Keogh v Zurich Financial Services Australia Ltd; Zurich Financial Services Australia Ltd v Keogh
[2024] NSWPICMP 640
•11 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Keogh v Zurich Financial Services Australia Ltd; Zurich Financial Services Australia Ltd v Keogh [2024] NSWPICMP 640 |
| APPELLANT: | Chad Keogh |
| RESPONDENT: | Zurich Financial Services Australia Limited |
| APPELLANT: | Zurich Financial Services Australia Limited |
| RESPONDENT: | Chad Keogh |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 11 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; both parties appealed; employer appealed the Medical Assessment Certificate (MAC) in respect of the assessment of self care and personal hygiene; injured worker appealed the category of social and recreational activities and sought to rely on fresh evidence being a further statement by him; Petrovic v BC ServNo 14Pty Limited and Ors, and State of New South Wales v Ali considered and applied; Held – the Medical Appeal Panel found error by the Medical Assessor (MA) in respect of the assessment of self care and personal hygiene based on the evidence; the Appeal Panel rejected the worker’s evidence in line with the authorities and found no error by the MA; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
M1-W1351/24
On 30 April 2024 Zurich Financial Services Australia Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Douglas Andrews, who issued a Medical Assessment Certificate (MAC) on 2 April 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 applications, 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.
M2-W1351/24
On 6 June 2024 Chad Keogh (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Douglas Andrews, who issued a Medical Assessment Certificate (MAC) on 1 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; and
· availability of additional relevant information being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
The delegate is satisfied that, on the face of the applications, 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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.
M1-W1351/23
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
M2-W1351/24
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 although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons we will explain more fully below.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Mr Keogh seeks to admit the following evidence:
(a) a further statement by him dated 20 May 2024.
Mr Keogh submits that the evidence was not available and could not reasonably have been obtained until the MAC of Medical Assessor Andrews had been issued.
We refer to the decision of Justice Hoeben in Petrovic v BC ServNo 14Pty Limited and Ors [2007] NSWSC 1156 where he considered what constitutes “additional relevant information” for the purposes of s 327(3)(b) of the 1998 Act:
“…‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment.”
He added:
“if a statement going to the way in which a medical assessment was conducted was additional relevant information ‘it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal’.”
In the decision of State of New South Wales v Ali [2018] NSWSC 1783, it was noted by his Honour Harrison J that s 327(3)(b) limits that right of appeal to circumstances where additional relevant information is available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed.”
An appeal under s 327 is not an opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than a panel being invited to decide an application afresh.
The purpose of the referral to a Medical Assessor is to bring finality to medical disputes, other than where there are legitimate grounds of appeal. It is expected that the parties will place all relevant documents before a Medical Assessor in the referral documents.
In addition, we note that Medical Assessor Andrews said: “When asked at the end of the interview if he had anything else to add, he said he had nothing further.” Thus Mr Keogh was provided the opportunity to clarify his responses or provide further information and did not do so.
For these reasons, the Appeal Panel determines that the evidence should not be received on the appeal because it is of little probative value, and Mr Keogh could and should have made the points now raised at the time of the assessment.
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.
SUBMISSIONS
M1-W1351/24
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in respect of his assessment with respect to the Psychiatric Impairment Rating Scale (PIRS) category of self-care and personal hygiene.
In reply, the respondent submits that no errors were made.
M2-W1351/24
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in respect of his assessment with respect to the PIRS category of social and recreational activities.
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.
Mr Keogh was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury occurring on 22 February 2021.
The Medical Assessor set out the history he obtained as follows:
“Mr Keogh commenced work with Zurich in April 2006 in a customer service role. He was promoted to Claims Assessor in 2013 and Senior Claims Assessor in 2017. As a senior claims assessor, he found his work challenging, especially dealing with distressed and angry customers. He worried that he could not help them, given the contracted rules of engagement. He said: ‘ they are just poor innocent people…so many sad stories.’
In addition to the vicarious trauma, Mr Keogh experienced a lack of support and a sense of humiliation in the workplace.
He had a ‘breakdown’ in 2019 and took sick leave that August. He returned on a graded return to work program in February 2020. Between June and September of that year, he discussed his situation with management, and they suggested that he could not continue if he couldn’t do the job. His last day of work was 22 February 2021. He was formally terminated on 31 August 2022.
He first consulted his general practitioner, Dr Saroja Gunasekera, in July 2019. He was referred for psychological therapy and, later, to a psychiatrist.”
Present treatment was noted as follows:
“Treating clinicians: general practitioner Dr John Deady; psychiatrist Dr Paul Stevenson. Mr Keogh has seen three psychologists, Mr Mark Baxter, Mr Bradley Jones and Ms Valentina Markovska. He hasn’t consulted a psychologist in the last two years, finding it unhelpful.
{A list of medications was then set out}.
Mr Keogh has been hospitalised at the South Coast Private Hospital under the care of Dr Stevenson on several occasions (30 October 2019, 9 June 2021, 26 October 2021, 27 January 2022, April 2022 and 8 December 2022). Some of these admissions had been to attend structured programs for depression and anxiety or PTSD. He has also had several courses of rTMS.
He was referred to Prof Colleen Loo at the Black Dog Institute, who suggested the possibility of ECT or treatment with ketamine. Mr Keogh was unwilling to go down this path because he felt ‘it seems too much.’
Mr Keogh stated that he has improved ‘absolutely.’ He said: ‘I have a routine which I can handle: it’s fairly unimpressive. If I consider the way I was in 2019 to 2021, especially after I stopped work, I had some very dark times with self- loathing…a poor opinion of myself. My mood and well-being have come a long way since the depths of what I suffered.”
Present symptoms were noted as follows:
“Mr Keogh has a severely low mood with a diurnal variation. He has low self-esteem and worries that he has ‘ceased to be a role model’ for his children. He has a reduced capacity to experience positive emotions but said he likes attending the children’s sporting activities and going to the beach.
He has significant anxiety associated with his health concerns and interacting with other people. He described ‘hypochondria’ saying: ’If I see a freckle I am convinced I have cancer.’
He is more irritable and prone to express anger. He said, ‘I raise my voice a lot; I don’t like the kids to ignore me. They don’t respect me anymore.’
He has subjective problems with concentration, attention, and memory. He struggles to recall dates and names and says, ‘If I go into the kitchen, I forget why I went there.’
He has frequent thoughts of suicide but said, ‘I would never do that to my kids; it’s not an option.’
He goes to bed at about midnight and has a relatively short latency with medication. He wakes several times during the night and has low-quality sleep. He often has distressing dreams and has experienced “terrifying” sleep paralysis.
His appetite is reduced, and he often skips breakfast and lunch.
He has an absent libido.”
The Medical Assessor then addressed “Details of any previous or subsequent accidents, injuries or conditions” and said:
“Mr Keogh recalled seeing his general practitioner for anxiety-provoked health concerns at the time that his children were born. He said, “I was paranoid about my physical health.” He saw specialist physicians for reassurance. Overall, he felt the problem persisted for a few weeks.
Treating psychiatrist Dr Paul Stevenson, 23 October 2019, noted, ‘He was anxious as a child and teenager but feels that his depressive symptoms did not really start until late adolescence and early adulthood.’
On 25 March 2023, Dr Stevenson described a ‘history of some difficulties with the proposed depression and anxiety longer term but these difficulties had been relatively mild and [Mr Keogh] had not sought treatment until recently.’
IME psychiatrist A/Prof Michael Robertson, 20 June 2023, referred to ‘two episodes of clinically significant escalation of anxiety symptoms’, the first at the birth of his children and the second when the family relocated from Sydney to Wollongong in 2016. He commented, ‘Mr Keogh acknowledged having high trait anxiety as a child.’”
The Medical Assessor then set out details of Mr Keogh’s general health and said:
“Mr Keogh generally has good physical health, with joint problems affecting his knees and lower back.
He recently had a colonoscopy that provoked significant anxiety and concern for
Mr Keogh about possible cancer.He is a smoker.
He starts drinking alcohol in the morning and consumes about eight cans of full-strength beer (11 standard drinks) during the day. Before 2019, he had two or three standard drinks daily and more on weekends. From 2019, he drank between 12 and 18 cans of beer daily. He underwent a course of whole rehabilitation and has reduced his consumption to his current pattern.
He eats a reduced but reasonable-quality diet.
His weight has ranged between 76 and 90 kg – he is now 82 kg.”
The Medical Assessor then set out details of Mr Albee’s work history before turning to consider his social activities and activities of daily living (ADL’s), and said:
“Mr Keogh lives with his wife of 15 years, Penny, and their three children: 11-year-old Edith, nine-year-old Patrick, and six-year-old Axel. Penny is self-employed, full-time, in a marketing and PR role, from home or the local library.
Mr Keogh generally rises at about 8 AM and helps ready the children from school. After Penny and the children leave, he sometimes returns to bed but usually does housework, including cleaning the kitchen, vacuuming and laundry. He mows the lawn every 1 to 2 weeks.
He usually showers at the end of the day without prompting, but he occasionally misses a day. He brushes his teeth once a day.
He reads news articles on his telephone and may spend time watching television. He enjoys sporting events such as rugby league, shows such as The Office, and movies. He picks movies he has already seen and usually fails to complete them.
He picks up the children from school (about a five-minute drive) and often takes them to their sporting activities. If he has known them previously, he interacts with other parents at his children’s football games. He sometimes goes out to shop for items for the family's meals.
Before becoming unwell, he enjoyed outings with workmates and went to the pub on the weekends to see friends. He was socially active with neighbours at barbecues. He rarely attended cafés or restaurants but often had family meals at the local RSL club. The family travelled to Batemans Bay for a holiday twice yearly and visited his parents in Port Macquarie.
He has kept only one friend whom he sees regularly. The family still attends the RSL for dinner once every six weeks. They flew to Cairns early in 2023 and spent eight days holidaying there. He has also attended his wife’s family gathering at Gosford before Christmas 2023. This is a three-hour drive, and he spent three nights there. Mr Keogh said he is comfortable travelling. Mr Keogh is independent with local travel.
His relationship with Penny is strained. They have frequent arguments and have threatened separation in the heat of the moment. However, they reconciled quickly and have never separated. There have been no physical author [sic] occasions [altercations?] or other violence. Mr Keogh regards his wife as caring and supportive. He hasn’t visited his parents in Port Macquarie for 18 months, but his parents travel to Bulli regularly.
He remains close to his children, parents, sisters and one friend.
Mr Keogh has no hobbies or projects at home.”
Findings on examination were reported as follows:
“I assessed Mr Keogh using a video link in his home for 70 minutes. The connection quality was adequate to do a comprehensive assessment.
He presented with short hair, unshaven and wearing glasses. He was casually attired in a dark T-shirt.
He appeared distressed and anxious during the interview. He was depressed, and his affect was restricted, consistent with his mood and the interview content. Several times, he lost his composure briefly.
There is no evidence of any disorder of thought-form or perception.
He acknowledged thoughts of suicide.
He was imprecise with dates and event sequences. On several occasions, it was necessary to restate questions or redirect him.
When asked at the end of the interview if he had anything else to add, he said he had nothing further.”
The Medical Assessor diagnosed “Major depressive disorder (MDD), chronic and treatment-resistant with melancholic features and anxious distress; Alcohol use disorder and Generalised anxiety disorder (GAD).”
He said:
“Mr Keogh has all nine symptoms described for a major depressive disorder. He has prominent melancholic features, including relative anhedonia and lack of reactivity to pleasurable stimuli, despondency and restlessness, diurnal mood variation, anorexia and guilt.
He is drinking alcohol in a pattern likely to cause significant physical and social harm over time.
He worries excessively about his health and his children’s well-being. He is restless, easily fatigued, and experiences difficulty concentrating, irritability and sleep disturbance. His GAD is long-standing, predating his work injury.”
The Medical Assessor assessed 17% WPI before deducting one-tenth for the pre-existing condition, arriving at a final 15% WPI.
He then turned to consider the other medical opinions and documents before him and said:
“Treating psychiatrist Dr Jenny Jordan, 23 September 2019, diagnosed Mr Keogh with a generalised anxiety disorder.
Treating psychiatrist Dr Stevenson, 23 October 2019, diagnosed a severe major depressive disorder and alcohol dependence.
Dr Stevenson diagnosed a severe major depressive disorder with melancholic and atypical features treated variously with escitalopram, mirtazapine, lithium carbonate, lamotrigine, duloxetine, pramipexole, prazosin, quetiapine and nortriptyline.
IME psychiatrist Dr Alexey Sidorov, 20 July 2022, diagnosed Mr Keogh with a major depressive disorder with anxious distress and an alcohol use disorder.
A/Prof Robertson, 20 June 2023, diagnosed Mr Keogh with a chronic major depressive disorder with melancholic features, which he regarded as a “severe and permanent exacerbation of a previous psychiatric disorder.” A/Prof Robertson determined a 24% WPI (classes 3, 3, 2, 3, 3 and 5) before deducting one-tenth for the pre-existing condition, arriving at a final 22% WPI.
IME psychiatrist Dr Gerald Chew, 20 October 2023, diagnosed a major depressive disorder with anxious distress and did not consider that Mr Keogh had achieved maximum medical improvement. He felt that more assertive treatment for the alcohol use disorder was warranted.
Mr Keogh’s treatment has been assertive, including addressing his substance use. He has attended an alcohol rehabilitation program, and drug and alcohol treatment is usually an integral part of mental health programs and inpatient stays. He uses acamprosate specifically to address his alcohol misuse. While it would assist
Mr Keogh’s recovery to stop using alcohol, it is unlikely that this will be achieved over the next year, regardless of treatment approaches.A/Prof Robertson found a moderate impairment in social and recreational activities, whereas I considered them mild. A/Prof Robertson wrote:’ He isolates. If he is forced to take his children to their sporting games, he will not interact with other parents and cuts a solitary figure. He will not eat his meal with his family. Any forced attendance at family occasions will see him abandoned after around 30 minutes.’
Mr Keogh told me that he likes to take his children to sporting games and interacts with other parents if he has known them for a while. He goes out with his family to an RSL every six weeks and has gone on holidays to Cairns and Gosford within the last year or 18 months. He has one friend with whom he continues to catch up regularly. He said that they ‘muck around’ without elaborating more precisely.
A/Prof Robertson found a mild impairment in travel, whereas I considered Mr Keogh unimpaired. A/Prof Robertson noted: ‘He can only leave the house on short, focused outings. He does not interact with others in the community.’
It is not true that Mr Keogh can only leave the house on short, focused outings. Whether or not he interacts with others in the community is irrelevant to this category.
A/Prof Robertson determined a moderate impairment in social functioning, whereas I considered it mild. He noted: ‘While his wife is currently a supportive figure, there had been previous significant conflicts and terrible arguments with prospects of separation. He has lost contact with all previous friends or acquaintances.’
Mr Keogh’s relationship with his wife is strained, and they often argue. He denied any separations and said that separation was unlikely. She remains caring and supportive, and he has maintained good relationships with his family and one friend. He has lost other friends because of his social disengagement. He expressed disappointment that no one from Zurich had tried to keep in contact.”
The submissions
Self-care and personal hygiene
The Medical Assessor assessed a Class 3 rating and said:
“Mr Keogh has significant support from his wife. He attends to hygiene without prompting but often skips meals. He contributes to housework, including cleaning, meal preparation and shopping. He takes no exercise. However, he is drinking in a hazardous manner, starting in the morning and consuming excessive alcohol during the day, a pattern which poses a significant risk to his psychological, social and physical well-being.”
The employer submits as follows:
(a) the Medical Assessor’s assessment is inconsistent with his own examination findings;
(b) the Medical Assessor took a detailed history of a typical day for the worker;
(c) the Medical Assessor noted that the worker received “significant support from his wife” however, it is not specified what this support is and it is not clear what this support in this category could be when the worker did not report that he required any prompting and in fact required no prompting for showering and cleaning his teeth, and he plays a role in the running of the household such as doing housework, getting the children ready for school as well as picking them up and taking them to sporting activities;
(d) there is no indication in the Medical Assessor’s history that the worker requires “significant support” from his wife and would be unable to live independently;
(e) there is a clear ability to demonstrate adequate self-care and a Class 2 rating is more appropriate;
(f) the history taken by the Medical Assessor does not fit into a Class 3 rating;
(g) looking after his three young children, waking up early, contributing to cleaning of the house and chores, generally showering and cleaning his teeth daily without prompting are inconsistent with a Class 3 rating, and
(h) the PIRS example for a Class 3 indicates someone who, without someone else caring for them, could not manage even a minimum level of hygiene. Although only examples, they form the basis for the criteria a Medical Assessor should adhere to.
Mr Keogh submits that “no errors were made”.
Discussion
The descriptor for a Class 2 reads:
“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.”
For a Class 3 it reads:
“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 Panel agrees with the thrust of the employer’s submissions.
The history recorded by the Medical Assessor is certainly inconsistent with a Class 3 rating.
It seems to us that the Medical Assessor has focussed on what he described as a “hazardous” drinking pattern, “starting in the morning and consuming excessive alcohol during the day, a pattern which poses a significant risk to his psychological, social and physical well-being”.
This focus is understandable given the harm the Medical Assessor considered that Mr Keogh was doing to himself.
Having said that, most of the history the Medical Assessor obtained in relation to this category certainly fits the descriptor for a Class 2 rating.
The employer also makes a valid submission regarding the concept of “support”.
It is by definition a somewhat nebulous concept but in the context of the descriptor, it seems difficult to confirm the need for “support” to live independently in circumstances where no prompting is generally required for a reasonable level of self-care and hygiene. This is a lower threshold than that of Class 3 where family members are required to ensure a minimum level of hygiene and “usually” spends some of the day in household activities that are needed for a hygienic environment.
As such, given the evidence before the Medical Assessor, a Class 2 rating is appropriate.
Social and recreational activities
Mr Keogh submits that the Medical Assessor erred in his assessment of a Class 2 rating in this category, essentially on the basis of his further statement dated 20 May 2024 referred to above.
That statement has been rejected by the Panel in line with the relevant authorities on this issue to which we have referred.
The Medical Assessor, in assessing a Class 2 rating said:
“He has reduced social interaction but attends an RSL club every six weeks. He goes to his children’s sporting activities and training and games, where he interacts with other parents if he is familiar with them. He has gone on two family holidays in 2023, one with his wife’s extended family. He sees one friend regularly. He is uncomfortable with unfamiliar people or crowds.”
The descriptor for a Class 2 reads:
“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).”
For a Class 3 it reads:
“Moderate Impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without support person. Not actively involved, remains quiet and withdrawn.”
On the history obtained by the Medical Assessor it is clear that Mr Keogh engages in such events more frequently than rarely and can become involved in social aspects of them with familiar people.
He will talk to other parents at the children’s activities and games, inconsistent with being ‘quiet and withdrawn’ as many social and recreational activities, particularly of parents of active children, involve accompanying family members. The family have a dinner at a social venue every six weeks and he “mucks around” with an old friend “regularly”.
There is no suggestion that he needs prompting to attend these events, nor that he requires a support person.
Finally, we point out that the Medical Assessor clearly explained his reasons as to why he disagreed with the assessments of A/Prof Robertson. Although the Panel note the Medical Assessor did not specifically refer to Mr Keogh’s statement of 19 February 2024, he elicited more extensive and specific social functioning on the day of the assessment than that contained in that statement, which by its very nature is a more subjective narrative that would accentuate impairment rather than function.
His assessment in this category was consistent with a Class 2 rating on the evidence. He ascribed the appropriate rating, and we see no error by him.
The scores in ascending order are then 2,3,5, median 2, aggregates 15, which generates a WPI 8% before a s 323 one-tenth deduction.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 April 2024 should be revoked.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1351/24 |
Applicant: | Chad Keogh |
Respondent: | Zurich Financial Services Australia Limited |
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 Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric | 22 February 2021 | Chap 11, p 54-60 | N/A | 8% | 1/10th | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
3
0