Kerr v Sydney Catholic Schools Limited
[2023] NSWPICMP 614
•27 November 2023
DETERMINATION OF APPEAL PANEL CITATION: Kerr v Sydney Catholic Schools Limited [2023] NSWPICMP 614 APPELLANT: Allison Kerr RESPONDENT: Sydney Catholic Schools Limited APPEAL PANEL MEMBER: John Wynyard MEDICAL ASSESSOR: Douglas Andrews MEDICAL ASSESSOR: Ash Takyar DATE OF DECISION: 27 November 2023 CATCHWORDS: WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 7% assessment in psychological injury case; whether the psychiatric impairment rating scale (PIRS) categories had been assessed correctly; whether a section 323 deduction had been justified; Held – appellant’s submissions difficult to comprehend, factually incorrect and unsupported by reference to specific evidence or authority; Panel considered assessments in PIRS category in accordance with Wingfoot Australia Partners Pty Ltd v Kocak duty; Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; social functioning category altered from 2 to 3; Held – Medical Assessment Certificate revoked.
BACKGROUND TO THE APPLICATION TO APPEAL
1.On 21 August 2023 Allison Kerr, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 August 2023.
2.The appellant relies on the following ground 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.
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 (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.
5.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 Guide) 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
6.On 3 March 2023 this matter was referred by the delegate to the President for an assessment of WPI caused by psychological and psychiatric injury on 5 October 2021.
7.The face of the referral also indicated that there had been a Certificate of Determination dated 3 March 2023. The Certificate of Principal Member Josephine Bamber ordered that the lump sum was to be referred with a “deemed” date of injury of 5 October 2021. Nothing turns on this anomaly, as all parties have accepted that the injury was in the nature of a disease injury pursuant to s 4(b) of the 1987 Act.
8.Ms Kerr originally suffered a psychological injury whilst employed as a chemistry teacher at Our Lady of Sacred Heart at Kensington where she began work in 2011.
9.She brought proceedings in the Workers Compensation Commission in matter no 6237/18 which were resolved on 23 January 2019 by Consent Orders providing for the voluntary payment of weekly compensation.
10.The present proceedings alleged in the Application to Resolve a Dispute (ARD) that Ms Kerr had suffered a psychological injury due to the bullying and harassment in the workplace and unfair treatment by the employer.
11.When suitable duties were not supplied following settlement of that earlier matter, Ms Kerr instituted proceedings in the Fair Work Commission and the Federal Court seeking protection from termination, the provision of suitable duties and compensation.
12.In January 2020 her employer terminated her employment and advertised her position in September 2021, despite assuring her that she was still employed.
13.The termination was conceded by the employer to have been due to an administrative error and the Federal Court proceedings resolved on 5 October 2021. Part of that resolution was Ms Kerr’s resignation.
14.At the time of the present assessment, Ms Kerr was a casual teacher at Fort Street Selective High School working between one to three days and occasionally four days per week.
15.She was employed as a secondary classroom teacher. She was working with bright students primarily in a supervisory role as a casual teacher. She had been working at Fort Street for three years at the time of the assessment.
16.The Medical Assessor assessed 6% WPI.
PRELIMINARY REVIEW
17.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.
18.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 a demonstrable error was found, it involved the application of s 323 of the 1998 Act, and the relevant evidence was already before us.
EVIDENCE
Documentary evidence
19.The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
20.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
21.Both parties made written submissions which are considered below.
FINDINGS AND REASONS
22.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.
23.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.
24.The grounds of appeal are discussed below.
The MAC
25.The Medical Assessor gave a detailed history of both Ms Kerr’s injuries.
26.As far as Ms Kerr’s past medical history, the Medical Assessor said:[1]
“Dr Turnbull[2] noted she saw Dr Naveen Chandra, psychiatrist, since 1990 for severe social anxiety and aspects of generalised anxiety disorder. The anxiety symptoms were at their worst in the early nineties. He noted she still had significant symptoms when he first saw her in 2007 in correspondence dated 20 November 2019. He noted her capacity to function as a teacher. He noted the effects of anxiety on her cognition, the impact during her assessment with Dr Skinner, and the lack of impact from long-term oxazepam use.
In his report dated 29 May 2017, Dr Turnbull noted Ms Kerr had had two admissions to hospital at some point in the early 1990’s. Comment: Ms Kerr denied she had ever been admitted to a psychiatric hospital.”
[1] Appeal papers page 42.
[2] Dr Vaughan Turnbull was Ms Kerr’s treating Consultant Psychiatrist who had been managing Ms Kerr’s case since 2007: Appeal papers page 128.
27.The Medical Assessor noted Dr Turnbull’s observations that Ms Kerr’s presentation to him in 2017 was that she was “an exquisitely sensitive person and has overall done extremely well given the severity of her symptoms.” At the time of Dr Turnbull’s report, she was working full time and had a range of interests but remained quite socially isolated outside her work, apart from her family relationship.
28.The Medical Assessor noted on two occasions in this segment that admissions to hospital had been referred to by Dr Turnbull. Both times the Medical Assessor noted that Ms Kerr refuted those statements. Again dealing with Dr Turnbull’s report, the Medical Assessor noted the treatment had never abolished her symptoms completely, in that she continued to fulfil criteria for a panic disorder with agoraphobia. Dr Turnbull had noted her 18-year history of an extremely severe anxiety disorder.
29.The Medical Assessor then referred to a report by Dr Naveen Chandra dated 22 August 1990. Dr Chandra, a consultant psychiatrist, noted that Ms Kerr was “a non-confident, non-assertive introvert who ‘cannot make friends and has no friends now’.”
30.The Medical Assessor noted that Dr Chandra wondered about paranoid schizophrenia or the presence of thought disorder provoked by extreme anxiety.
31.Also, in referring to Ms Kerr’s previous medical history, the Medical Assessor referred to a report by psychologist Anthony Pignataro dated 28 August 2015. Mr Pignataro noted a challenging clinical picture with personality traits impacting on mood, functioning and outlook.
32.There were repeated references to ‘social anxiety’, and other forms of anxiety such as separation anxiety and maladaptive coping.
33.At [7] of the MAC the Medical Assessor summarised the injury he was dealing with, saying:
“[Ms Kerr] had an initial psychological injury in the context of alleged bullying in 2017 and a subsequent injury whilst attempting to return to work with her former employer.”
34.The Medical Assessor considered that the consensus from the treating clinicians was that
Ms Kerr had a long history of a social anxiety disorder and avoidant personality traits.35.He found that Ms Kerr developed a major depressive disorder by 2017. The Medical Assessor referred to evidence from the respondent concerning the 2017 injury, which suggested performance issues and instability of her mental health leading into the injury and “conflict with her daughter as a potential non-work-related stressor. Although she claimed to have recovered after the initial injury, her condition remained fragile due to her pre-existing vulnerability and lingering impacts of the initial injury.”
36.The Medical Assessor also said that he was satisfied that there was no longitudinal evidence of a psychotic disorder, and he was more convinced by Ms Kerr’s presentation and the evidence of her treating clinicians than by Dr Roberts.[3] The Medical Assessor said:
“The current episode of persistent depressive disorder is a recurrence of major depressive disorder diagnosed by other clinicians during her first injury.”
[3] Dr John Albert Roberts, Consultant Psychiatrist, was the respondent’s medico-legal expert whose reports were at appeal papers pages 424 and 438.
37.The Medical Assessor observed that the longitudinal history established a diagnosis of social phobia and avoidant personality. She had also a longstanding use of Benzodiazepines, but in view of the length of time that Ms Kerr had been using them, he did not find her to meet criteria for Benzodiazepine use disorder.
38.The Medical Assessor found that both the social phobia and major depressive disorder were pre-existing conditions, and he made a deduction pursuant to s 323(2) of the 1998 Act of 1/10th.
39.The Medical Assessor said that Ms Kerr presented as a reliable historian and her functionality during examination was consistent with a diagnosis of pre-existing conditions in the evidence provided by her treating clinicians.
40.At paragraph 10c the templated question asks:
“My brief comments rather the other medical opinions and findings submitted by the parties and, where applicable reasons why my opinion differs.”
41.The Medical Assessor gave a most thorough answer to that question. He dealt with every relevant document that was before him.
42.He summarised Ms Kerr’s statement. He noted that questions had been raised regarding
Ms Kerr’s ability to perform requirements of a teacher and noted the correspondence between the parties regarding suitable duties.43.He dismissed any suggestion that Ms Kerr was suffering from a psychosis.
44.He noted the consistent diagnosis was of social anxiety disorder and he noted the determination of Member Bamber that “Ms Kerr’s mental state deteriorated at the beginning of 2019 leading to the diagnosis of major depressive disorder being added to an underlying pre-existing and continuing social anxiety disorder.”
45.The Medical Assessor noted Ms Kerr’s actions at the Fair Work Commission and in the Federal Court.
46.In considering Dr Teoh’s report of 3 December 2021 he said:
“Dr Teoh on 3 December 2021 diagnosed major depressive disorder caused by bullying and harassment diagnosing Whole Person Impairment at 15%. He has underestimated the impact of her pre-existing social anxiety disorder when assessing social function, attributing problems in her relationships entirely to the work-related injury. He has not adjusted for the pre-existing condition.”
47.The Medical Assessor then considered statements from Ms Kerr’s teaching colleagues and managers, noting the signs of Ms Kerr’s anxious behaviour impacting on her performance. These included “not meeting deadlines, a deterioration in the quality of her work and concerns by parents regarding the behaviour of students in the classroom. These statements were about the initial injuries”.
48.He noted a report from the Principal on 20 December 2017 that Ms Kerr was screaming on the telephone hysterically speaking to her daughter and saying she should just walk out across the road and get hit by a bus. This phone conversation occurred in the common room, the Medical Assessor noted, causing concern amongst staff.
49.The Medical Assessor then considered the reports of Dr Roberts and his opinion that employment was not a contributing factor. This, Dr Roberts advised, was because Ms Kerr was an example of a mentally ill personal attempting to function in the workplace, not a person made mentally ill by work.
50.The Medical Assessor noted that Dr Roberts said that Ms Kerr would likely react as she has in the past by misinterpreting the environment in a paranoid manner and periodically decompensating because of her illness.
51.The Medical Assessor noted Dr Roberts’ reliance on Dr Chandra’s report about Ms Kerr suffering from a paranoid psychosis or paranoid personality traits.
52.The Medical Assessor said:[4]
“I am satisfied from the treatment clinician's history that there is no longitudinal evidence of a psychotic disorder and that her perceptual abnormalities are in keeping with interpersonal sensitivity and distortion induced by extreme anxiety and stress, in a person with social anxiety disorder. I accept that her function was impaired even while employed, evidenced by anxiety-related performance issues highlighted by various colleagues and managers.”
[4] Appeal papers page 49.
53.As to the application of s 323 of the 1998 at [11] of the MAC, the Medical Assessor found that Ms Kerr had two pre-existing conditions or abnormalities, namely social anxiety disorder and major depressive disorder.
54.He said that the history and documentation confirmed the pre-existing conditions. He noted that the social anxiety disorder impacted Ms Kerr’s functioning at work leading up to the injury and that she developed a major depressive disorder and then recovered. He noted she returned to her pre-injury but was ready to return to work. He noted she continued to have her ongoing social anxiety disorder. He said:[5]
“She was vulnerable, was subsequently re-injured and developed a recurrence of major depressive disorder.”
[5] Appeal papers page [50].
55.He applied the provisions of s 323 of the Act noting that she had apparently recovered from the initial major depressive disorder and come back to her pre-morbid level of function especially with a person of longstanding anxiety disorder who is no longer depressed. He assessed a 1/10th deduction.
SUBMISSIONS
56.The Medical Assessor erred, Ms Kerr submitted, by finding that she suffered “perceptual abnormalities”, a finding that was based on the views of Dr Roberts which itself had not been accepted by Member Bamber in her decision.
57.It was further submitted that the Medical Assessor had erred in finding that Mr Kerr’s “function was impaired” prior to the injury, again contrary to the decision of Member Bamber, and the evidence of the “applicant.”
58.Ms Kerr said “this appears to be based again on accepting the views of Dr Roberts, not accepted by the Commission in its Judgment and contrary to the views of Dr Vivienne James, treating psychiatrist”.
59.Ms Kerr alleged also that the Medical Assessor erred “in making his own finding by refuting the accepted views of Dr Teoh stating he had underestimated the effects of the pre-existing social anxiety disorder.” It was further submitted that “the role of the Medical Assessor was to assess ‘injury as found by the Commission and not make his own findings on ‘injury’.”
60.It was submitted that Ms Kerr did not suffer from a pre-existing major depressive disorder. Whilst she suffered from a previous social phobia she was fully functional and had a successful academic career and further a career in teaching.
61.It was submitted that the social phobia did not have any relevance and such had been found by Member Bamber.
62.It was submitted that the Medical Assessor “appears to have” accepted the views of
Dr Roberts over the treating doctors and those of Dr Teoh, which again was contrary to the Judgement of the Commission.63.It was submitted that the Medical Assessor had taken a selective interpretation of the facts and, as we understood the submission, ignored the findings of fact made by Member Bamber.
64.It was further submitted the Medical Assessor’s description of Ms Kerr’s employment as a secondary classroom teacher demonstrated that he did not understand that she was then a casual teacher.
65.Further allegations of incorrect facts were:
· Ms Kerr did not want to retire to the South of France with a male friend;
· she did not want to sell her Sydney home;
· her home is in Kirrawee and not in Sutherland;
· the fact that Ms Kerr has a love of France and Honours Degree in French was not relevant to the claim;
· she was not “terminated” by the respondent;
· she was not offered or provided with “suitable duties”;
· Ms Kerr referred to her action in the Federal Court in this regard and to the decision of Member Bamber;
· the Medical Assessor’s finding that suitable duties had in fact been offered appeared to be based on a s 78 notice which had been rejected by the Commission and showed a “lack of understanding” as to the significance of the findings of the Commission;
· the Medical Assessor had taken it upon himself to be a finder of fact and made findings of injury that were contrary to those of the Commission;
· the Medical Assessor made a further error in stating that Ms Kerr never had a lot of friends and by implying that she was always impaired. It was submitted that
Ms Kerr’s statement that she found it hard to maintain her current friends did not equate with a conclusion that she had always been impaired;· Ms Kerr referred to her career as School Captain in primary school, Vice Captain in High School and her acting in plays at High School and her always having friends;
· it was not factually accurate for the Medical Assessor to find that Ms Kerr had never been a social person. Ms Kerr was a social person who had dealt with her social phobia. She had relationships, attended social events and spent a lot of time with her family and extended family and daughter;
· it was incorrect for the Medical Assessor to state that Ms Kerry had a “background of longstanding avoidant personality traits”. This was not documented by
Drs James, Turnbull or Chandra, Ms Kerr submitted, and· the Medical Assessor made a further factual error in finding that performance issues and instability of Ms Kerr’s mental health led her to the injury. That was factually incorrect and it was inconsistent with the findings of the Commission. It created a bias in the assessment of the actual injury that was before the Medical Assessor, which was bullying and harassment aggravated by her failure to get suitable duties and including the erroneous termination of her employment.
66.Ms Kerr said that there had been demonstrable errors in each of the categories of the Psychiatric Impairment Rating Scales (PIRS). The Medical Assessor’s findings that Ms Kerr was not motivated for maintaining a pre-injury level of self-care and hygiene was commensurate with a moderate rather than a mild impairment.
67.Ms Kerr made submissions in respect of each of the categories in the PIRS.
68.Ms Kerr also stated that there was no evidence to justify the 1/10th deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act.
Respondent
69.The respondent referred to the list of factual errors that were alleged and submitted that it was not clear if each of the paragraphs was intended to constitute its own ground of appeal.
70.It was submitted that Ms Kerr had not given a complete summary of what the Medical Assessor stated so far as the allegation regarding perceptual abnormalities.
71.The respondent stated that Ms Kerr was undeniably impaired prior to the injury because she received compensation for psychological injury in 2019. That injury was not the subject of the current proceedings.
72.The respondent rejected the suggestion that the Medical Assessor had made a determination of injury that was contrary to the findings of Member Bamber, describing the submission as being “utterly incorrect.” The respondent referred to the diagnosis given by the Medical Assessor that Ms Kerr had suffered an aggravation of a recurrent major depressive order. The respondent argued that this was the injury found by Member Bamber.
73.The respondent submitted that it was unclear what the basis of Ms Kerr’s submission was.
74.The respondent submitted that the pre-existing social anxiety or phobia disorder noted by the Medical Assessor was entirely consistent with the findings by Member Bamber, who noted that Ms Kerr did suffer such a pre-existing, longstanding and continuing condition.
75.There was accordingly no basis for the submission that the Medical Assessor had reached a conclusion on the nature of the injury contrary to the findings of the Member.
76.The respondent also submitted that there was no basis for the allegations made by Ms Kerr that the Medical Assessor had prepared his report accepting the views of Dr Roberts. That submission was not supported by any reasoning or any specific reference to either the evidence or the MAC.
77.It was submitted that the Medical Assessor arrived at his own conclusions on the credible questions before him and had not contravened his obligation to assess the injury as defined by the Member.
78.The Medical Assessor was aware that Ms Kerr was working as a casual employee, as he specifically said so.
79.The respondent argued that the factual errors alleged by Ms Kerr had not been supported by any evidence, but rather appeared to have been made on instructions from Ms Kerr whilst her legal practitioner was preparing the appeal submissions.
80.The respondent gave as an example the submission that Ms Kerr did not wish to retire to the South of France. The respondent submitted that there is no evidence supporting that submission.
81.The respondent submitted that in any event Ms Kerr had not attempted to explain (if indeed such factual errors had been made) how they constituted error. The respondent observed that a demonstrable error required that more than mere disagreements or misuse of language had to be established.
82.The respondent submitted that Ms Kerr similarly had not made any submissions that explained why the class rating ascribed by the Medical Assessor should be found to be incorrect, nor why the s 323 deduction was incorrect.
83.The respondent submitted that the s 323 deduction of 1/10th was appropriate and in accordance with relevant authority.
84.We were referred to Vitaz v Westform NSW Pty Ltd[6] and Marks v Secretary, Department of Communities and Justice (No 2).[7]
[6] [2011] NSWCA 254.
[7] [2021] NSWSC 616.
DISCUSSION
85.Section 323 the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The Psychiatric Impairment Rating Scale
86.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.
87.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 55.
88.The Medical 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.
89.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 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 (Ferguson).
[11] [2015] NSWSC 633 (Jenkins).
90.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 (Parker).
91.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.”
92.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.
93.In Western Sydney Local Health District v Chan[13] Adams J found that a Medical Assessor (AMS as they were then called) was bound following the High Court authority of Wingfoot Australia Partners Pty Ltd v Kocak[14] to set out in his Statement of Reasons the actual path of reasoning by which he arrived at his opinion.
[13] [2015] NSWSC 1968.
[14] [2013] HCA 43; 252 CLR 480.
94.We have already referred to Vegan at the outset of these reasons which found that the extent of the reasons required to be given by an Appeal Panel (and by analogy with Chan, a Medical Assessor) can vary from case to case, depending on whether one conclusion or more than one conclusion is open.
95.We had some difficulty in comprehending the import of the submissions by Ms Kerr. It can be seen that they were discursive, emotive and for the most part devoid of any intellectual rigour. For instance, in the first submission it was alleged that “the AMS” erred by stating that Ms Kerr suffered “perceptual abnormalities” allegedly following the views of Dr John Albert Roberts.
96.We have reproduced the comments by the Medical Assessor about Dr Roberts. There was no such opinion expressed by Dr Roberts, and contrary to the allegation by Ms Kerr, the Medical Assessor stated that he disagreed with Dr Robert’s opinion, which had been that Ms Kerr was suffering from a psychosis. Dr Roberts did not use the term “perceptual abnormalities”.
97.It was common ground with all the clinicians that Ms Kerr did have a pre-existing condition. The Medical Assessor was simply confirming that there was no longitudinal evidence of a psychotic disorder, and that the perceptual abnormalities which were variously described as social anxiety disorder, major depressive disorder or avoidant personality traits, did not interfere with her ability to carry out her functions as a chemistry teacher.
98.The assertion that the Medical Assessor had found a prior impairment of function, contrary to the determination of Member Bamber, was simply wrong. We have referred to the comments by the Medical Assessor at [47] above. No attempt was made by Ms Kerr to locate the actual evidence on which this irresponsible submission was made, beyond the page reference to the Medical Assessor’s reasons, a perusal of which did not support the allegation.
99.The allegation that the Medical Assessor had accepted the views of Dr Roberts again is simply wrong. The Medical Assessor was at pains to distance himself from Dr Robert’s opinions, as he stated at [39], [46] and [52-55] above.
100.We were unable to comprehend the appellant’s submission that the Medical Assessor had made his own findings on “injury,” by accepting Dr Robert’s views over the determination of Member Bamber and the opinion of Dr James. This significant allegation was not developed by reference to either specific evidence or authority, and was no more than a zephyr of a thought. The same can be said about the submission that the “AMS” had made a “selective interpretation and acceptance” in defiance of the findings of Member Bamber.
101.We note the bullet list of alleged factual errors we have referred to above. With regard to France, the appellant was referring to the comments by the Medical Assessor that appeared when he related Ms Kerr’s present symptoms.[15] The gist of the appellant’s submissions appeared to be that the Medical Assessor said that Ms Kerr wished to retire to the south of France, to sell her Sydney home, which was in Kirrawee and not Sutherland.
[15] Appeal papers page 41.
102.Again, this submission has the hallmarks of the other submissions we have referred to. A perusal of the comments made by the Medical Assessor showed that whilst he referred to
Ms Kerr’s desire to sell her house in Sutherland (which is the neighbouring suburb to Kirrawee) and retire to the south of France with her male friend, the Medical Assessor said:[16]“… [Ms Kerr] said she had abandoned this dream. She told me, “I just don’t care anymore. I don’t give a damn anymore.”
[16] Appeal papers page 41.
103.Moreover, when discussing Ms Kerr’s activities of daily living, the Medical Assessor noted that Ms Kerr’s relationship with her male friend had “fallen apart”.[17]
[17] Appeal papers page 43.
104.Again, Ms Kerr’s submissions demonstrate a regrettable lack of attention to detail and a cavalier approach to the facts. The other issues within the bulleted list were allegations unsupported by specific reference to the evidence. The submission that the Medical Assessor displayed a biased assessment because he found there to be a pre-existing condition flies in the face of the evidence that was carefully and comprehensively considered by the Medical Assessor, and ought not to have been made.
105.We have not reproduced each submission concerning the individual categories of the PIRS Table, as the appellant has simply quoted parts of the various PIRS tables without developing any argument beyond stating that the assessed class should be raised to the next level in each category. We were not assisted by this method of advocacy.
106.In Wingfoot, the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) stated:
“…The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[48] The reasons that [the relevant Victorian Act] obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”
107.We have accordingly considered the assessments made by the Medical Assessor in each of the PIRS categories. We are satisfied that the assessments for each category was open to him. Indeed the Medical Assessor’s reasoning was in the main impeccable, as can be seen by the industry and care he applied to his task in the compendious MAC he wrote.
108.However, we have some hesitation in confirming his mild class 2 assessment for the category of Social Functioning. To repeat, he said:[18]
“Dr Teoh on 3 December 2021 diagnosed major depressive disorder caused by bullying and harassment diagnosing Whole Person Impairment at 15%. He has underestimated the impact of her pre-existing social anxiety disorder when assessing social function, attributing problems in her relationships entirely to the work-related injury. He has not adjusted for the pre-existing condition.”
[18] Appeal papers page 49.
109.In his Table 11.8 PIRS Rating Form, the Medical Assessor said, in ascribing a mild, class 2 value to this category:[19]
“She has a fractious relationship with her family, not necessarily caused by work related issues but compounded by the effects of the work related injury.
She has always been socially isolated by the effects of social anxiety disorder and avoidant personality traits.”
[19] Appeal papers page 52.
110.The descriptors for mild, class 2, and moderate, class 3, evaluations are:
“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.”
111.We have already noted that Ms Kerr’s relationship with her male friend had “fallen apart.” Her relationship with her daughter was described by the Medical Assessor when he was discussing her social activities. He said:[20]
“She is estranged from her daughter. She said they had not spoken for two years. They briefly got back in touch after her daughter had put a caveat on her home. She said her daughter might send a message occasionally and visited twice early last year, and they went out for coffee. She said they had another disagreement several months ago and have not spoken much since. She said they spent a lot of time together when Ms Kerr was at university, and her daughter was attending school and doing her HSC. When
Ms Kerr’s mother passed away, they moved to Sydney and were close. Her daughter finished her law degree and became a barrister. She said that her daughter met a partner. She described her daughter as extroverted, not an introvert like herself. She said her daughter’s partner did not like her. In 2017, Ms Kerr went to France. Her daughter was concerned about the relationship and Ms Kerr’s proposed financial decisions, they came into conflict, and Ms Kerr’s daughter put a caveat on her home. Her daughter told her she did not want to see her anymore.”[20] Appeal papers page 43.
112.We are satisfied that this evidence demonstrates that the previously established relationships were indeed fractious, as described by the Medical Assessor, and were severely strained. The Medical Assessor’s reasons were consistent with a moderate impairment but his explanation that Ms Kerr had always been socially isolated, and that the fractious relationship was “not necessarily” compounded by the effects of her work-related injury, appear to be his motive for not awarding a class 3 assessment.
113.We, with respect, are unable to follow that line of reasoning. The Medical Assessor applied at [11] the provisions of s 323(2) of the 1998 Act to deduct one tenth from the impairment caused by the subject injury because Ms Kerr’s prior social isolation had contributed that one tenth to her current impairment. His reasoning that Ms Kerr had always been isolated by the effects of her isolation were accordingly not germane to the assessment of whether she should be ascribed a mild or moderate classification. To reduce the classification from 3 to 2 on that account amounts to a double penalty.
114.Similarly, the comment that the severely strained relationship had “not necessarily” been caused by the work-related issues overlooks the fact that whilst it might not have been caused by the subject injury, it was aggravated by the work injury.
115.We shall accordingly revoke the MAC to correct this error.
116.We also confirm the one tenth deduction made by the Medical Assessor. As we have indicated, the Medical Assessor accurately outlined the pre-existing conditions from which
Ms Kerr suffered. He traced the development of her social anxiety and avoidant personality trait – going back as far as 1990 as reported by Dr Chandra, and their perseverance as set out by Dr Turnbull. Dr Turnbull noted that Ms Kerr was suffering from an extremely severe anxiety disorder as late as 2017. Ms Kerr’s pre-existing conditions of social anxiety and avoidant personality are psychiatric diagnoses within DSM-IV, and they made her vulnerable to a recurrence of the major depressive disorder that had been diagnosed by Dr Turnbull prior to her injury with the respondent. Her work injury there re-injured and developed a recurrence of that disorder, as the Medical Assessor found.117.For these reasons, the Appeal Panel has determined that the MAC issued on 3 August 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number:
W6403/22
Applicant:
Allison Kerr
Respondent:
Sydney Catholic Schools 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 Clayton Smith 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/psychiatric injury
5.10.21
Chapter 11
Page 54
15
1/10th
14
Total % WPI (the Combined Table values of all sub-totals)
14%
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
Name
Allison Kerr
Claim reference number (if known)
W6403/22
DOB
Age at time of injury
55
Date of Injury
18/07/2023
Occupation at time of injury
Science teacher
Date of Assessment
18/07/2023
Marital Status before injury
Single
Psychiatric diagnoses
1. Persistent depressive disorder
2.Social phobia
Psychiatric treatment
Antidepressants and psychiatric review
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Ms Kerr can live independently and maintain a minimum level of hygiene and nutrition and at a standard suitable for her role as a casual teacher when required. She is not as motivated to maintain her pre-injury level of self-care and hygiene.
Social and recreational activities
3
Ms Kerr rarely goes to social events. She has few recreational activities. Her social network is limited to one friend and acquaintances at work. She superficially interacts with staff and is wary and uneasy in social settings, fearing criticism or judgement.
Travel
2
She lacks the interest and motivation to travel as she did before the injury.
Social functioning
3
She has a fractious relationship with her family, not necessarily caused by work related issues but aggravated by the effects of the work related injury. She has always been socially isolated by the effects of social anxiety disorder and avoidant personality traits. And these have been aggravated by the subject injury
Concentration, persistence and pace
2
While I accept that she has subjective problems with her memory and concentration, suggesting a class 3 impairment, she can supervise high school students across various subject areas up to 3 days per week. I accept that her input into the teaching material is limited and that the students are mostly self-directed and bright. Nonetheless she has to be across various technologies, curricula, timetables, and persist for an entire school day while interacting with others, even if superficially. This is inconsistent with a class 3 impairment.
Employability
3
She cannot work in the same position. She can tolerate less than a full time load (up to three days per week) in a casual role that is qualitatively less demanding than a full-time classroom teacher.
Score
Median Class
2
2
2
3
3
3
= 3
Aggregate Score Impairment
Total %
2+
2+
2+
3+
3 +
3+
15%
0
8
0