, Ms Kelly’s qualified expert, stated “It is my opinion that she has reached maximum medical improvement because she had tried antidepressant medication. It is unlikely that antidepressant medication will lead to significant improvement.” Dr Teoh said that it was unlikely that antidepressant medication led to significant improvement, “given the psychological issues involved.”[2]
[2] Appeal papers page 449.
On 28 July 2023 an application to restore the matter was made by consent and a referral dated 1 August 2023 thereafter issued.
The Medical Assessor certified a WPI of 7%.
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.
The appellant sought to be re-examined by a member of the Appeal Panel and, as we were not satisfied that the Medical Assessor had given adequate reasons for her determination, a re-examination was arranged.
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.
Further medical examination
Dr Doug Andrews of the Appeal Panel conducted an examination of the worker on 26 June 2024 and reported to the Appeal Panel.
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 which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
THE MAC
The Medical Assessor repeated the history that she had taken in her earlier MAC of 27 March 2023. She noted that Ms Kelly did not wish to continue with medications and that she was getting no benefit from them.
In discussing Ms Kelly’s activities of daily living she took a history that Ms Kelly showered about once a week, that her room was never clean although she at times cleaned the common areas. Ms Kelly was mostly eating takeaways or making quick meals like noodles the Medical Assessor recorded.[3]
[3] Appeal papers page 28.
Prior to the injury Ms Kelly had an active social life. The Medical Assessor recorded that Ms Kelly used to go to gym six or seven times a week, went out with family and friends, travelled and often saw her friend in Wollongong.
The Medical Assessor noted that the last time Ms Kelly went to the gym was about four weeks earlier. A history was taken that Ms Kelly would go out once a week to Coles to buy her groceries. She lost some friendships but still had a good relationship with her Wollongong friend to whom she would speak once or twice a week.
The Medical Assessor noted that Ms Kelly had moved to the Central Coast at the time of her suspension and “does not know how many people she can talk to.”
The Medical Assessor said:[4]
“She reported that she has been single for six years now. She has lost some of her friendships, but she has a best friend in Wollongong, and since she lives on the Central Coast, she is not able to go and visit her friend as frequently. She denied meeting up with her family members on a regular basis as ‘they have got their own family’ and she does not like talking to them about her mental health. She sees her parents every four to five months.
…
Her usual day involves ‘mindlessly’ scrolling on her phone. She said that she attends her appointments at times. Ms Kelly added that because her sleep fluctuates, she at times gets up at night or at varying times during the day. She watches TV in her bed and goes to the shops to buy food. She said that she is financially scraping by and is managing to pay the mortgage with the help of the rent from her housemates.”
[4] Appeal papers page 28.
The Medical Assessor noted the desktop investigation of 6 September 2022. She said:
“… The report shows evidence of Ms Kelly operating her own clothing business in partnership and being highly active on social media.”
At [7] of the MAC, the Medical Assessor summarised Ms Kelly’s case, saying:
“Ms Kelly is a young Caucasian female who presented with symptoms and low mood, lack of interest in activities, being socially avoidant, fatigue, sleep disturbances, and fluctuations in her appetite. This seems to emanate from the alleged history of being bullied at work….”
The Medical Assessor answered the templated request for brief comments at [10c] of the MAC by giving a detailed commentary, the relevance of which was sometimes difficult to ascertain. The Medical Assessor described a record in the clinical notes of Dr Thomas Tran dated 10 June 2020 about a personal matter did not seem to be related to Ms Kelly’s injury. The Medical Assessor also noted a reference in the clinical notes of Dr Jeremy Choy dated 28 September 2021 which related to the thyroid condition of Ms Kelly and her mother. A further entry on the same subject was noted in Dr Choy’s notes of 8 October 2022.
In considering the opinion of Dr Ben Teoh, Ms Kelly’s qualified expert, the Medical Assessor said:
“I have noted that Dr Ben Teoh on 13 June 2023 opined that she has reached maximum medical improvement and her presentation was consistent with the diagnosis of major depressive disorder. I have noted that he calculated WPI as 15% during his IME dated 10 May 2022. I respectfully disagree with the assessment in the following areas:
1. Self-care: Ms Kelly reported impairment in her self-care and hygiene. She was unkempt during the interview as well, which warrants mild impairment.
2. Social and recreational activities: Ms Kelly reported that she used to go the gym six to seven times a week, used to go out with her friends and family. She continues to go to the gym occasionally and the last time she went there was four weeks back. She is able to go out once every week to Coles to buy groceries. She has lost some friendships as she moved to the Central Coast and most of her friends live elsewhere. I believe this warrants mild impairment rather than moderate.
3. Social functioning: Dr Teoh has marked her social functioning as moderate impairment, stating that ‘she admitted that she has been irritable and argumentative.’ I agree that she has lost some of her friendships, but that can also be attributed to her moving to a new location. She is still able to maintain friendship with her friend who lives in Wollongong and talks to her frequently. There was no evidence of any domestic violence or any separation.
4. Concentration, persistence, and pace: Dr Teoh reported being preoccupied with negative thoughts and worrying about the future. During the interview, Ms Kelly was able to focus and was able to answer the questions asked and was able to narrate the incidents very well.”
SUBMISSIONS
The appellant
The submissions were prepared by Mr James McEnaney of counsel. The appeal was against the class ratings assessed by the Medical Assessor in the Psychiatric Impairment Rating Scale (PIRS) categories of:
(a) self-care and personal hygiene;
(b) social and recreational activities, and
(c) social functioning.
Self-care and personal hygiene
The appellant traversed the findings by the Medical Assessor and submitted that the facts of Ms Kelly’s injury had caused her to be moderately impaired in this category. She did not shower regularly anymore, neither did she brush her teeth or her hair regularly, nor did she dress in nice or clean clothing. She ate takeaways or quick meals such as noodles.
It was submitted that Ms Kelly’s situation was “a case of genuine physical isolation in the Central Coast” as she was not supported by a family member.
Ms Kelly presented in an unkempt manner to all the assessors that she saw, Mr McEnaney noted. We were referred to evidence as to Ms Kelly’s lifestyle prior to her injury and Mr McEnaney submitted that the facts as found by the Medical Assessor were more appropriate to a class 3, moderate, rating.
Social and recreational activities
Mr McEnaney submitted that it was relevant to consider Ms Kelly’s activities prior to her injury and contrast them with her present situation. She had previously been attending the gym up to 12 times per week, visiting friends, going up breakfast and dining at restaurants. In contrast, Mr McEnaney said, she now barely leaves the house because of her psychological condition.
Mr McEnaney submitted that the Medical Assessor’s findings of fact were incorrect in a number of respects. The Medical Assessors statement that Ms Kelly still maintained a good relationship with her Wollongong friend to whom she would speak once or twice a week, was not supported by Ms Kelly’s statement, which was relevantly extracted, and it was submitted that the Medical Assessor had made a “subtle but erroneous gloss” on the nature of the relationship.
Similarly, Mr McEnaney argued that the Medical Assessor had placed undue weight on the fact of Ms Kelly’s move to the Central Coast as he attributed some of her deficits in this category to that change of residence.
Social functioning
It was submitted that the finding by the Medical Assessor that Ms Kelly had lost “some of her friendships” was a gross understatement. She had in fact lost all of her friends except for “Danielle” who, out of concern for her, forced Ms Kelly to continue their communication.
The Medical Assessor had also put a gloss on Ms Kelly’s statement that she tried to keep in contact with her family, Mr McEnaney argued. He again referred to Ms Kelly’s statement that she barely stayed in contact with family because of her “reduced state.”
Ms Kelly was, pre-injury, a young energetic social person who has become socially reclusive and had no contact with anyone but her friend and her family, Mr McEnaney submitted. The facts regarding her social functioning were appropriate to a class 3 rating, and not the class 2 rating that had been assessed.
We were kindly advised as to what Ms Kelly’s entitlement would be if we acceded to McEnaney’s submissions.
The respondent
The respondent noted that Ms Kelly alleged error on behalf of the Medical Assessor because he had not compared her post injury condition to how it had been before she suffered her injury.
The respondent submitted that in fact the Medical Assessor had taken an extensive history of injury and had carefully considered the material before reaching her conclusion.
We were referred to the explanation given by the Medical Assessor for her findings and why she disagreed with the opinion of Dr Teoh, the medico-legal expert retained by Ms Kelly
The Medical Assessor also explained the difference between her findings and that of Dr Chowdary, the respondent’s qualified expert, it was argued.
The respondent noted that the finding by the Medical Assessor that Ms Kelly did not socialise a lot and did not go on holidays before the incident was evidence that the Medical Assessor had taken a proper history of her pre and post function.
It was submitted that the appellant was simply seeking to cavil with the findings of the Medical Assessor.
We were referred to Marina Pitsonis v Registrar Workers Compensation Commission,[5] Mahenthirarasa v State Rail Authority of New South Wales and Ors[6] and The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard.[7]
[5] [2008] NSWCA 88.
[6] [2007] NSWSC 22.
[7] [2016] NSWSC 911.
The respondent submitted that the appellant was “attacking the integrity of the history obtained at the examination”.
The respondent submitted that the Medical Assessor was an experienced assessor, having conducted numerous psychiatric medical examinations with special application to the PIRS, and accordingly her assessment should be preferred as it related to the history relied on.
Self care and personal hygiene
No error had been demonstrated in this category it was submitted. We were referred to Dr Chowdary’s comments that Ms Kelly was independent in terms of her self-care, as she lived by herself and managed her own accommodation.
We were also referred to a Desktop Investigation which showed the appellant dressed in “nice clean clothes, advertising her business”.
The respondent submitted that the reasons given by the Medical Assessor were appropriate to a class 2 rating.
Social and recreational activities
The respondent submitted that Ms Kelly had not provided evidence that contradicted the findings of the Medical Assessor that some of her deficits were due to the change in residence. Moreover, at the first assessment on 27 March 2023, the Medical Assessor recorded that Ms Kelly did not socialise a lot even before the incident.
We were referred to the relationship with Ms Kelly’s Wollongong friend as an example of her social interaction. Although Ms Kelly submitted that the Medical Assessor had put a gloss on the evidence, the respondent submitted that no evidence had been provided to support that assertion.
The respondent kindly reproduced the descriptors for class 2 and class 3 in this category. The respondent noted the Medical Assessor’s history that Ms Kelly went to Coles to buy groceries and that she had been to the gym about four weeks before.
Moreover, the Desktop investigation, it was submitted, showed pictures of Ms Kelly at the gym alone and it was also noted that there was a TikTok video which appeared to show that Ms Kelly was involved in a recreational activity of renovating her place.
No error had been shown in this category either it was submitted.
Social functioning
As to the submission that the Medical Assessor had “glossed over” Ms Kelly’s account, it was submitted that Ms Kelly was “attacking the integrity of the history obtained at the examination”. Again, it was submitted that the Medical Assessor was an experienced assessor and that her assessment should be preferred.
It was submitted that the conclusions reached by the Medical Assessor were preferrable and were supported by the history recorded including those histories noted by other doctors.
We were referred to a relevant authority which is discussed below.
DISCUSSION
The PIRS
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[8] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[8] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[9]
[9] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[10] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[11]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[10] [2017] NSWSC 887.
[11] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[12] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[12] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[13] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[13] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
The appellant submitted that the Medical Assessor had erred in her reasoning in relation to the three impugned categories of the PIRS.
Self-care and personal hygiene
The relevant descriptors for this category are at Table 11.1 of the Guides:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population
Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor gave her reasons for assessing a class 2 rating in her Table 11.8 PIRS Rating Form:
“Ms Kelly reported that her self-care is ‘minimal.’ She showers once or twice a week. She said that her room is ‘never clean and she doesn’t care.’ She, at times, cleans of the common areas but is not bothered to keep her room neat and tidy. She said that she mostly gets takeaways or relies on making quick meals like noodles.”
The submission by Mr McEnaney that Ms Kelly did not dress in nice or clean clothing relate to Ms Kelly’s statement of 30 November 2022, where she said:[14]
“26. Prior to my psychological injuries, I was always diligent with my self-care routines. This would feature me washing my hair regularly, and getting my hair done. Additionally, I would always wear clean clothes daily. Furthermore, I would take pride in my appearance and enjoyed experimenting with makeup. I also kept my living premises very clean and organised.
27. Since my injury, I now lack the motivation and am no longer bothered to maintain my appearance. I now only brush my hair once a week, and also brush my teeth less frequently. I am no longer motivated to eat healthily, engage in meal preparation or cooking activities. I often sit at home, and feel no motivation to get out of bed. I no longer feel the need to make an attempt to look pretty, as I am often isolating myself at home. I usually remain in a jumper or tracksuit. I continuously experience flashbacks of the workplace conditions I suffered. My room is now always a mess, and I lack the motivation to keep anything clean.”
[14] Appeal papers page 82 from [26].
Mr McEnaney submitted that the contrast between Ms Kelly’s pre and post-injury self-care, bearing in mind that she was “an otherwise healthy and fit young person” was such as to warrant a class 3 rating. He submitted that although the evidence did not show that she had the assistance of a family member, her circumstances were such that it could readily be inferred that, within the terminology of class 3, we understood the submission, Ms Kelly’s standard of self-care and personal hygiene was such that a family member or community nurse should visit to ensure a minimum level of hygiene and nutrition. Mr McEnaney noted that Ms Kelly did not prepare own meals, and did not shower daily.
Whilst the respondent relied on the opinion of Dr Chowdary and a photograph of Ms Kelly contained in the desktop investigation that showed her wearing clean clothes, these matters were not mentioned by the Medical Assessor.
The Panel considered that the Medical Assessor did not consider relevant information, and that her recorded history were insufficiently clear, which resulted in her not giving adequate reasons for the classification she gave.
Social and recreational activities
Table 11.2 of the Guides provides the following descriptors:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2: Mild impairment. Occasionally goes to such events e.g., without needing a support person, but does not become actively involved.
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.”
The Medical Assessor gave the following reasons for her class 2 rating:
“Ms Kelly used to go out to the gym six or seven times a week, used to go out with family and friends and travelled, she often saw her friend in Wollongong. She said that she used to be a very active ‘social human being.’ She said that she went to the gym for a while and the last she went to the gym was about four weeks back. She said that she goes out once a week to Coles to buy groceries. She has lost some friendships. She still maintains good relationship with her friend in Wollongong and talks to her once or twice a week. She said that she moved to the Central Coast at the time of suspension and does not know a lot of people whom she can talk to.”
The Appeal Panel had some reservations about these reasons. In both this category and that of social functioning, as will be seen, the Medical Assessor regarded the move to the Central Coast as being a fact that explained at least in part the impairments from which Ms Kelly was suffering. When she made her statement of 30 November 2022 Ms Kelly had moved to the Central Coast, as she was unable to return to her pre-injury duties at Sunnyfield. Although the Medical Assessor referred to Ms Kelly’s recreational activities specifically as her going to the gym, Ms Kelly’s statement indicates that since her injuries she has been attempting to become involved in other recreational and commercial activities, but has been unable to continue any of them because of her psychological condition. Ms Kelly’s statement of 30 November 2022 was concerned with the report from ProCare investigations dated 6 September 2022 and the desktop investigation that had been carried out.
The desktop investigation showed that Ms Kelly had been involved in a podcast entitled “Da T Talk.” ProCare’s report noted that there had been 25 episodes from 5 April 2022 to 20 July 2022 of which three appeared to be of relevance, where Ms Kelly and her co-host, Dannielle (whose name was also spelt in the papers as “Danielle”), were talking about their business, entitled CA.KE.[15] In her statement of 30 November 2022, Ms Kelly said:[16]
“Due to my ongoing psychological symptoms… I now have difficulty communicating with family and friends. As a result, I have lost a lot of friends. This reality is extremely devastating, as I have always been known as the friendliest, bubbliest and most sociable person. My one friend that I have remained in contact with, Danielle, started a podcast named ‘DaT Talk.’ Danielle was trying to help me, by getting me to speak and do something again, as I was sitting at home all day every day due to my psychological symptoms. We would record the pod casts from a home environment, so I would not be required to leave the house.
11. With respect to the running of the podcasts, Danielle conducted the recordings, performed all of the editing, and released the episodes for the podcast. All that I was required to do, was sit on the computer and try to speak. There were days that were worse than others when we tried to record, where I was experiencing a flareup of symptoms and was unable to record the podcast. The recording times were never set in stone, and always at infrequent times, whether that be 9.00 am or 10.00pm. If we tried to record and I was experiencing a flare up of symptoms, we were required to delay the recording. Danielle would constantly prompt me to set up a time, and I almost felt forced to continue. I can confirm that I was never earning any income from the podcast.
12. However, I was unable to continue recording the podcast due to a flare up of depressive symptoms and anxiousness. As a result, we have not uploaded a podcast in months.”
[15] Appeal papers from page 378.
[16] Appeal papers page 79 from [10].
Ms Kelly also indicated that she had attempted to open a clothing business which she said was an enterprise also instigated by her friend Danielle. Ms Kelly said from [14] of her same statement:
“…[Danielle] wanted to start something with me, as she observed that I was traumatised by the workplace conditions I endured. I could not see myself returning to employment with managers, as I continued to experience flashbacks and intrusive thoughts…”
Ms Kelly also referred to her activities and her gym work. At [17] she referred to a photograph taken of her being congratulated on her attendance at the Anytime Fitness gym.[17] Ms Kelly said:
“18. Being unable to return to the gym due to my psychological symptoms… Was extremely difficult for me to come to terms with. I had previously regularly attended the gym, and felt motivated to attend and loving and accepting of my body. Returning to the gym was one of the hardest things I have ever had to go through. I worked so hard with my psychologist to be able to go back to the gym.
19. …. I was forcing myself to go to the gym often. I was using a Personal Trainer, who kept me accountable. I was often experiencing severe flareups of symptoms at the gym, and would return home feeling mentally exhausted and extremely anxious…. I have always been very transparent to the insurer, that I was trying to go to the gym, to try to force myself to get out of the house. However, due to a flareup of psychological symptoms and are due to the stress or is associated with communications with the insurer, I am now only able to get to the gym once per week. My personal trainer holds me accountable for this.”
[17] The photograph appears at appeal papers page 408.
The Appeal Panel was curious that the Medical Assessor did not traverse this evidence when considering the extent that Ms Kelly’s psychiatric disorder had impacted her social and recreational activities. Unusually, Ms Kelly had attempted to engage in the above social and recreational activities following her psychological injury and, at the date she made her statement, 30 November 2022, had said that they were not being pursued because she found she was unable to continue with them because of her symptoms. These matters could have been significant, and were not associated with Ms Kelly’s move to the Central Coast. They certainly involved the prompting by a close friend (Danielle) to involve herself in these events and accordingly raise a question whether a class 3 rating would have been more appropriate.
Accordingly the Appeal Panel again concluded that the reasons given by the Medical Assessor were not adequate to explain the class 2 rating she gave.
Social functioning
As indicated, the Appeal Panel had similar reservations as to the reasons given by the Medical Assessor in this category.
The relevant classes are contained in Table 11.4 of the Guides:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The reasons given by the Medical Assessor for her class 2 rating were:
“She reported that she has been single for six years now. She has lost some of her friendships but she has a best friend in Wollongong and since she lives in the Central Coast, she is not able to go and visit her friend as frequently. Denied meeting up with her family members on a regular basis as ‘they have got their own family’ and she does not like talking to them about her mental health. She sees her parents every 4 to 5 months.”
Again, the Medical Assessor has attributed some of Ms Kelly’s changed behaviour to her move to the Central Coast. Whilst the Medical Assessor said that the separation from Danielle was due to her relocation, we do not read Ms Kelly’s statement of 30 November 2022 as being consistent with that fact. It would appear that Ms Kelly’s relationship with Danielle was conducted online so far as her activities described in the desktop investigation at least were concerned, as we have outlined above.
Each case depends on its own facts, and a relevant fact in this case is that Ms Kelly is a young woman who had been travelling abroad for two years prior to starting work with the respondent. She is single, and from her post injury attempts to find recreational and other activities as described in the desktop investigation, motivated to find ways to improve her psychological state. Whilst the descriptors for a class 3 rating speak of “previously established relationships severely strained,” a person at Ms Kelly’s stage of life would not necessarily have formed such a relationship. The more significant relationship relates to her family and her friends. In that regard we refer to what Ms Kelly said in her statement of 30 November 2022, above at [83].
It can be seen that Ms Kelly’s friendship with Danielle is the only one that has lasted, whilst Ms Kelly has lost a lot of her friends, with the above-described result. The Appeal Panel noted an inconsistency in the reasons of the Medical Assessor, where she noted the loss of some of Ms Kelly’s friendships, but in the history she took for her MAC of 27 March 2023, she recorded:[18]
“…She was single at the time of the incident but had friends before the incident. She started avoiding them and didn’t meet them. She hardly went out and stopped socialising with friends. She used to go to the gym twice a day which she stopped completely. She didn’t socialise a lot even before the incident and would see them only occasionally….”
[18] Appeal papers page 434.
A further matter of concern for the Appeal Panel regarding the reasons generally was that a lot of the material before the Medical Assessor when she issued the MAC on 30 October 2023 was somewhat dated. The history the Medical Assessor relied on was taken from her earlier MAC of 27 March 2023, when she found maximum medical improvement had not been reached. Ms Kelly’s statement was dated 30 November 2022 (her later supplementary statement of 28 April 2023 did not contribute to her case save to say at [8] that her condition had “plateaued”) and the medical opinion before her was mostly dated from 2022. It was not clear from the MAC, as we have said, as to how Ms Kelly was now progressing.
The Medical Assessor, whilst providing a compendious MAC, failed, with respect, to articulate her reasons to the standard required. We have referred to Vegan at the outset of these reasons and note that the obligation to give reasons depends on the circumstances of the case, and they need not be extensive or provide a detailed explanation of the criteria applied by medical professionals in reaching a professional judgement. However, they must be adequate to explain the Medical Assessor’s path of reasoning, as was stated by the High Court in Wingfoot.[19] We were left with enough doubts as to the adequacy of the Medical Assessor’s reasoning to find that they constituted a demonstrable error.
[19] Wingfoot Australian Partners Pty Ltd v Kocak [2013] HCA 43 @ [48].
Accordingly, Ms Kelly was re-examined by Dr Douglas Andrews on 26 June 2024. Dr Andrews’ report follows:
1. The worker's medical history, where it differs from previous records There have been no major changes for Ms Kelly since the last assessment, Dr Surabhi Verma's, on 30 October 2023. The history of the injury was accurate. Ms Kelly lives on the Central Coast in a townhouse with two flatmates. She owns the townhouse, and having flatmates helps her pay her mortgage. She shares this with two men who have not been her friends. She initially left Sydney because she could not afford to live there. She started working with Sunnyfield in early 2019 and continued until May 2021. In 2022, she briefly involved herself in a business called CA.KE with a friend, Danielle Campbell. The business was an online clothing sales venture. Her friend encouraged Ms Kelly’s involvement and set the business up. Ms Kelly felt unable to contribute adequately, and the business has not been active since 2022. She attended a gym in 2022 and posted shots of herself working out on social media. She isolated herself further and felt unable to continue. An exercise physiologist supported her, but she lost motivation and has not been to a gym in 2024. She also fostered dogs during that year. While others paid to care for the dogs, she received no remuneration. Essentially, she looked after the dogs as if they were her own. Ms Kelly has no history of mental illness before the nominated work injury. She initially went off work with a fractured ankle in May 2021 and developed a psychiatric condition because of her treatment by the workplace and unsubstantiated allegations made against her. She saw her general practitioner for her mental health for the first time in September 2021. 2. Additional history since the original Medical Assessment Certificate was performed Treatment: Ms Kelly is cared for by her general practitioner, Dr Stephen Green, and a psychologist, Ms Tamara Bell. She has seen a psychiatrist, Dr Sharon Hodgson, on one occasion only. She had wanted to continue, but the insurer did not support this. In 2022, she had a three-month trial of sertraline but was unable to tolerate the drug. She had impaired sleep and appetite and discontinued it. She has had no medication since then. She sees her psychologist every 1 to 2 weeks. According to Ms Kelly, the psychologist works in a CBT framework, with activities structuring and supportive psychotherapy. Ms Kelly’s condition has not improved since commencing treatment. She is not on any treatment that, if withdrawn, could lead to deterioration. Her condition is stable and entrenched. It will not change significantly over the next 12 months, with or without further medical treatment. General health: Ms Kelly takes thyroxine sodium 100 µg daily because of hypothyroidism secondary to Hashimoto’s thyroiditis. She does not smoke cigarettes, drink alcohol or take illicit substances. Her weight has fluctuated. At the time of her injury, she weighed 92 kg. Her weight increased to 125 kg but has since reduced to 97 kg. At 165 cm, her BMI is 35.6, in the obese range. Current symptoms: Ms Kelly’s symptoms have fluctuated over time. She becomes very distressed when required to attend independent medical assessments and tends to plateau between these. There has been a trend of deterioration or no improvement. Her mood is ‘up-and-down’, without diurnal variation and reactive to circumstances. She has anhedonia. She has reduced energy and motivation to be active. She has prominent anxiety with a tendency to ‘overthink.’ She is easily stressed, sometimes irritable and prone to anger. She has subjective problems with concentration, attention and memory. She has times when she feels that she ‘doesn’t want to be here’ but has no active plans or intent towards suicide. She goes to bed between 7:30 AM and 9:30 PM but has severe initial and middle insomnia. She has early morning wakening, often between 3:30 AM and 5 AM. Her appetite is impaired. Diagnosis: Ms Kelly’s condition is a major depressive disorder with anxious distress. She has all nine symptoms described in the DSM-5 consistent with this condition. The MA had determined the same diagnosis. Activities of daily living: Ms Kelly is a single woman who lives in a shared house. She does her laundry and contributes to the general cleaning of the house, saying, ‘In a shared house, you have to.’ She showers once or twice a week without prompting. She is less attentive to her appearance and has not been to a hairdresser for over a year. She eats once or twice a day, usually having meals that she can prepare quickly, such as preprepared meals that she can heat in a microwave. She shops at a supermarket a few minutes’ drive from her home. Before becoming unwell, Ms Kelly was a ‘social butterfly’ with about 10 friends. She went to the gym 6 or 7 times a week and often joined friends at cafés or restaurants for breakfast and lunch. She also enjoyed social barbecues. She now spends her day sitting in her room, scrolling on TikTok or watching television. She hasn’t attended a gym since 2023. For a time, she saw an exercise physiologist as part of her treatment but dropped out. She has moved to the Central Coast, geographically separated from her Sydney friends. Her best friend, Danielle, lives in Wollongong. Danielle visits Ms Kelly every three months, and they spend time at her townhouse, talking and sharing meals. Ms Kelly has not been out to a restaurant or café during 2024. She is independent with local travel. Ms Kelly has socially disengaged to a significant extent. She has not been in an intimate relationship for more than six years, predating her work injury. She has lost contact with all her friends except Danielle, whom she texts daily. Her parents live in Sydney, and she has infrequent contact with them; it has been more than 6 months since they have spoken. She said, ‘They have their own lives; my mother contacts me about every six months; it’s a two-way thing.’ She doesn’t speak with her brother, but this pattern predates her injury. She described her social isolation and said, ‘I shut everybody out.’ She can watch a television series or movie for 5 to 20 minutes. She no longer reads and has no projects or hobbies. PIRS categories: The appellant challenged the MAC in three PIRS categories: self-care and personal hygiene, social and recreational activities, and social functioning. The appeal panel found grounds to review all three categories. Self-care and personal hygiene: Ms Kelly lives independently, although she cares for herself less well. She showers once or twice a week and is less attentive to her personal appearance. She contributes to housework, including laundry, cleaning and meal preparation. She shops independently. She often misses meals and eats a poor-quality diet. Her weight had increased significantly but has returned to within 5 kg of her preinjury weight. Social and recreational activities: Ms Kelly has isolated herself to a significant degree. She no longer goes to the gym and does not attend social venues such as cafés or restaurants. This is true even when she is visited by her friend from Wollongong. She does not attend family celebrations and does not socialise with her flatmates. Social functioning: Ms Kelly has been single since before her injury. She had been dating casually but no longer does so since the injury. She has significantly distanced herself from her parents. Before her injury, she had regular social contact with them and lived with them briefly when she fractured her ankle. She now has telephone contact with her mother every six months. She said this had happened because her ‘parents have their own lives’, and she doesn’t like to trouble them with her problems. This is further evidence of her disengagement, as she initially went to live with them for support. She has maintained one close friendship but has lost other friends because of her social disengagement. Given her circumstances, she could not form a new intimate relationship. 3. Findings on clinical examination I assessed Ms Kelly in her home using an audiovisual link. The connection quality was adequate for a comprehensive assessment lasting 55 minutes. She presented casually attired, wearing no makeup and with her hair tied back. She looked mildly unkempt. She was anxious and depressed. At the beginning of the interview, she was distressed and mentioned how upsetting repeated assessments had been for her. Nonetheless, she cooperated fully with the interview and openly gave a history consistent with the documents provided. Her affect was restricted, consistent with her mood, and congruent with the interview's contents. She briefly lost composure on a couple of occasions. I found no abnormality in thought form or perception. She gave a coherent history without evidence of problems with memory or attention. At the conclusion of the interview, she agreed that we had covered everything necessary but said, ‘I should have never been put in this situation’, and emphasised how difficult repeated assessments had been for her. 4. Results of any additional investigations since the original Medical Assessment Certificate No additional investigations have been done since the original Medical Assessment Certificate.” |
The Appeal Panel adopts Dr Andrews report. With regard to the category of self-care and personal hygiene, Dr Andrews report confirmed that the class 2 rating given by the Medical Assessor was appropriate. Ms Kelly was living with housemates and there was no evidence that she relied on them for support, or that she needed prompting to shower daily and wear clean clothes.
With regard to the social and recreational activities however we are satisfied that the class 2 rating does not adequately reflect Ms Kelly’s impairment. Dr Andrews’ re-examination occurred almost eight months after the Medical Assessor had reviewed Ms Kelly on 30 October 2023, and some 15 months after the Medical Assessor had found that Ms Kelly had not reached maximum medical improvement on 27 March 23.
Dr Andrews was satisfied that indeed Ms Kelly no longer goes to the gym and has no recreational activities. For a person of Ms Kelly’s age and cultural background, activities such as visiting cafés and restaurants are usual, but even when prompted by Danielle, Ms Kelly now will not go there. It is also relevant that she does not attend family celebrations.
In the circumstances, the class 2 rating given by the Medical Assessor was given when the Medical Assessor was not in possession of all the relevant facts. Moreover, Ms Kelly’s move to the Central Coast was perhaps given too much emphasis in her reasoning. In view of the fact that the medical evidence was some two years out of date, the Medical Assessor did not take a clear history of Ms Kelly’s progress, or lack of same. A class 3 rating better reflects the impairment Ms Kelly’s psychiatric disorder has caused to her social and recreational activities.
Similarly the class 2 rating for social functioning was not adequately explained, and after an updated history taken by Dr Andrews, the rating does not properly reflect the impairment caused to Ms Kelly’s ability to function within this category.
Dr Andrews elicited that Ms Kelly indeed has been single before her injury, but although she had been dating casually at that time, the impairment caused by the injury has resulted in her not dating at all. Dr Andrews obtained some clearer history regarding Ms Kelly’s relationship with her parents, which now consists of a phone call to her mother every six months.
Ms Kelly had disengaged with many of her friends but her relationship with Danielle has been maintained. It is also significant that in her circumstances, Ms Kelly could not form a new intimate relationship. For these reasons we consider that a class 3 rating is also more appropriate to reflect the impact Ms Kelly’s psychiatric disorder has caused to her ability to form social relationships.
CONCLUSION
For these reasons, the Appeal Panel has determined that the MAC issued on 30 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
Table 11.8: PIRS Rating Form
Name
Tamara Kelly
Claim reference number (if known)
W7927/22
DOB
Age at time of injury
27
Date of Injury
07.06.2022
Occupation at time of injury
Senior support worker
Date of Assessment
Marital Status before injury
Single
Psychiatric diagnoses
Major depressive disorder
Psychiatric treatment
Yes, receiving psychological interventions.
Is impairment permanent?
Yes.
PIRS Category
Class
Reason for Decision
Self-Care and personal
hygiene
2
Ms Kelly reported that her self-care is “minimal.” She showers once or twice a week. She said that her room is “never clean and she doesn’t care.” She, at times, cleans the common areas but is not bothered to keep her room neat and tidy. She said that she mostly gets takeaways or relies on making quick meals like noodles.
Social and recreational
activities
3
See above.
Travel
2
She continues to drive but does not feel comfortable when driving to far-off areas. She is, however, able to drive in the local area. She had an accident and got sideswiped but she said that she was not at fault. She described herself as being a safe driver and denied having any near-misses.
Social functioning
3
See above.
Concentration, persistence and pace
Ms Kelly reported that her attention and concentration is bad. She, at times, forgets her appointments. She is unable to maintain focus and gets distracted very easily. She, at times, forgets to eat and drink and zones out. During the assessment, however, Ms Kelly was able to maintain an optimum level of attention and answer the questions that were being asked. She was able to recollect all the information and narrate to me the incidents which took place at her workplace.
Employability
3
I believe that Ms Kelly cannot work with her previous employer and in the same position. She can, however, work less than 20 hours per week in a different position in a workplace which is less stressful than her previous employer.
Score Median Class
2
2
2
3
3
3
3
Aggregate Score Impairment Total %
+2
+4
+6
+9
+12
15
15
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7927/22 |
Applicant: | Tamara Kelly |
Respondent: | Sunnyfield |
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) |
| Psychiatric/ psychological | 7 June 2022 deemed | Chapter 11 | N/A | 15 | Nil | 15 |
| Total % WPI (the Combined Table values of all sub-totals) | 15 | |||||
0
9
0