Lee v Secretary, Department of Education
[2024] NSWPICMP 596
•22 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lee v Secretary, Department of Education [2024] NSWPICMP 596 |
| APPELLANT: | Dorcas Lee |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 22 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s rating of appellant’s impairment in employability under the psychiatric impairment rating scale (PIRS) involved error; Held – error found; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 June 2024 Dorcas Lee, 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 31 May 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury due to events that occurred whilst she was employed as a school teacher at the Cherrybrook Technology High School between approximately 2003 and November 2021. The Secretary of the Department of Education, the respondent, is in accordance with s 26(1) and Part 1 of Schedule 1 of the Government Sector Employment Act 2013, the employer of the appellant.
On 21 June 2023 the appellant’s solicitors wrote to both the Cherrybrook Technology High School and the insurer of the respondent advising them that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 22% whole person impairment (WPI) that the appellant claimed to have from her injury. The appellant’s solicitors enclosed with their letter a report of psychiatrist Dr Christopher Canaris dated 3 May 2023 in support of the appellant’s claim.
The insurer, in notices it issued to the appellant on 6 October and 17 November 2023, denied the respondent was liable to pay compensation to the appellant for permanent impairment. It relied on reports dated 22 September and 15 November 2023 prepared by psychiatrist Dr Alexy Sidorov.
Following receipt of the last notice, the appellant’s solicitors lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD) seeking the Commission determine the appellant’s claim against the respondent for compensation for permanent impairment. A delegate of the President of the Commission referred the appellant’s claim to the Medical Assessor to assess various medical disputes between the parties relating to the appellant’s claim for compensation.
The Medical Assessor examined the appellant on 27 May 2024 to conduct that assessment and, as said, issued the MAC on 31 May 2024. The issue that has been raised in the appellant’s Appeal against the medical assessment the Medical Assessor conducted relates to the Medical Assessor’s rating of the appellant’s impairment in the Psychiatric Impairment Rating Scale (PIRS) category of employability, in which the Medical Assessor rated the appellant’s impairment as Class 2. The Medical Assessor provided the following reasons for her rating in the PIRS rating form within the MAC:
“Ms Lee currently works as a support teacher and works three days a week. She reported that there have been no concerns about her performance. She, however, takes a long time to complete tasks at school. I believe that she has mild impairment as she has been able to work in a different environment from her pre-injury job aka at Cherrybrook Technology High School. The duties required are comparable as those of the preinjury job”.
Within the body of the MAC the Medical Assessor also recorded that the appellant had reported that she had been commenced on an antidepressant in 2022 and that her mental health did not immensely improve and that she was “forced to return back” to work at Glenwood High School. The Medical Assessor also recorded that the appellant has lost confidence in her ability to work in the way she did before her injury and that she finds it hard to stand in front of a class and feels hopeless. The Medical Assessor also recorded that in her current position as a support worker the appellant works with teachers the whole of the day to help students when she is required.
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 it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.
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 submitted that the history the Medical Assessor detailed in the MAC reveals that in her current work she is not performing the duties of her pre-injury employment. The appellant also referred to a statement she signed on 8 April 2024 wherein she described what tasks she is required to do in her current work. The appellant submitted that her impairment in employability does not accord with an impairment described by the examples in Table 11.6 for a Class 2 impairment. The appellant submitted that the Medical Assessor wrongly rated her impairment in employability as Class 2 and that the correct rating is Class 3 because she cannot work in the same position and because she works in a different position that requires less skill and is qualitatively different.
In reply, the respondent submitted that the nature of the duties the appellant currently performs is that of a teacher in a support role and she does that for three days a week. The respondent noted that the descriptors provided in Table 11.6 of the Guidelines are “merely examples and are not intended to represent a precise formula by reason of which a rating is made”. The respondent submitted that the appellant has simply picked over the reasoning of the Medical Assessor and drawn attention to matters with which she does not agree. The respondent submitted that what is important is the clinical judgment of the Medical Assessor in assessing the appellant’s present condition, diagnosis and severity. The respondent submitted that when the MAC is read as a whole the Medical Assessor has used his clinical judgment on the day of the assessment and appropriately rated the appellant’s impairment in employability.
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.
The examples provided in Table 11.6 of the Guidelines for a Class 2 impairment in employability are as follows:
“Mild impairment. Able to work fulltime but in a different environment from that of the pre-injury job. The duties require comparable skills and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (e.g. no longer happy to work with specific persons, or work in a specific location due to travel required).”
The examples provided in Table 11.6 for a Class 3 impairment are:
“Moderate impairment; cannot work at all in the same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualifiedly different (e.g. less stressful).”
The Appeal Panel agrees with the appellant’s submission that the Medical Assessor erred by rating her impairment in the PIRS for employability as Class 2, rather than Class 3. The history the Medical Assessor obtained, indicates that the appellant is unable to work fulltime or in a job that requires comparable skill and intellect as those that she did in her pre-injury job. The history the Medical Assessor obtained indicates that the appellant would be unable to work as a teacher.
The work the appellant currently performs as a support teacher is qualitatively different from the work she previously did as a teacher. This is confirmed by what the appellant has said in her statement of 8 April 2024, wherein she says that the work of a support teacher is “one-quarter of what a main teacher’s role is in a classroom”. Further, she says in her statement that she does not have to speak in front of a classroom and manage students as a support teacher. She is not required to perform extra-curriculum activities and is not required to speak with parents or write reports. Her role requires her to assist the main teacher in the classroom. She consequently performs a subsidiary role. Her present role is a step down from what she did previously as a teacher and is a different role.
As said, the Appeal Panel considers that her impairment in employability correlates with an impairment described by the examples for a Class 3 impairment in that the appellant is unable to work in the same position. She works in a role that requires less skill and is qualitatively different. She does work more than 20 hours a week, but only around one or so hours in excess of that.
Hence, the Appeal Panel in correcting the demonstrable error in the MAC rates the appellant’s impairment in employability as Class 3. The Appeal Panel notes that the Medical Assessor’s ratings of the appellant’s impairment in the other PIRS categories were 2 in self-care and personal hygiene, 3 in social and recreational activities, 3 in travel, 2 in social functioning and 2 in concentration, persistence and pace. That means that the median of her Class score now increases to 3 and the aggregate to 15, which in accordance with Table 11.7 of the Guidelines equates to a whole person impairment of 15%.
For these reasons, the Appeal Panel has determined that the MAC issued on 31 May 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2984/24 |
Applicant: | Dorcas Lee |
Respondent: | Secretary, Department of Education |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric and psychological disorders | 8/11/2021 | Chapter 11 | - | 15% | - | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Marshal Douglas
Member
Nicholas Glozier
Medical Assessor
Douglas Andrews
Medical Assessor
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