Knight (nee Sanders) v State of NSW (NSW Police Force)
[2025] NSWPICMP 89
•14 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Knight (nee Sanders) v State of NSW (NSW Police Force) [2025] NSWPICMP 89 |
| APPELLANT: | Kate Knight (nee Sanders) |
| RESPONDENT: | State of NSW (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 14 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant submits that the Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale (PIRS) namely travel and social functioning; fresh evidence by way of a further statement sought to be admitted; statement rejected; Petrovic BC Serv No 14 Pty Limited applied; Held – no error in Medical Assessment Certificate (MAC); MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 October 2024 Kate Knight (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
26 September 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;
· the MAC contains a demonstrable error, and
· the availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against) (section 327(3)(b)).
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 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.
As a result of that preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination because although one was requested, the Appeal Panel is satisfied that we have sufficient evidence to enable us to determine this appeal for reasons we will set out in due course.
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.
The appellant seeks to admit the following evidence:
(a) a further statement from the appellant dated 24 October 2024.
The appellant makes no submissions regarding the requirements of s 328(3).
The appellant submits as follows:
(a) it is alleged that the Medical Assessor’s interview was conducted in an unprofessional manner and led to an inaccurate report. Statements from the appellant and spouse will provide firsthand accounts of the clinical interview, highlighting discrepancies and how the clinical examination was conducted;
(b) the fresh evidence is to provide the Commission to gain an understanding of the circumstances;
(c) procedural fairness requires that the assessment process be conducted in a professional, fair, thorough and independent manner. These statements show how the interview was conducted;
(d) statements indicate the discrepancies between the report and the actual medical condition and experiences of the appellant;
(e) omissions of critical information, and
(f) this statement is therefore important to show the errors and the conduct of Medical Assessor in the interview. Allowing these statements are in the interest of justice.
At the outset, we point out that no statement from the appellant’s husband has been filed in this matter.
As Hoeben J said in Petrovic BC Serv No 14 Pty Limited, 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.” (See also Lukacevic v Coates HireOperations Pty Ltd [2011] NSWCA 112).
For these reasons the Panel has determined that the further statement of the appellant is not “fresh evidence” in light of the authorities to which we have referred, and the failure by the appellant to address the specific requirements of s 328(3).
The statement is therefore rejected.
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
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 his assessments under two categories of the psychiatric impairment rating scale (PIRS), namely Travel and Social functioning.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a date of injury of
7 February 2023.The Medical Assessor obtained a detailed history of the circumstances of the injury which we do not intend to repeat here.
The Medical Assessor then set out details of her personal and family history, before setting out details of her present treatment as follows:
“She continues to see her Psychiatrist, Dr Patrick Morris and is currently on Sertraline 200 mg tablet, Quetiapine 25 mg two tablets nocte and Prazosin 2 mg. She also is engaged with a Psychologist, Roz Hamilton, on a fortnightly basis.”
Present symptoms were noted as follows:
“Ms Knight reported that overall, she experiences the same symptoms as before. She said that she feels that she does not have any purpose anymore and struggles to have the capacity to learn anything new. Her medications have helped her with her sleep. She, however, continues to have nightmares which have now decreased slightly with the medications.
She feels ‘scared of people trying to get her.’ She reported that her mood fluctuates and she has bad and good days. She also experiences anger and irritability and gets snappy very quickly. She feels quite overwhelmed and often struggles to deal with day-to-day things. She said that she has been mostly reclusive and withdrawn from others and does not have the motivation to organise and get together like she used to previously. Overall, there has not been any significant change even after the treatment that she has received.”
The Medical Assessor then turned to consider the impact of Ms Knight’s injury on her social activities and activities of daily living (ADL’s) and said:
“Ms Knight reported that she showers and brushes her teeth every day and is able to take care of herself adequately. She said that she has; however, stopped doing makeup and is no longer concerned about how she looks. She is able to do household chores including laundry, bathroom, and vacuuming. She is able to cook food like curry etcetera in the slow cooker since she has never been very good at cooking.
Ms Knight enjoyed going to the gym, socialising, going out for dinner with family and friends, and visiting her parents. She also enjoyed spending time with her kids, but since they are getting older they do not like spending time with her. She now goes for a walk and walks for about 3 to 4 km instead of going to the gym. She visits her friend's home and prefers to see them at their home. Her friends do visit her at her home. She avoids friends and colleagues from the New South Wales Police Force. She said that her parents visit her every couple of months. She prefers to spend time with her family and with her close friends.
She leaves her house to pick up and grab her kids for grocery shopping and mostly does direct-to-boot delivery. She visits her friend as well and attends medical appointments. She is able to drive to Wollongong which is a 50-minute drive and driving to Dr Morris her Psychiatrist's office takes about one hour. She went to Noosa for a holiday with her family for five nights and flew to the Sunshine Coast for that trip. She also visited a farm in Kangaroo Valley on one occasion. She travelled to Malaysia in July for one week with close friends as well. She also travelled to Malaysia in 2023 with a close friend.
Ms Knight reported that she does not socialise much; however, her friends and her parents frequently check on her. Her husband has been very supportive. She said that he is quite glad that she does not work with the police force anymore. She has lost a few friendships from her police academy; however, still has two friends from the police with whom she talks on the phone. She has been well supported by her other three to four friends whom she has been friends with forever.
Ms Knight reported that her attention ‘is not as great as it used to be.’ She added that she loved reading but now gets distracted after reading a page or two. Ms Knight scored 3/3 and three-word repeat and 2/3 on three-word recall.
On a typical day, she gets up at 6 am to get her kids up. She drops the kids at 7 am to the train station. She then returns and lies in her bed or goes for walks. She watches Netflix at times. She does her household chores at varying times throughout the day and then in the afternoon goes to pick up her kids, returns home and then has dinner and goes to bed at varying times.”
Findings on mental state examination were reported as follows:
“I reviewed Ms Knight via video. She engaged well during the assessment and was cooperative. She presented as a 46-year-old Caucasian female who looked the stated age. There was no evidence of any psychological, educational retardation. No abnormal motor movements like tics or mannerisms were noted. She was casually dressed in a grey sweatshirt. Her hair was tied at the back.
She was teary at times when describing the incidents at work. She reported her mood to be sad and low and her affect ranged from being teary to reactive at times. Her speech was spontaneous and normal in volume and tone. Her thoughts were logical and goal-directed. She currently reports ongoing ruminations, flashbacks, intrusive memories, anhedonia, insomnia, lack of attention, concentration and hyperarousal.
There was no evidence of any manic, psychotic or perceptual abnormalities. Ms Knight was orientated to time, place and person. She scored 3/3 in three-word repeat and 2/3 on three-word recall. She had insight in her cognition and her judgement was intact.”
In summarising the injuries and diagnoses, the Medical Assessor said:
“Ms Knight is a 46-year-old female who worked with New South Wales Police. During the course of her employment, she was exposed to a plethora of traumatic incidents including suicides, homicides, motor vehicle accidents, multiple deaths and disclosing the news of death to family members.
This impacted her mental health significantly. There were other incidents as well including the alleged bullying and harassment, which further deteriorated her mental health. At the time of assessment, Ms Knight presented with symptoms consistent with the diagnosis of Post-traumatic Stress Disorder, Major Depressive Disorder and Alcohol Use disorder.”
The Medical Assessor added: “Ms Knight has since received both biological and psychological interventions for her injuries and hence has reached maximum medical improvement.”
The Medical Assessor assessed 7% WPI.
She then turned to consider the other medical opinions and material before her and said:
“IME by Dr Ashwinder Anand dated 4 December 2023: “In my opinion, Ms Knight suffers from PTSD along with Major Depression because of cumulative exposure to multiple traumatic events over the years with the NSW Police Force which has been further compounded and exacerbated due to issues at her workplace.
I also noted that he calculated the WPI as 19%. Kindly note that my calculation differs in the area of travel. I have also noted that Dr Anand has miscalculated the WPI. He has calculated the median class value as 3; however, it should be 2 as he scored Ms Knight scores in self-care and personal hygiene, social recreational activities, travel and social functioning as class 2.
Letter by Dr Patrick Morris dated 5 December 2023. I have noted that Dr Morris mentioned that: “Ms Sanders has a very poor prognosis for a return to work within the NSWPF in any capacity. She has a better prognosis for improved quality of life and social functioning with further treatment. Her prognosis for return to work in non-trauma exposed work environments in the future will depend upon her response to further treatment.
IME by Dr Tanveer Ahmed dated 29 January 2024. I have noted that Dr Tanveer Ahmed did not calculate the WPI as he believed that she has not reached maximal medical improvement. Dr Ahmed mentioned that she has not received evidence-based treatment for her condition. I respectfully disagree, Ms Knight has since received intensive treatment both biological and psychological.
The Appellant’s Submissions
Travel
a. As is evidenced by the report of Dr Anand dated 4 December 2023, the appellant can only drive locally with apprehension, and went on a trip to Malaysia on the advice of treating practitioners to get her out of her local area which provides constant triggers of her condition and the jobs that she has attended. Upon arrival at that location, she was unable to get out of her room, which is evidenced in the report of Dr Ahmed dated 29 January 2024. It is noted that the trip was paid for by a friend, who organised a ticket for her.
b. Referring to the appellants updated statement of 24 October 2024, she orders grocery shopping by direct-to-boot, and if she forgets to place the order she drives to a Coles 20 minutes away to avoid seeing people she may know, even though her closest grocery store is 2km away (Woolworths).
c. Dr Verma’s assessment that she visits friends and drives to medical appointments in Wollongong is misguided. The appellant was only able to make an appointment with her now treating psychologist (Ros Hamilton) at Wollongong at the first point that she went off work, and was unable to choose a closer location. Due to her condition the appellant is paranoid to perform zoom/teams meetings as her fear that the NSWPF is somehow watching her computer. She is also unable to travel on public transport as it gives her extreme anxiety, and therefore the only choice available to her is to drive to her to her psychologist appointments in Wollongong for treatment. It is also noted that MA Verma asked no qualifying questions on this point. None of these critical details were inquired about or addressed by the MA during the assessments of the appellant.
d. Given the appellant’s clarification that her ability to travel is severely impacted, it would be more accurate to place her in Class 3 rather than Class 1.
Social Functioning
a. Due to the appellant’s severe PTSD, the appellant is unable to engage in social activities or maintain social friendships outside of friends. Prior to her injury, as evidenced in her statement, her social life was flourishing and following the injury it has vastly diminished. The appellant no longer has the capacity to organise things, has lost motivation, and is often reliant on her husband to push her to attend functions, but only with people she knows. She is unable to meet new people, and her husband is frustrated by the change in her mental state.
b. Given the appellant’s clarification, it would be more accurate to place her in Class 3 rather than Class [2].”
The respondent’s submissions
As stated earlier, the respondent contends that no errors were made, adding:
(a) No error can be discerned in the exercise of the Medical Assessor’s clinical judgment in the assessment of a Class 1 rating in the class of Travel. It accords with the criteria in Table 11.3 of the Guidelines, and is the best fit in that class noting the travel exhibited and conceded to by the appellant.
(b) Table 11.4 defines a Class 2 rating as: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
(c) In rating the appellant as a Class 2, the Medical Assessor said:
“Ms Knight reported that she does not socialise much however, her friends and her parents frequently check on her. Her husband has been very supportive. She said that he is quite glad that she does not work with the police force anymore. She has lost a few friendships from her police academy; however, still has two friends from the police with whom she talks on the phone. She has been well supported by her other three to four friends whom she has been friends with forever.”
(d) The Medical Assessor’s assessment is consistent with the evidence.
Discussion
Many of the appellant’s submissions are predicated on the acceptance of her further statement which we have rejected for reasons referred to above.
In addition, the Medical Assessor is correct in noting that:
“I have also noted that Dr Anand has miscalculated the WPI. He has calculated the median class value as 3; however, it should be 2 as he scored Ms Knight scores in self-care and personal hygiene, social recreational activities, travel and social functioning as class 2.”
Dr Anand’s assessments were 2, 2, 2, 2, 3, and 5, an aggregate of 16 with a median class value of 2, not 3 as he noted, making a total of 9% WPI.
This is not too dissimilar from the Medical Assessor’s assessments.
The history the appellant provided to the Medical Assessor as regards Travel is consistent with a Class 1 rating.
The Medical Assessor recorded:
“She leaves her house to pick up and grab her kids for grocery shopping and mostly does direct-to-boot delivery. She visits her friend as well and attends medical appointments. She is able to drive to Wollongong which is a 50-minute drive and driving to Dr Morris her Psychiatrist's office takes about one hour. She went to Noosa for a holiday with her family for five nights and flew to the Sunshine Coast for that trip. She also visited a farm in Kangaroo Valley on one occasion. She travelled to Malaysia in July for one week with close friends as well. She also travelled to Malaysia in 2023 with a close friend.”
The descriptor for a Class 1 reads: “No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
For a Class 2 it reads: “Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
For a Class 3 it reads: “Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
On the history obtained by the Medical Assessor, there is no evidence to suggest that
Ms Knight falls into either a Class 2 or 3.There is no evidence that she requires a support person or that she is only able to travel in a familiar area.
Clause 1.6 of the Guidelines sets out the key principles of permanent impairment assessments. It states: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”
In addition, we also note that Dr Anand ascribed a Class 2 rating in this category, not a Class 3 as urged upon us by the appellant.
The Medical Assessor conducted a thorough clinical assessment of Ms Knight at the time of her appointment on 18 September 2024.
For these reasons we see no error by the Medical Assessor in her assessment in this category.
Turning next to the category of Social Functioning, the Medical Assessor assessed a Class 2 rating and said:
“Ms Knight reported that she does not socialise much; however, her friends and her parents frequently check on her. Her husband has been very supportive. She said that he is quite glad that she does not work with the police force anymore. She has lost a few friendships from her police academy; however, still has two friends from the police with whom she talks on the phone. She has been well supported by her other three to four friends whom she has been friends with forever.”
The appellant submits that a Class 3 rating is more appropriate.
The descriptor for a Class 3 reads:
“Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
For a Class 2 it reads: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
In this case however, there is simply nothing in the evidence to support a Class 3 rating.
The Medical Assessor clearly acknowledged the reduction in Ms Knight’s social functioning, at the same time noting that her husband was supportive and that she had retained several long term friendships.
Again, we note that Dr Anand assessed a Class 2 rating.
Although not bound by the opinions of other doctors, they nonetheless form part of the evidence which we must consider.
In addition, the basis for the reservation in Chapter 11.2 of the Guidelines 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, must be considered.
In our view, the appellant’s submissions are no more in the final analysis than the expression of a difference of opinion about which reasonable minds might differ. (See Diaz v SydneyInternational Container Terminals Pty Ltd [2024] NSWPICMP 437.)
For these reasons, the Appeal Panel has determined that the MAC issued on
26 September 2024 should be confirmed.
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