Liew v Amber Group Australia Pty Ltd
[2025] NSWPICMP 113
•24 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Liew v Amber Group Australia Pty Ltd [2025] NSWPICMP 113 |
| APPELLANT: | Shirley Liew |
| RESPONDENT: | Amber Group Australia Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 24 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; both parties agreed Medical Assessor (MA) erred by making a deduction under section 323(1) for a pre-existing condition; whether the MA also erred with respect to his ratings of appellant’s impairment in self-care and personal hygiene, social and recreational activities, and employability; Held – Appeal Panel held that the MA erred with his ratings for those categories; appellant re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 December 2024 Shirley Liew, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Anku Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 November 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 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 (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 commenced employment with Amber Group Australia Pty Ltd, the respondent, in 2016 as a local Australian director. In 2020 she was appointed as the Chief Executive Officer (CEO) of the respondent. Due to the stresses of her work as the CEO and the manner in which she was treated by the group managing director of the respondent, she suffered a psychological injury. She ceased her employment in June 2021.
On 18 January 2024 the appellant’s solicitors emailed a letter to the respondent’s insurer advising it that the appellant claimed compensation under s 66 of the Workers CompensationAct 1987 (the 1987 Act) for 26% whole person impairment (WPI) she said she had from her injury. The appellant’s solicitors further advised that the appellant relied on a report of psychiatrist Dr Mukesh Kumar dated 15 December 2023 in support of her claim. The appellant’s solicitors enclosed that report with their correspondence. In his report Dr Kumar revealed that he had assessed the degree of the appellant’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), in regards to which he rated the appellant’s impairment in self-care and personal hygiene as Class 3, in social and recreational activities as Class 4, in travel as Class 2, in social functioning as Class 3, in concentration persistence and pace (CPP) as Class 3 and in employability as Class 5.
The respondent’s solicitors arranged for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht on 1 May 2024 so as to respond to the appellant’s claim. In a report dated 17 June 2024 Dr Bisht advised that he considered the appellant had not achieved maximum medical improvement and would be unlikely to do so before the end of the year. He indicated that the degree of her permanent impairment should be assessed at that stage.
On 1 July 2024 the insurer wrote to the appellant advising her that “based on Dr Bisht’s report dated 1 May 2024” the degree of her permanent impairment from her injury “is not currently capable of assessment”. The Appeal Panel infers that the insurer’s refence to the date of Dr Bisht’s report as 1 May 2024 is a typographical error and that the correct date reference is 17 June 2024, noting that the only report in evidence before the Appeal Panel of Dr Bisht is dated 17 June 2024 and also noting the date of the insurer’s letter.
Be that as it may, following receipt of that correspondence, the appellant initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 19 September 2024. By that she sought the Commission determine her claim for compensation for permanent impairment from her injury and also a claim she had made for payment of weekly benefits.
The matter was referred to a Commission member, namely Ms Diana Benk, who on 21 November 2024 determined, with the consent of the parties, that the matter be remitted to the President of the Commission so that it could be referred to a Medical Assessor to assess the medical disputes relating to the appellant’s claim for compensation for permanent impairment. The Certificate of Determination, in which the member’s determination is recorded, also noted that the appellant’s claim for weekly payments of compensation had been withdrawn and that the respondent had agreed to pay her arrears from 18 December 2023.
The Commission thereupon issued a referral to the Medical Assessor requiring him to assess the medical disputes between the parties. He conducted his examination of the appellant on 18 November 2024 and, as said, issued the MAC on 26 November 2024. In that he certified that he assessed the overall degree of the appellant’s permanent impairment from her injury was 15% WPI, but he made a deduction of 10% to that figure, purportedly pursuant to s 323(1) of the 1998 Act, such that he assessed the degree of the appellant’s permanent impairment from her injury is 14% WPI.
The Medical Assessor revealed that his assessment of the appellant’s degree of permanent impairment was done by reference to the PIRS. His ratings of the appellant’s impairment in the several PIRS categories and his reasons for his ratings were as follows:
PIRS category
Class
Reasons for decision
Self care and personal hygiene
2
As described in the main body of the report, there is mild impairment. She describes significant issues with self-care and personal hygiene, but she is the main carer for her children and says that she does not get any support from her husband. Therefore, it can be reasonably concluded that she eats without prompting and independently manages some aspects of self-care.
Social and recreational activities
3
As described in the main body of the report, there is moderate impairment. She does her shopping online. She does not leave the house much apart from going to the doctor. She attended her father-in- law’s birthday party last month but struggled. She tries to go out for
walks sometimes. She has not involved herself in her children’s birthday celebrations for a few years. She calls her family in Malaysia occasionally and scrolls social media. She was reportedly run over by a skier in August 23, indicating that she was at a ski resort at the time.
Travel
1
As described in the main body of the report, there is a minor deficit attributable to normal variation in the general population. She avoids driving because of lack of concentration but does not have any fear of travel otherwise. She managed to travel internationally this
year. Lack of concentration has been rated separately on PIRS.
Social functioning
3
As described in the main body of the report, there is moderate impairment. She describes the breakdown of her marriage and has become distant from her children. She keeps in touch with her family in Malaysia and supported her mother in the latter’s surgery.
Concentration, persistence and pace
3
As described in the main body of the report, there is moderate impairment. She states that she burns food and makes mistakes while dealing with finances. She appeared to struggle to remember the names of her treating professionals but could spell names and remembered her work history well. She has lost positions on boards and has let some of her registrations lapse, owing to a loss of concentration. However, she asserts that she is alone and has no help from her husband despite living in the same house. Considering her pre-morbid level of functioning, the impairment is considered moderate.
Employability
3
As described in the main body of the report, there is moderate impairment. She cannot return to her preinjury role and cannot take up a similar role with another organisation. However, she can work for up to twenty hours in a less stressful environment in a role that does not have any responsibility to oversee human resource matters or running a company.
The Medical Assessor also noted within the history he recorded in the MAC that the appellant tries to do things around her house, and tries to tidy things and make tea but that she makes mistakes. The Medical Assessor recorded that the appellant leaves her bed half made and then does laundry but takes a long time to do things. The Medical Assessor recorded that the appellant employs a cleaner and that she eats a lot of take-away food. The Medical Assessor recorded that she burns the good meat when she tries to cook and that she is unable to follow instructions. The Medical Assessor recorded that the appellant misses cleaning her teeth sometimes and washes her hair once a week and showers once every couple of days. The Medical Assessor recorded that the appellant takes her medication regularly at night.
The Medical Assessor noted that the appellant has two sons living with her, who were aged 16 and 13 at the time of assessment. The Medical Assessor recorded that the appellant converses little with her sons.
The Medical Assessor noted that the appellant separated from her husband two years prior to his assessment, and that notwithstanding their separation, the appellant and her estranged husband remain living in the same house and do not have anything to do with each other. The Medical Assessor nevertheless commented that he observed the appellant was still wearing her wedding ring, which he “pointed out” to her, and to which her response was she keeps her separation “under wraps” as she does not want to explain it to the children. The Medical Assessor said that he found her explanation inconsistent.
The Medical Assessor further recorded in the history he detailed in the MAC that the appellant can enjoy walking but struggles with the motivation.
The Medical Assessor noted from the appellant’s general practitioner’s records that the appellant’s general practitioner thought the appellant would be ready to return to work at the end of January, and that in February 2023 the appellant was working four hours three days a week. The Medical Assessor also noted that the general practitioner’s records indicated that the appellant was not working in May 2023 because of a broken thumb. The Medical Assessor noted that the appellant’s general practitioner recorded in August 2023 that the appellant was run over by a skier and had broken her ribs and her wrist and that the appellant was unable to work due to physical issues. The Medical Assessor noted that the general practitioner also recorded that at that time the appellant had ongoing suicidal ideation.
The Medical Assessor noted that Dr Kumar, who is the appellant’s treating psychiatrist, had advised in his report of 15 December 2023 that the appellant had no capacity to work in any employment and that she was unable to participate in re-training and rehabilitation. The Medical Assessor recorded that the appellant said that she is unable to work and has not been engaging in professional development activities and has lost some professional registrations.
The Medical Assessor observed that the documentary evidence before him did not include any report from the appellant’s treating psychologist.
The Medical Assessor stated in the MAC that in his opinion the appellant did not have any previous injuries, pre-existing conditions and/or abnormalities. He nevertheless reasoned that there should be a deduction made under s 323(1) of the 1998 Act, providing this explanation:
“Although there was no pre-existing condition, Mrs Liew documentation describes several non-work-related injuries, including arthralgia, fractures and which increased psychological distress. Physical injuries have been consistently described as a cause for the inability to work. Being run over by a skier indicates that she skied in the winter of 2023. Therefore, it is reasonable to attribute a degree of impairment to subsequent non-work-related factors.”
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 appellant should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, concluded that the MAC contains a demonstrable error, which the Appeal Panel would need to correct. In order to correct that error, the Appeal Panel considered it needed further clinical data which could only be obtained through a further examination of the appellant. The Appeal Panel appointed one of its members, namely Medical Assessor Graham Blom, to conduct that assessment, which he did on 14 February 2025. His report to the Appeal Panel is copies below under the heading Findings and Reasons.
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.
The appellant observed that the Medical Assessor stated that she had “nil” previous injuries, pre-existing conditions and/or abnormalities but nevertheless made a deduction under s 323(1) of the 1998 Act which he was wrong to do. The appellant submitted that without there being evidence of a pre-existing injury, condition or abnormality, a deduction under s 323(1) cannot be made.
The appellant further submitted that the Medical Assessor wrongly took account of the fact that there were no reports in evidence before him from her treating psychologists. The appellant submitted that this was irrelevant and that it was open to the Medical Assessor to consult with any practitioner who has treated her.
The appellant submitted that the Medical Assessor failed to disclose his reasoning for why his conclusions and his assessment of her impairment varied from those of Dr Kumar.
The appellant submitted that the Medical Assessor’s finding that she can work up to 20 hours a week in a less stressful environment in a role where she would not have responsibility to oversee human resource matters or run a company contradicts the evidence, that evidence being specifically Dr Kumar’s opinion, her statement and the most recent Certificate of Capacity that was issued relating to her for the period of 10 August 2024 to 9 September 2024.
The appellant noted that the Medical Assessor’s rationale for his rating her impairment in self-care and personal hygiene included that she is the main carer of her children and does not get support from her husband, from which the Medical Assessor deduced that she eats without prompting and independently manages some aspects of her self-care.
The appellant also noted that the history the Medical Assessor obtained included that her husband buys the groceries. The appellant submitted that this could not support the Medical Assessor’s opinion that “it can be reasonably concluded that she can manage aspects of her self-care”.
The appellant also referred to the Medical Assessor’s reference to an entry in the general practitioner’s records made on 15 August 2023, specifically that the appellant was “run over by skier”, and from which the Medical Assessor inferred that the appellant was then at a ski resort. The appellant submitted that in the context of the appellant’s injury, the Medical Assessor ought not to have drawn that inference, at least not without giving the appellant the opportunity to address the issue.
In reply, the respondent agreed with the appellant’s submission that the Medical Assessor erred by making a deduction under s 323(1) of the 1998 Act.
The respondent submitted that the appellant’s submissions are otherwise an attempt by the appellant to cavil with the Medical Assessor’s clinical judgment.
The respondent further submitted that the Medical Assessor provided adequate reasons for his ratings of the appellant’s impairment in all the PIRS categories and his reasoning did not involve any error of law.
The respondent submitted that the Medical Assessor’s rating that the appellant’s impairment in self-care and personal hygiene is mild is a reasonable interpretation of the appellant’s functional limitation and is based on the Medical Assessor’s clinical judgment. The respondent submitted that the appellant is able to live independently and look after herself adequately. The respondent submitted that the Medical Assessor’s assessment fell within his “professional discretion and expertise” and was “based on a holistic view of the evidence”.
The respondent submitted that the Medical Assessor’s assessment of the appellant’s impairment in social and recreational activities was justified on the evidence presented. The respondent noted that the appellant had attended her father-in-law’s birthday in the month preceding the Medical Assessor’s examination, and had called her family in Malaysia and had participated in skiing in August 2023, and submitted that the appellant’s impairment in social and recreational activities is consistent with a Class 3 impairment. The respondent submitted it was open to the Medical Assessor to conclude that the appellant had participated in a social activity of skiing in August 2023 based on the clinical records made available to the Medical Assessor.
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 Appeal Panel accepts the submissions of both parties that the Medical Assessor made an error by making a deduction under s 323(1) of the 1998 Act. Section 323(1) could only be engaged if a proportion of the appellant’s permanent impairment from her injury was due to a previous injury or a pre-existing condition or abnormality. As the Medical Assessor noted in the MAC, the appellant did not suffer a previous injury, a pre-existing condition or abnormality. Hence, s 323(1) could not be engaged. This error on the part of the Medical Assessor amounts to a demonstrable error.
The Appeal Panel does not agree with the appellant’s submission to the effect that the Medical Assessor placed weight on the fact that there was not in evidence before him any reports from her psychologist. When read in context, the Medical Assessor was merely noting that he did not have any reports from her psychologist. It was a neutral observation in terms of his assessment of the appellant’s degree of permanent impairment from her injury. That is he placed no weight on this fact one way or the other. It did not influence his assessment of the appellant’s permanent impairment whatsoever.
The Appeal Panel also rejects the appellant’s submission that the Medical Assessor erred by failing to explain why his conclusions relating to the appellant’s impairment and his assessment of the appellant’s impairment differed from the assessment Dr Kumar made. The Medical Assessor was required to explain his reasons for his assessment of the degree of the appellant’s permanent impairment, which did not require him to explain why he did not reach an opinion he did not form. That is, he was not required to explain why he did not come to the same view as Dr Kumar. His task was to make his assessment of the appellant’s impairment and not to opine on the correctness of the assessment of Dr Kumar.[1] In any event, insofar as the Medical Assessor has explained the reasons for his assessment, it is apparent, by comparing his reasons for his assessment with the reasons Dr Kumar provided for his assessment, why he has a different view relating to the appellant’s permanent impairment than Dr Kumar.
[1] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 at [47] and [56].
That said, however, the Medical Assessor’s in formulating his opinion of the degree of the appellant’s permanent impairment from her injury, was required to have regard to all relevant material before him. That obligation on his part did not require him to refer to every piece of evidence, but noting that Dr Kumar is the appellant’s treating psychiatrist, it seems to the Appeal Panel that his obligation did require him to grapple with the clinical history Dr Kumar had set out in his reports insofar as they related to the appellant’s condition and current function. Of importance in this case, it seems to the Appeal Panel, is that in a report of 6 August 2024 Dr Kumar had noted that the appellant required inpatient treatment because there had been a recent deterioration in her condition and that her symptoms had become much more prominent. The Medical Assessor did not deal adequately with that relevant matter of the appellant’s history. It was a significant aspect of the appellant’s recent clinical history and was germane to the appellant’s function in employability.
Further, in the Appeal Panel’s view, and consistent with what the appellant submitted, the Medical Assessor also ought to have regard to the clinical history the appellant’s general practitioner set out in a Certificate of Capacity dated 16 August 2024 and relating to the period 10 August 2024 to 9 September 2024, wherein the appellant’s general practitioner noted that on 12 July 2024 the appellant was in need of a period of inpatient mental health management under a psychiatrist to assist with mood and medication management. That too was a recent aspect of the appellant’s condition relevant to her function in employability.
Further still, the Medical Assessor ought to have had regard to the appellant’s statement, which she signed on 15 August 2024, wherein she said that she could not see herself returning to any form of work. She expressed that view in the context of the symptoms she was suffering from her psychiatric illness. That evidence relates to circumstances that occurred around three to four months before the Medical Assessor conducted his examination of the appellant.
In the Appeal Panel’s view, these matters of the appellant’s recent clinical history were germane to the Medical Assessor’s assessment and ought to have had considerable weight such that the Medical Assessor ought to have discussed these matters because, at face value, it seems to the Appeal Panel that these matters are inconsistent with the Medical Assessor’s conclusion that the appellant could work up to 20 hours in a less stressful environment in a role that does not have any responsibility to oversee human resource matters or running a company. In the Appeal Panel’s view, because the Medical Assessor did not engage with this specific evidence that involved recent and germane events and that were relevant to the appellant’s function in employability, the Medical Assessor made an error with respect to his rating of the appellant’s impairment in employability, and that error amounts to a demonstrable error.
The Appeal Panel also agrees with the appellant’s submission to the effect that the Medical Assessor was not justified to infer from the fact that she provides some care for her children and does not get support from her husband, that she is able to eat without prompting and is able independently to manage some aspects of her self-care. It does not follow from the fact that a person afflicted with psychiatric illness is able to provide care to others that that person’s care of him or herself is not moderately or severely impaired. Indeed, the expert members of the Appeal Panel have experience with that particular circumstance, that is a parent inflicted with a psychiatric illness managing the care of their children but being moderately or severely remiss with respect to their own care. The Appeal Panel also notes from the appellant’s statement that she said she “cannot do groceries”. She said that she lacks motivation with respect to her self-care and could not “get my logic going even in cooking”. She also said that her “family members have taken on most of the responsibility around the house”, which indicates she is not providing a high level of care to her children, contrary to what the Medical Assessor said.
The Medical Assessor in the history detailed in the MAC noted that the appellant tries to do things around the house and tries to tidy up things and make tea but makes mistakes and that she leaves the bed half made and then does laundry. The Medical Assessor also noted that the appellant “burns the good meat when she tries to cook”. That indicates to the Appeal Panel that the appellant is not attending to elements of her self-care.
The Appeal Panel consequently considers the Medical Assessor’s reasons for his rating of the appellant’s impairment in self care and personal hygiene is not supported by the reasons he provided, and his rating involves error.
The Appeal Panel also accepts the appellant’s submission that the Medical Assessor erred when rating her impairment in social and recreational activities by inferring, without putting it to the appellant at the time of the examination, that she had been run over by a skier and that she was that time, being August 2023, at a ski resort. Whilst clinical records of a worker’s treating clinicians are valuable to a Medical Assessor in composing the relevant clinical history relating to a worker’s injury and valuable in guiding a Medical Assessor with respect to the conduct of the examination, some caution must be exercised by the Medical Assessor if the Medical Assessor would be placing significant weight on the record when rating a worker’s impairment in a particular PIRS category for the reasons detailed in Mason v Demasi.[2] In the Appeal Panel’s view, noting that the Medical Assessor relied on the appellant being at a ski resort in August 2023, which was more than a year prior to his assessing the appellant’s function in social and recreational activities, and there being no reference to that event in the material before the Medical Assessor other than the general practitioner’s records, the Medical Assessor ought to have explored with the appellant the extent to which she engages or is able to engage currently in skiing. The fact that the Medical Assessor did not do so is, in the Appeal Panel’s view, an error that amounts to a demonstrable error.
[2] [2009] NSWCA 227 at [2].
Given that the Medical Assessor has erred in assessing the degree of the appellant’s permanent impairment from the injury, the Appeal Panel must correct that error and, as discussed above, the Appeal Panel appointed Medical Assessor Blom to examine the appellant to obtain necessary clinical data to enable the Appeal Panel to do that. Medical Assessor Blom’s report to the Appeal Panel is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W26442/24 |
Appellant: | Shirley Liew |
Respondent: | Amber Group Australia Pty Limited |
Date of Determination: | 14 February 2025 |
Examination Conducted By: | Graham Blom |
Date of Examination: | 14 February 2025 |
1. The workers medical history, where it differs from previous records
Mrs Liew confirmed the brief history taken by the MA, but given the issues raised in the appeal I undertook a more detailed history of the development of her symptoms and of the course of her treatment. Ms Liew said that she began to develop symptoms around January 2021 following prolonged bullying, harassment and undermining by her manager. This was associated with her having to work extremely long hours, in what she described as an extremely stressful environment.
Initially she said that she began to experience muscular tension and particularly severe headaches, associated with disturbance of her sleep, increasing anxiety with ruminations about what was happening at work and instability of her mood with uncontrolled episodes of tearfulness. Nevertheless, she said that she continued to work and attempted to ‘put aside’ her feelings and symptoms. This unfortunately was unsuccessful, and her symptoms deteriorated, marked by worsening of all the above symptoms, but complicated by markedly increased irritability both at work and particularly at home. This led to a deterioration in her relationship with her husband, with increased conflict and eventually led to a situation where they separated but continued to live in the same house, for financial reasons and to care for the children (who are now aged 16 and 14 years). Ms Liew said that she attempted to shield the children from what had happened and particularly her deteriorating mental health. At some point during this period, she consulted her general practitioner and was initiated on the antidepressant medication amitriptyline – amitriptyline is an antidepressant from the tricyclic class, it is strongly sedative and is useful in some cases in managing pain. Nevertheless, her sleep disturbance continued as did her headaches and gradually she began to develop temporo-mandibular(TMJ) pain and episodes of locking of her jaw.
She left work in July 2021, but her symptoms continued to deteriorate, because she said that the bullying and harassment continued and furthermore she was subjected to a very substantial financial claim, which she said was both unfair and harassing, and which caused her further substantial anxiety.
In 2021, she was referred initially to a psychologist, ‘Amara’ (she was unable to remember the last name) whom she consulted every 2 to 3 weeks for about two years. From her description the psychologist was using CBT techniques as well as supportive therapy, but there was little overall improvement in her symptomatology. At the same time her general practitioner trialled her on various antidepressant medications, including escitalopram, which she remained on for some time. She was also prescribed a variety of codeine-based analgesics for her headaches at least for a period. Her TMJ joint pain and jaw-locking were investigated but there was no obvious damage, and the pain and locking were thought to be due to clenching and grinding of her teeth.
In 2023 her psychologist wanted her to undertake some form of rehabilitation to assist her in socialising as she had become increasingly withdrawn and avoidant. The insurer however insisted that this be part of a return-to-work program. She found this extremely difficult and overwhelming and if anything, following this his symptoms further deteriorated as she felt great shame and a sense of failure. She said at this point she felt that her life was falling apart and her avoidance and difficulties with social interaction worsened. She said she was increasingly irritable, and because of this she became more withdrawn even within her own home. She began spending considerable amounts of time in her bedroom. She felt unable to adequately or appropriately regulate her emotions, both her irritability and her tearfulness. Her self-care and personal hygiene deteriorated, and she felt increasingly hopeless, developing passive suicidal ideation. Sometime in 2023, her mother who lives in Malaysia had a significant cardiac event and required cardiac surgery. Ms Liew said that she was ‘summonsed’ to Malaysia and that she and her family travelled there for about 7 – 10 days. Her mother recovered satisfactorily from the surgery.
In 2024, as her symptoms showed little improvement, she began to feel increasingly hopeless she said, which led to deteriorating suicidal ideation. She described a sense of feeling overwhelmed, and feelings of failure and shame. This culminated in mid-2024 in her being scheduled, under the Mental Health Act. She only remained in hospital for about 24 hours, having received significant sedation. She was then discharged for follow-up by the Community Mental Health team. Initially they consulted her several times/week gradually this contact was reduced and ceased after one or two months.
During 2023, because of her failure to improve, she changed psychologist, beginning to consult a psychologist Ms Bhasin whom she began seeing every three or four weeks. She was also referred to a psychiatrist, Dr Kumar, either in late 2023 or early 2024 and has continued to see him till the present. Dr Kumar trialled a variety of medications including antidepressants and various forms of sedation. Despite this combination of various treatments, both psychological and medical there has been little overall improvement in her symptomatology or level of impairment.
2. Current Treatment
Ms Liew continues to consult Dr Kumar on a regular basis seeing him every four – six weeks. She is currently prescribed desvenlafaxine (an antidepressant agent), 50 mg/day and quetiapine (a sedative antipsychotic, often used to assist sleep), 25 mg/night. She currently only takes Panadol-osteo for headaches and jaw pain having ceased all codeine-based medications.
She consults her psychologist, Ms Bhasin every 2 – 3 weeks.
She previously received physiotherapy for her TMJ problems but this has ceased. She was prescribed a splint which she wears regularly.
3. Current Symptoms
Ms Liew continues to complain of substantial depressive symptomatology. She describes persistently low mood with marked loss of motivation and low levels of energy. She struggles to feel any pleasure in life. She is forgetful, distractible and struggles to persist in tasks, which can be problematical as she sometimes forgets what she has started, for example cooking or leaving the water running. She said that she has ‘no confidence’ and feels a great sense of shame about her current condition. She continues to suffer from disturbed sleep, regularly waking in the early morning hours and struggling to return to sleep. She often lays awake ruminating and worrying. She is withdrawn and very avoidant and said that she spends considerable amounts of time in her own room, partly to avoid her husband with whom there is a considerable degree of conflict. She is irritable and easily frustrated and says that she struggles to deal with people because of this.
She feels ‘foggy in the head’ and generally has difficulties with both concentration and memory, complicated by her marked distractibility.
She continues to describe feelings of hopelessness and worthlessness. This is associated with ongoing passive suicidal ideation – she described a sense of seeing no point in living and often feels overwhelmed by feelings of shame and failure.
Ms Liew does not drink alcohol, she does not smoke cigarettes and does not use illicit drugs. She denies abusing prescription medication.
4. Additional history since the original Medical Assessment Certificate was performed
There have been no substantial changes in her circumstances or her symptoms and impairment, since the MAC was undertaken in November 2024.
5. Findings on clinical examination
Ms Liew was consulted via teleconference using the Teams App. Ms Liew had some difficulty initially in connecting but after the connection was established there was no further significant difficulties. The quality of the connection was reasonable, and I was able to satisfactorily undertake my assessment. The assessment lasted 75 minutes.
It was difficult to obtain a clear history from Ms Liew because of her level of agitation and distractibility. She was frequently tearful during the interview and generally tended to be somewhat overinclusive in her answers and repetitively returned to her deep sense of injustice about what had happened to her and her sense of shame and loss, particularly of her career and financial loss.
She was cleanly dressed but her hair was uncombed.
She was clearly depressed with marked tearfulness and distress. She frequently expressed feelings of hopelessness, shame and failure. Whilst she was not actively suicidal, nevertheless she expressed a sense of pointlessness and hopelessness in her life.
She struggled to focus and was highly distractible. Whilst she persisted throughout the interview, this was only achieved with difficulty, and I had to redirect her to the issues I was attempting to clarify on several occasions. She described a subjective feeling of feeling ‘foggy in the brain’ and felt she struggled in making decisions.
The MA, in his original assessment, raised issues relating to Ms Liew’s consistency of presentation. There were times when she appeared to contradict herself, in this interview, but this appeared to me related more to her distractibility, level of distress and difficulty in focusing and persisting rather than reflecting an attempt to mislead.
6. Diagnosis
Ms Liew meets the diagnostic criteria for Major Depressive Disorder – chronic. This diagnosis is made because of the presence of a persistently low mood with significant loss of interest and pleasure, marked insomnia, loss of energy and motivation, feelings of worthlessness hopelessness and guilt with difficulty in concentrating and recurrent thoughts of life not been worth living sometimes associated with clear-cut suicidal ideation.
7. Activities of daily living
Ms Liew continues to live with her husband and two teenage children although she describes the relationship with her husband as being one of estrangement and that they are separated but continue to live together for financial reasons and because of their children. She says that she has only limited contact with her husband and that he tends to take most of the responsibility for the children.
I.Self care and Personal Hygiene.
She said that her husband does most of the cooking and sometimes she will eat what is left over. She does not eat with the family anymore, preferring to wait till they are finished. She otherwise eats whatever is in the fridge or orders delivery food. She tends to eat calorie dense food and that combined with her lack of activity has resulted in weight gain of between 5 and 7 kg. Her hygiene and general self-care are quite compromised. She said that she often does not shower for days on end because she lacks motivation and often just forgets. Her children sometime comment on her malodorous state. She said that she also often forgets to clean her teeth. She would struggle to live completely independently. This reflects moderate impairment, class 3 is appropriate.
II.Social and Recreational activities.
She said that she rarely goes out socially as she finds social interactions too much of a struggle. She is also anxious about her irritability and general emotional dyscontrol. She said that previously she used to go dancing and would have friends around for dinner but has ceased -these activities. She said that friends sometimes still contact her by SMS but she avoids actually meeting them. The most recent social events she attended was about three months ago when she went to her father-in-law’s birthday with the rest of her family. She said that she felt obliged to attend this but remained withdrawn throughout the party. As mentioned she had flown to Malaysia the previous year. She is not travelled overseas since then and denies other social contacts. She is able to leave her house and can tolerate contact with others although prefers to avoid it. This is moderate impairment; Class 3 is appropriate.
III.Employability.
She continues to experience a wide range of depressive symptomatology including tearfulness and irritability, loss of motivation and difficulties with concentration and focus. She is markedly avoidant and withdrawn and finds social interactions a struggle. She remains vulnerable to deterioration of her symptoms and re-emergence of active suicidal ideation. For all these reasons I do not believe that she is capable of working at all, now or in the foreseeable future. This is total impairment, Class 5.
Ms Liew’s disorder has reached maximum medical improvement. She has had a range of both medical and psychological treatments with only modest, if any, improvement over a period of four years. Her symptomatology and impairment is unlikely to change in the foreseeable future.
8. Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations.
Signed: Dr Graham Blom.”
The Appeal Panel considers that Medical Assessor Blom has obtained a detailed and current clinical history relating to the appellant and has conducted a thorough examination of her. The Appeal Panel accepts and adopts the history Medical Assessor Blom obtained, his findings from his clinical examination of the appellant and his diagnosis of the appellant’s psychiatric illness.[3] The Appeal Panel also agrees with the ratings of Medical Assessor Blom relating to the appellant’s impairment in self-care and personal hygiene and in social and recreational activities and in employability, for the reasons Medical Assessor Blom provided in his report to the Appeal Panel. Thus, correcting the errors in the MAC, the Appeal Panel rates the appellant’s impairment in self-care and personal hygiene as Class 3, in social and recreation activities as Class 3 (which is the same rating the Medical Assessor made) and in employability as Class 5, and makes no deduction under s 323(1) of the 1998 Act. Noting that no issue was taken with the Medical Assessor’s ratings of the appellant’s impairment in travel, social functioning and concentration persistence and pace, the appellant’s ratings in ascending order are 2, 3, 3, 3, 5, the median which is Class 3 and the aggregate of which is 18. That equates to 22% WPI.
[3] Coca Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
For these reasons, the Appeal Panel has determined that the MAC issued on 26 November 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: | W26442/24 |
Applicant: | Shirley Liew |
Respondent: | Amber Group Australia Pty 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 Anku Gupta 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, | 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 disorder | 8/1/2021 | Chapter 11 | - | 22% | - | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
4
0