McKinnon v Woolworths Group Ltd

[2025] NSWPICMP 156

DETERMINATION OF APPEAL PANEL
CITATION:	McKinnon v Woolworths Group Ltd [2025] NSWPICMP 156
APPELLANT:	Rachael McKinnon
RESPONDENT:	Woolworths Group Limited
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	12 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale (PIRS) categories (social and recreational activities) because of an inadequate path of reasoning; Held – Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 14 May 2024 Rachael McKinnon (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on17 April 2024.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

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 grounds 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, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. The appellant requested that she undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

EVIDENCE

Documentary evidence

1. 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.

Further medical examination

1. Medical Assessor Nicholas Glozier of the Appeal Panel conducted a re-examination of the worker and reported to the Appeal Panel.

Medical Assessment Certificate

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. It is noted that the appellant indicated on the Appeal form that she wished to make oral submissions to the Appeal Panel. Given that her written submissions addressed the question of error and the Appeal Panel found error and required a re-examination be conducted by a Medical Assessor who is also a member of the Appeal Panel (noting also that the appellant had requested a re-examination), the Appeal Panel did not consider that it was necessary to convene an oral hearing to address the question of error.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        date of injury: 12 February 2021;

   ·        body parts/systems referred: Psychiatric/psychological disorder, and

   ·        method of assessment: Whole Person Impairment.”

4. The Medical Assessor issued a MAC certifying 7% whole person impairment (WPI) as a result of the injury as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury	12 February 2021	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	7 %	Nil	7 %
Total % WPI (the Combined Table values of all sub-totals)					7 %

1. The assessment was based on his assessment under psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	Racheal McKinnon	Claim reference number (if known)	W1333/24
DOB	xxxx	Age at time of injury	37 years
Date of Injury	12 February 2021	Occupation at time of injury	Customer service
Date of Assessment	21 March 2024	Marital Status before injury	Defacto

Psychiatric diagnoses

Chronic adjustment disorder with mixed anxiety and depressed mood

Psychiatric treatment

GP follow-up and psychologist sessions

Psychotherapy and antianxiety medications

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

2

Ms McKinnon procrastinates to do things at home, some days she will tell herself to just do it and may do it or may just lie down. She showers and brushes teeth once a week, changes clothes every day, brushes her hair regularly without prompting. She is worried and can feel her teeth decaying and gets bleeding gums when brushes teeth. She is not regular with her laundry. She looks after her daughters (5 and 8 years) without any support and makes sure that they have regular meals and are in bed on time.

Social and recreational activities

2

Ms McKinnon doesn’t socialize much now, doesn’t like to go out, and prefers to be at home. She is involved in her daughter’s parties. She went to the pink concert recently, she enjoyed the concert, she can go by herself to such events but does not like going out much. She used to have parties and dinners with her friends but not now. Her friends don’t visit her and is not on social media often. She is not wanting friends to come home as house does not look good.

Travel

2

Ms McKinnon had her “L” plates but never got her full license, she never liked to drive as felt anxious about it and didn’t feel safe even before the injury. She catches public transport to travel, feels fine in public transport and can travel in local area on her own. She told me that there hasn’t been a need to go out on her own for long distance travel.

Social functioning

3

Ms McKinnon was never married and has been in de facto relationship for 10 years. Ms McKinnon told me that her partner doesn’t believe that she mental health issues and they argue quite a bit. There is no urge to be intimate, have been living together but have decided to separate in December 2023. She is getting help from case manager to move out. She is working on her single parenting payment. She doesn’t really go out much, looks after her children, makes sure they have regular food times, and bedtimes. She has never known her dad, her two bothers don’t talk, and she is not talking to her mum and it has been like this and has nothing to do with her injury.

Concentration, persistence and pace

2

Ms McKinnon finds very hard to focus, mind wanders, zones out, has to put alarm in her phone, can work and it’s in the routine. At work she knows what needs to be done and can stay focussed. She can follow instructions at work. She can read and would sit down and help her eldest girl with home readers.

Employability

3

Ms McKinnon has no issues at her current work, she is regular at work, works at least 3 days a week, which is 15-20 hours in a week, and plans to increase her hours. She cannot work at all in same position and can perform less than 20 hours per week in a different position.

Score

Median Class

2

2

2

2

3

3

2

Aggregate Score Impairment

Total

%

+

+

+

+

+

14

7

Pre-existing impairment = 0 %

Treatment effects = 0 %

Final WPI = 7 %”

1. The worker appealed.

2. In summary, the appellant submitted that the Medical Assessor made an assessment on the basis of incorrect criteria and made a demonstrable error in the assessment he made under one of the six PIRS categories, namely social and recreational activities, causing him to make an error in assessing a class 2 social and recreational activities when he should have assessed a class 3.

3. In summary, the respondent employer Woolworths Group Limited (the respondent) submitted that the Medical Assessor did not err, nor did he make an assessment on the basis of incorrect criteria, and the MAC should be confirmed.

4. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS for mere difference of opinion but must be satisfied as to error.

5. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self-report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that the path of reasoning was inadequate, and it was not clearly discernible from the reasons given that the assessment under the contested PIRS category of social and recreational activities was based upon the correct criteria, noting the history, self-report of the appellant and the other evidence before the Medical Assessor.  

6. In these circumstances of the above finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Nicholas Glozier was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W1333/24
Appellant:	Racheal McKinnon
Respondent:	Woolworths Group Limited
Date of Determination:	19 February 2025

Examination Conducted By:	Nicholas Glozier
Date of Examination:	19 February 2025

The assessment was conducted via the Teams platform. There were no technical difficulties.

1. The worker’s medical history, where it differs from previous records

I note the Medical Assessment Certificate was prepared nearly 10 months ago.

She reported that for many months now she had been taking Mirtazapine 15mg at night and no longer takes the SSRI medication. She has continued under the infrequent but regular care of her long-term treating psychologist; the last time she saw him being in November 2024, some three months ago. The last appointment was cancelled due to a medical issue he had. She said nowadays they tend to ‘check in’ and just go through what is happening, and described no specific treatment strategies.

From her symptom report today she has also made ongoing improvements over this period of time. This was attributed to the dramatic change in her circumstances from what she describes as a domestically-abusive relationship with financial coercion and control, to living on her own with her daughters. She said since September 2024 she and her daughters have been independent from her ex. She was supported in this by a women’s domestic violence advocacy group and is now in a ‘Start Safely’ programme, having established herself in her own accommodation since September. Things have settled a lot since that time. However although her partner was quite involved with the girls initially, he then withdrew and she had to impose a more demanding schedule on him, so that he would see the girls more. They have now established a routine where he picks up the girls from after-school care on Tuesdays and Fridays, looking after them until 8, and again cares for them Saturday evening and all-day Sunday.

This enables her to do the minimum three days work at Nando’s that she is contracted for, and most weeks undertake a fourth shift, equating to a 36-40-hour week most weeks on Wednesday, Thursday, Friday and all day Sunday. She said the other days she is very much focused on the girls who are ‘my life.’ As things have settled down she now describes no pervasive low mood nor anhedonia, although continues to have worries which generally appear in keeping with her circumstances. She now tends to see more of the negative aspects of what could happen and has lost the more care-free attitude she had when she was younger e.g. describing that when before children, she would go on safaris, and is amazed looking back at what she did then, whereas now she is more wary and cautious. She had an anxiety attack last December when her work was audited by a “RECS” assessment from the franchise-holder. She said this was because although she was there that day there had not been a manager for a few days prior, so the store was much dirtier than it should have been, which led her to feel very anxious. Otherwise she can get somewhat stressed when dealing with a very difficult customer but described no other episodes of significant physical tension or anxiety but rather day-to-day worries about her situation and the girls’ future. She goes to bed between 10pm and 11pm and, following taking her medication, falls asleep within 30 minutes. She gets up in the morning between 6:30am and 7am, only waking briefly to go to the toilet, thus describing a normal sleep duration, no onset or middle insomnia. She reported no other symptoms of any clinically significant nature.

1. Additional history since the original Medical Assessment Certificate was performed

As above, her situation has changed radically. She describes her week routine now with the new situation. Each morning she will get up, get the girls dressed and ready, prepare their lunches, and get herself ready for the day. She described no difficulties in any aspects of her self-care. She acknowledged that her diet could be better and she might need to drink more water as prompted by her health apps. In terms of her wellbeing, she walks between 5,000-10,000 steps a day according to her apps and manages her diet well. Again she said it could be a bit better but on exploration it appears this is more due to the kids’ preference for either bland food or few vegetables which she tries to deal with using veggie supplements. She does not need any supplements or use those herself.

She will take the girls to and from school if her turn. She does not hold a driver's licence and reported that she would not do so because she saw how her ex would drive and the ‘idiots on the road.’ However she uses public transport to get to where she needs to go, and describes no problems doing so; using both buses and trains regularly. On the days she is working she will take two buses to get to Macarthur Square and described in detail the timing for these as she needs to make sure she catches the first bus on time to catch the second form of transport. She has not flown for many years but does not think she would have a problem doing so. She could not identify any limitations in her travel. On the days the girls are at school she said she will ‘have a chat’ at the school gates with one of the other mums if they are there and maybe go for a coffee with them. Otherwise she will come home and get ‘stuck into the chores.’ She described no difficulties with aspects of the homework or shopping. She in fact enjoys shopping, and suggested this was a recreational activity if for clothes rather than food shopping, but she is limited in terms of her finances so cannot do this often now.

She goes to work 3-4 days a week, occasionally standing in as manager. She said that because of her situation as a single mum and the requirements of this, she is unable to move up within the company although would seek to do so over time.

She has limited resources outside of this. Her best friend has moved away and so she has no-one to engage in social activities with as of the other two friends she knew before: one has cancer and the other one has absented herself due to ‘a drink problem.’ As such her social life is limited to coffees with some of the other mums. I discussed the Pink concert she attended only days before the MAC. She said that last year she was adamant that she should go and as such, organised tickets to go with one of her colleagues from work. She presented this as a fait accompli to her ex and that this should be her birthday present. She enjoyed this concert. She has limited resources for any other social activities. In the evenings at home she will watch TV e.g. just finishing I’m A Celebrity, or do her Diamond Art crafting that she has taken up again. She has no support network for babysitting or other aspects that would enable her to go out more and described no disinterest in this.

She remains in contact with her family in Queensland and is seeking to go there in the future. She had hoped to have done so after the split but said she now cannot do so legally. There was a falling-out with her aunt some years ago over family funerals. This was a rather sad coincidence in that both she and a cousin had a stillborn on the same day and the family wanted to coordinate a dual funeral which she resisted. This led to some family conflict although she is now back in touch with them and sees them as more supportive. She describes Calliegh and Luna as her life. The girls are in year 1 and year 4. They are seeing a counsellor due to the issues with the separation. This was organised by the school through Mission Australia Kids Start. The eldest will do swimming but she is somewhat reticent about letting the younger one do so. She takes her to these classes but does not get involved beyond that.

She drinks alcohol only about once a week, maybe up to a bottle of wine over one or two nights. She continues to smoke 15 a day. She has been help-seeking for this e.g. looking to get Champix but said it is unobtainable locally. She does not micro-dose, use illicit drugs, medicinal cannabinoids.

1. Findings on clinical examination

Ms McKinnon was casually-dressed, prompt, fully engaged and displayed no overt anxiety, mood symptoms nor any cognitive difficulties. There were no abnormalities of behaviour, affect, movement. She was a detailed historian, elaborating on answers, providing associated relevant answers and showed no issues with any aspect of focus and concentration throughout the assessment with which she continued at a normal pace. The only phenomena she describes now are of a sense of increased worry about her circumstances and their future that she never had previously although previously was when she was with a partner and when more supported or care-free. Beyond this I could identify no recent clinically significant psychiatric symptoms, certainly since Christmas.

1. Results of any additional investigations since the original Medical Assessment Certificate

Nil.

Summary:

I am not of the opinion that Ms McKinnon currently meets the diagnostic criteria for any psychiatric disorder and her Adjustment Disorder arising as her work injury is in remission with no clinically significant or impairing symptoms. I was unable to elicit or determine any impairment in aspects of her self-care, travel or employability on the assessment today. She cares for herself and her children well, is help-seeking, is able to travel as and where she needs to using public transport and works up to 40 hours a week in a customer service, and at times managerial, role in a demanding retail environment. She suggested that she had planned the Pink concert herself, organised this and the person she went with was a work colleague rather than any support person. She engages in a regular craft hobby, will do things with the girls if and when she can, and catch up with some of the mums for a coffee. Otherwise she has no social network or social support to enable her, as a single mum with limited resources, to do this. The social network she did have is no longer there, limiting this. This may be at most a mild impairment. She and her ex split up which in part may be related to her symptoms but also she describes significant abuse, coercion and control on his part. Otherwise she described no impact of her condition on her children, family relationships or her other social contacts with them either moving away, becoming ill or having their own problems. Today she reported that she had no issues with the cognitive aspects of work, is able to watch TV, recall what happens, use the various apps that she uses in the evening, focus on her diamond art and displayed no difficulties focusing, concentrating and persisting with the pace of the assessment today.

1. The Appeal Panel considers that the examination undertaken by Medical Assessor Nicholas Glozier was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Nicholas Glozier has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS category that has been challenged on appeal, namely social and recreational activities. The Appeal Panel notes that Medical Assessor Nicholas Glozier had regard to the other evidence before him, has not relied on
   self -report alone and has used his clinical expertise on the day of assessment to make recommendations to the Appeal Panel about the assessments of the contested PIRS categories. The Appeal Panel also notes Medical Assessor Nicholas Glozier’s findings on clinical examination of the appellant and his diagnosis made after clinical examination of the appellant, namely that the appellant worker no longer continues to meet DSM-5 criteria for any psychiatric disorder and “her Adjustment Disorder is in complete remission with no clinically significant or impairing symptoms.” The Appeal Panel agrees with and adopts the findings of Medical Assessor Nicholas Glozier.

2. In respect of social and recreational activities, Table 11.2 of the Guides provides as follows:

   Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

1. The Appeal Panel adopts the findings of Medical Assessor Nicholas Glozier on
   re-examination as follows:

   “She suggested that she had planned the Pink concert herself, organised this and the person she went with was a work colleague rather than any support person. She engages in regular craft hobby, will do things with the girls if and when she can and catch up with some of the mums for a coffee but otherwise has no social network or social support to enable her, as a single mum with limited resources, to do this. The social network she did have is no longer there, limiting this. This may be at most a mild impairment.”

2. The Appeal Panel considers that based on these findings, the best fit is a mild impairment or class 2 for social and recreational activities as rated by the Medical Assessor and hence the assessment of the Medical Assessor is confirmed in this regard. As this was the only complaint on appeal, the MAC will be confirmed.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 17 April 2024  should be confirmed.