Parrott v Suncorp Staff Pty Ltd
[2024] NSWPICMP 576
•16 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Parrott v Suncorp Staff Pty Ltd [2024] NSWPICMP 576 |
| APPELLANT: | Katherine Parrott |
| RESPONDENT: | Suncorp Staff Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jacqueline Snell |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 16 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) incorrectly assessed the appellant with class 2 mild impairment rather than a class 3 moderate impairment with respect of social and recreational activities; whether MA incorrectly assessed the appellant with a class 4 severe impairment rather than class 5 total impairment with respect to employability; whether MA failed to make an adjustment for whole person impairment for the effects of treatment; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 May 2024 Katherine Parrott (Ms Parrott) 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 18 April 2024.
Ms Parrott 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.
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).
RELEVANT FACTUAL BACKGROUND
Ms Parrott made a claim for permanent impairment compensation resulting from psychological injury sustained during the course of her employment with Suncorp Staff Pty Ltd (Suncorp), with date of injury of 3 February 2017, which was disputed. An Application to Resolve a Dispute was lodged with the Personal Injury Commission (Commission) on
8 December 2023 and a Reply was lodged with the Commission in response. Two Applications to Admit Late Documents were lodged on behalf of Ms Parrott and an Application to Admit Late Documents was also lodged on behalf of Suncorp.When Ms Parrott’s claim came before the Commission on 18 March 2024, the matter was remitted to the President for referral to a Medical Assessor.
The Medical Assessor examined Ms Parrott on 8 April 2024 and the MAC in which the Medical Assessor assessed Ms Parrott as having sustained 8% whole person impairment resulting from her psychological injury issued on 18 April 2024.
PRELIMINARY REVIEW Verma
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 Ms Parrott should undergo a further medical examination because the Appeal Panel considered the Medical Assessor had failed to canvass Ms Parrott’s trip to Egypt in 2023 when assessing
Ms Parrott’s social and recreational activities and the Medical Assessor had inconsistently described Ms Parrott’s capacity for work at “for at least 20 hours per fortnight” and “for less than 20 hours per fortnight” when assessing her employability.
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.
Further medical examination
Medical Assessor Andrews of the Appeal Panel conducted an examination of Ms Parrott on 26 July 2024 and reported to the Appeal Panel:
“1. The worker’s medical history, where it differs from previous records
Ms Parrott relocated to Maitland about 12 months ago and now sees whichever doctor is available at the George Street Family Practice in East Maitland. She visits her doctor once a month, accompanied by her husband or daughter.
Her psychiatric medication is unchanged; she continues to use desvenlafaxine 200 mg daily, brexpiprazole 20 mg daily, pericyazine 10 mg daily, amitriptyline 10 mg daily and diazepam as needed for panic. The diazepam is used about three times a week.
She doesn’t see a psychologist or psychiatrist.
Ms Parrott had a back injury in 2013 that has now been resolved. She had a coronary angioplasty in November 2017 for cardiovascular disease. She has ongoing treatment for this.
She had a gastric bypass in 2016 for morbid obesity.
2. Additional history since the original MAC was performed
Ms Parrott lives in East Maitland with her husband, daughter, and daughter’s husband. Her husband is a truck driver, her daughter is a deli manager for Woolworth’s, and her daughter’s husband is an online buyer for Woolworth’s. They live in a freestanding house, sharing the kitchen and bathroom. Ms Parrott and her husband have their bedroom and exclusive use of the lounge.
Ms Parrott denied pre-existing mental health problems except for a brief period of depression associated with grief after her mother died several years ago. She took medication for a short time and recovered. The MAC also referred to Ms Parrott being subjected to sexual abuse from the ages of 5 to 14 and a suicide attempt in 2004 in the context of a relationship breakup.
Current symptoms:
Ms Parrott says that her condition has progressively deteriorated since she left work in 2017. She felt that her medication had not assisted her much except to make her feel a little calmer.
When asked about her mood, she said she felt numb. She has anhedonia but no diurnal mood variation.
She is anxious and avoids leaving home. She has panic attacks about three times a week, usually associated with having to leave her home or contemplating it. She is prone to catastrophic thinking, saying, “I am even afraid to have a shower because I think I’m going to drown.”
She lacks motivation and is often fatigued.
She is not prone to irritability or anger but does get upset circumstantially.
She has subjective problems with concentration and memory.
Previously, she had strong thoughts of suicide, but after promising her daughter she would not act on these thoughts, they have diminished.
She falls asleep quickly with alcohol and medication but wakes between 1 and 2 AM and struggles to fall back asleep. She often spends the night wandering around her house.
Her appetite has reduced, and she often skips meals. She has progressively lost weight. Her weight is now 82 kg; at 173 cm, her BMI is 27.4, slightly into the overweight range.
Ms Parrott drinks alcohol every day, finishing with a 700 ml bottle of Southern Comfort, equating to 17 standard drinks. She usually starts drinking at about 1 PM, but sometimes. earlier. Her alcohol use has caused discord within her family.
Before problems started in the workplace in 2016, she did not smoke cigarettes. She now smokes 40 cigarettes a day.
Diagnoses:· persistent depressive disorder with an ongoing major depressive episode and anxious distress
· panic disorder
· agoraphobia
· alcohol use disorder
Ms Parrott has been unwell for about eight years. She has all nine symptoms described in the DSM-5 for a major depressive episode. She has prominent anxiety throughout the day. She has frequent panic attacks associated with fear of leaving her home, which she avoids doing as much as possible. She is drinking alcohol in a manner that will negatively impact her mental and physical health. This has caused discord within her family, but she has not informed her medical practitioner about her alcohol use.
Her condition is in entrenched and will not change significantly in the next 12 months, with or without further medical treatment.
Activities of daily living:
Ms Parrott spends most of her time at home, sitting in the lounge or the backyard. She has the television on and watches soap operas such as Chicago Fire or does crossword puzzles. She does no housework other than laundry once a week. She described her house as “filthy.” She orders food and alcohol online from Woolworths.
She showers infrequently – she said she had not had a shower in the last four weeks.
She often skips breakfast and lunch. She may prepare herself a light meal by microwaving a preprepared purchased meal.
She denied having any friends. She said that the friend who visited each Tuesday (mentioned in the MAC) no longer does so, and she doesn’t know why. She has not seen him in the last two months.
She doesn’t go to cafés, restaurants, or other outings, and family occasions such as birthdays are not celebrated especially. However, she makes an effort at Christmas to prepare a family meal.
She has a driver’s license but has not driven during this year. Her only outings during 2024 were to see her doctor, and she is always taken there by her husband or daughter.
She travelled to Egypt late in 2023. She said seeing the pyramids had been on her bucket list, and her husband insisted on taking her. They were in the country for ten days and took a river cruise between Cairo and Aswan. She attended one meal daily in the restaurant but didn’t interact with other travellers. She went on some excursions but refused others because she felt too anxious and panicky. She managed the journey with her husband’s support.
She has continued good relationships with her husband, daughters, son-in-law, and father. Her second daughter lives 40 minutes away and visits every two months. Ms Parrott has not travelled to visit this daughter in the last year. Her father lives at Warialda, a 5 ½ hour drive, and he came to visit at Christmas. Contrary to what is written in the MAC, she has not visited her father.
The appeal:
The appeal was raised on three grounds:
1. Social and recreational activities
2. Employability
3. Adjustment for the effects of treatment
The panel found errors in the two challenged PIRS categories but found no error regarding an adjustment for the effects of treatment.
Social and recreational activities:
Ms Parrott rarely leaves her home and does not do so for social or recreational reasons, except for her trip to Egypt in 2023. During that trip, she stuck close to her husband, who acted as a support person. She didn’t socialise or interact with other travellers. Her male friend, who had visited her each Tuesday at her home, no longer does so. She has no other friends. They do not have family celebrations except for Christmas dinner. She has no further travel plans.
Employability:
Ms Parrott has not worked in any capacity since 2017. She has continued severe mood and anxiety symptoms. She struggles to leave her home and is prone to frequent panic attacks. She has a severe alcohol use disorder, commencing drinking by 1 PM and sometimes earlier.
3. Findings on clinical examination
I assessed Ms Parrott in her home via an audiovisual link. The connection quality was adequate for a comprehensive 45-minute assessment.
During the interview, she sat in her backyard, smoking cigarettes and drinking Coca-Cola. She denied that she had consumed any alcohol that morning.
She presented as a dishevelled woman, looking older than her stated age. She wore glasses and had a nose ring in her left nostril. She looked unkempt and was dressed in a dressing gown.
She described her mood as numb and emphasised her anxiety. She said that she had a panic attack when trying to connect to the Internet for the meeting. Her affect was restricted, consistent with her stated mood and congruent with the interview content. Rapport was established, and she cooperated with the interview. It was my impression that she was answering my questions openly.
There was no evidence of any disorder of thought form or perception.
She was imprecise with some answers, struggling with details and event sequences.
She denied recent thoughts of suicide or self-harm.4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”
Medical Assessment Certificate
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
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, Ms Parrott submits that the MAC be revoked, and Ms Parrott be re-assessed by an alternate Medical Assessor. Ms Parrott submits:
(a) the Medical Assessor incorrectly assessed Ms Parrott with a class 2 mild impairment rather than a class 3 moderate impairment in respect of social and recreational activities;
(b) the Medical Assessor incorrectly assessed Ms Parrott with a class 4 severe impairment rather than a class 5 total impairment in respect of employability, and
(c) the Medical Assessor failed to make an adjustment for whole person impairment for the effects of treatment of Ms Parrott’s condition.
In reply, Suncorp submits that the MAC is correct, and should be confirmed. Suncorp submits:
(a) it was open to the Medical Assessor to use her skill, judgment and clinical expertise to come to the conclusions that she did and assessed Ms Parrott appropriately;
(b) in respect of social and recreational activities, Ms Parrott’s participation and engagement during her social interaction with a friend who visited on a weekly basis and her ability to engage in social interactions with her father was consistent with a class 2 mild impairment;
(c) in respect of employability, while Dr Roberts provided opinion Ms Parrott had no capacity for work, Dr Kumar provided opinion Ms Parrott had capacity for work, and the Medical Assessor assessed Ms Parrott with a class 4 severe impairment based on her own assessment of Ms Parrott, which occurred some considerable time after the independent medical examinations of Dr Roberts and Dr Kumar, and
(d) in respect of adjustment of whole person impairment for the effects of treatment, it was open to the Medical Assessor following her review of all of the medical evidence available to her, to use her clinical judgement and skills to conclude
Ms Parrott’s long-term treatment did not warrant an adjustment of whole person impairment.
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.
Review of the MAC
The Medical Assessor recorded a date of injury of 3 February 2017. The Medical Assessor noted Ms Parrott had previously been employed as a customer service representative with Suncorp. The Medical Assessor noted Ms Parrott commenced her employment with Suncorp in 2012 and ceased working with Suncorp on 3 February 2017. The Medical Assessor noted Ms Parrott had not returned to work since then.
The Medical Assessor described Ms Parrott as currently living with her husband and her daughter and son in law. The Medical Assessor noted Ms Parrott’s other daughter lived away from home.
The Medical Assessor noted Ms Parrott was drinking 10 – 12 drinks each day. The Medical Assessor noted Ms Parrott was not currently receiving treatment from either a psychologist or a psychiatrist but remained under the care of her general practitioner. The Medical Assessor reported Ms Parrott avoided thinking about employment as it caused her anxiety, and while Ms Parrott experienced “death wishes” she had promised her daughter she would not act on such thoughts.
The Medical Assessor noted Ms Parrott had previously been under the care of a psychologist and had been admitted twice against a backdrop of suicidal and homicidal ideation. The Medical Assessor noted Ms Parrott’s medication to be desvenlafaxine 200mg, brexpiprazole 20mg, neuloactil 10mg and amitriptyline 10mg. The Medical Assessor also noted a reliance on Valium.
The Medical Assessor noted Ms Parrott’s current symptoms included an absence of activity at home with a tendency to imbibe alcohol throughout the day. The Medical Assessor described Ms Parrott as usually being drunk by the time her husband and daughter returned home from work, with minimal interaction with them. The Medical Assessor described
Ms Parrott as showering only once or twice each fortnight. The Medical Assessor reported Ms Parrott as being unable to experience any emotion save for anxiety. The Medical Assessor reported Ms Parrott’s night sleep was disturbed, and she napped multiple times during the day. The Medical Assessor reported Ms Parrott said her confidence was low and she struggled with self-esteem. The Medical Assessor also described as Ms Parrott as being unable to trust people.Relevant to her social and recreational activities, the Medical Assessor described Ms Parrott as mostly staying at home, only leaving home to shop for food at the nearby shops (which are approximately 2km away), to have a manicure each month in the company of her husband, and to visit her father. This noted, the Medical Assessor reported Ms Parrott visited Egypt last year for 10 days. Also relevant to her social and recreational activities, the Medical Assessor described Ms Parrott meeting with her friend Tony who visited with her each Tuesday afternoon, engaging in crossword puzzles, watching television for a limited time, and reading without comprehension.
Relevant to her employability, the Medical Assessor reported of Ms Parrott “she tries not to think about being employed” as it reportedly gave her anxiety attacks. The Medical Assessor reported Ms Parrott “catastrophises as to what would happen if she were to get a boss like her previous one”.
The Medical Assessor described Ms Parrott presenting at the time of assessment with symptoms of fluctuation in mood ranging from low mood to feeling numb, sleep disturbances, decreased motivation, low energy levels, chronic death wishes and suicidal ideations. The Medical Assessor provided diagnosis of persistent depressive disorder and provided opinion Ms Parrott has received “evidence-based” treatment and management for her symptoms and had reached maximum medical improvement.
In providing comment regarding other medical opinions and findings in evidence, the Medical Assessor explained that during her assessment of Ms Parrott she noted:
(a) regarding social and recreational activities, Ms Parrott was able to socialise with her friend who comes to visit with her every Tuesday afternoon, go out to nearby shops to buy food, and go out with her husband once a month to have her nails done, all of which warrant mild rather than moderate impairment as she is able to go out without a support person;
(b) regarding employability, Ms Parrott would variously be able to work for at least 20 hours per fortnight and Ms Parrott can work less than 20 hours per fortnight, and
(c) regarding the effects of treatment and management of Ms Parrott’s symptoms, no adjustment is warranted for the effects of treatment as Ms Parrott reported that despite treatment her condition had not changed at all and said, “things are still tense.”
In her psychiatric impairment rating scale (PIRS) rating form the Medical Assessor relevantly said the reason for her decision to assess class 2 regarding Ms Parrott’s social and recreational activities was:
“Ms Parrott reported that she stopped meeting most of her friends, except Tony who comes and visits her once a week. She reported that she was already estranged with her siblings even before the incidents. She is well supported by her daughter and husband.”
In the same form the Medical Assessor relevantly said the reason for her decision to assess class 4 regarding Ms Parrott’s employability was:
“Based on her current overall functioning, impairment in other PIRS categories and current mental health symptoms, Ms Parrott cannot work more than one or two days at a time, less than 20 hours per fortnight with reduced pace and in a less stressful environment.”
Review of independent medical evidence
Dr Roberts
Ms Parrott was initially psychiatrically assessed by Dr Roberts in his capacity as independent medical examiner on 19 February 2018, some six years prior to when Ms Parrott was assessed by the Medical Assessor. Dr Roberts provided his initial report dated
21 February 2018. At that point in time Dr Roberts diagnosed Ms Parrott with major depressive disorder and described her prognosis as guarded. Dr Roberts relevantly said of Ms Parrott’s current functioning:“Mrs Parrott reported spending much of her time watching television, on Facebook or playing games on her phone. She also colours in… She does not visit friends. They come to visit her. Her husband “drags” her to Charlestown Square to buy bread. She will go on her own to the local shops 500 meters away and to her general practitioner and psychologist ten kilometres away… The Certificate IV that she is studying has been done part time over eighteen months. She was to finish it during August last year, but her concentration was compromised… For the past 18 months she has been planning a three-week holiday in Thailand and she and her husband are due to go in September 2018. Mrs Parrott drives to the caravan park in which her younger daughter lives. She and her daughters travelled to the assessment by train. She explained that she would have been unable to travel alone.”
Dr Roberts considered Ms Parrott to be totally incapacitated for work and said:
“She would represent an unreliable inconsistent employee. She would encounter difficulty attending work, concentrating at work, recalling instructions and remaining sufficiently motivated to undertake her work in a timely and effective manner.”
Relevant to her treatment, Dr Roberts noted Ms Parrott was prescribed antidepressant medication and was receiving regular psychological counselling. Dr Roberts said, “it is expected Mrs Parrott would benefit from an increase in the dose of antidepressant medication she is taking” and noted Ms Parrott was “soon to begin an outpatient group therapy programme at Warners Bay Private Hospital and it is expected that as part of the evaluation process she will be required to see a psychiatrist at that hospital. In this context, it is expected that her pharmacological treatment regime would be reviewed”.
Ms Parrott was subsequently psychiatrically assessed by Dr Roberts on 4 May 2021, some three years prior to when Ms Parrott was assessed by the Medical Assessor. On this occasion Dr Roberts diagnosed Ms Parrott with persistent depressive disorder with persistent major depressive episode together with diagnosis of agoraphobia with panic. He also said the pattern of Ms Parrott’s alcohol consumption is reflective of alcohol use disorder.
Dr Roberts recorded Ms Parrott considered that her current medication “helped her cope” and she is calmer than she previously been. However, she described herself as being “dronish” in that she feels unemotional, enjoys nothing and does not like going out. She reportedly explained “she feels safe at home, safe from the world”. Ms Parrott said she is not anxious at home. Dr Roberts relevantly recorded that when Ms Parrott does go out, she “goes directly to the shop and straight home by car. She drives independently”. Dr Roberts also relevantly recorded the last time Ms Parrott and her husband went anywhere in their caravan was 12 months ago and they only went to a campsite 30 minutes from home.
Dr Roberts again considered Ms Parrott to be totally incapacitated for work, which he said, “will endure potentially indefinitely”. Dr Roberts reported Ms Parrott said she avoids thinking about work because she has panic attacks if she does so.
Relevant to her treatment Dr Robers noted Ms Parrott was prescribed tranquilizer medication, sedative medication and antidepressant medication and there were no plans to adjust her medication.
Dr Roberts considered Ms Parrott suffered 24% whole person impairment resulting from her injury and in his PIRS rating form Dr Roberts relevantly said the reason for his decision to assess class 3 regarding social and recreational activities was:
“Ms Parrott does not engage in any social activities. She is largely reclusive. She may do a crossword and watch television but otherwise engages in no recreational activities.”
In the same form Dr Roberts relevantly merely said the reason for his decision to assess class 5 regarding employability was:
“Ms Parrott is totally impaired for employment.”
Regarding “effects of treatment” Dr Roberts reported:
“Ms Parrott ascribed limited benefit to her medication that is currently prescribed to her, however it is expected that without the treatment, her psychiatric condition would deteriorate significantly, and her impairment would be overtly different. It is therefore appropriate to undertake an adjustment of 2%.”
Following his review of further information, including opinion provided by Dr Kumar discussed below, in a supplementary report dated 7 March 2023, Dr Roberts confirmed his previously expressed opinion Ms Parrott was totally incapacitated for work.
Dr Kumar
Ms Parrott was psychiatrically assessed by Dr Kumar on 17 March 2022 in his capacity as independent medical examiner, some two years prior to when Ms Parrott was assessed by the Medical Assessor. Dr Kumar provided his initial report dated the same day. At the time of assessment Dr Kumar noted Ms Parrott’s prescription medication included antidepressant medication, anti-anxiety medication and anti-agitation medication. Dr Kumar described
Ms Parrott has having been taking this medication for the last five years and at the time of assessment she was not under the care of a psychiatrist or psychologist.Dr Kumar relevantly reported:
“Ms Parrott said that the medications “mostly keep her calm” but she still has odd occasions when she has “pretty bad anxiety attacks” and has to take a Valium. She said her mood is ‘numb’… She said that she has lost interest in activities she enjoyed such as colouring in, playing darts, shopping etc… She said she rarely leaves the house and does not take part in any recreational activities… she has lost some friends. She said one friend visits her every Tuesday and she makes him a cup of coffee.”
Dr Kumar provided diagnosis of adjustment disorder and alcohol use disorder and described Ms Parrott’s prognosis as guarded. Dr Kumar described Ms Parrott as able to work less than 20 hours each week in a “different less stress environment” than her pre-injury employment and considered Ms Parrott required treatment for her ongoing symptoms.
Dr Kumar considered Ms Parrott suffered only 8% whole person impairment resulting from her injury and in his PIRS rating form Dr Kumar relevantly said the reason for his decision to assess class 3 regarding social and recreational activities was:
“She said she rarely leaves the house and does not take part in any recreational activities.”
In the same form Dr Kumar relevantly said the reason for his decision to assess class 3 regarding employment was:
“She can work less than 20 hours a week in a different less stressful environment”
Regarding “effects of treatment” Dr Kumar reported that he had upwardly adjusted
Ms Parrott’s whole person impairment by 1% as result of the effects of prescribed treatment.
Legal considerations
At this point, we consider it useful to note authority central to complaint made by Ms Parrott.
The task of the Medical Assessor was described by the court in State of New South Wales v Kaur[1]:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise…’[1] [2016] NSWSC 346.
Justification of intervention by an Appeal Panel such as ours was subsequently discussed by the court at [24] in Ferguson v State of New South Wales: [2]
“The Appeal Panel accepted that intervention was only justified: if the categorization was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
[2] [2017] NSWSC 140 (Ferguson).
While the matter of Ferguson was cited by the court in Parker v Select Civil Pty Limited[3] we consider it instructive to note that in Parker the court cautioned:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[3] [2018] NSWSC 140.
In determining Ms Parrott’s appeal from the MAC we are mindful that in Campbelltown City Council v Vegan [4] the Court of Appeal held that an Appeal Panel such as ours is obliged to give reasons for determination and accept that 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, while it is necessary to explain why one conclusion is preferred, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching their professional judgement.
[4] [2006] NSWCA 284.
Consideration
Complaint is made by Ms Parrott the Medical Assessor incorrectly assessed Ms Parrott with a class 2 mild impairment rather than a class 3 moderate impairment in respect of social and recreational activities, (b) incorrectly assessed Ms Parrott with a class 4 severe impairment rather than a class 5 total impairment with respect of employability, and (c) failed to make an adjustment for whole person impairment for the effects of treatment of Ms Parrott’s condition.
Suncorp submitted in essence that it was open to the Medical Assessor to use her skill, judgement and clinical expertise to come to the conclusions that she did and had assessed Ms Parrott’s appropriately, with specific reference to the Medical Assessor’s assessment regarding (a) Ms Parrott’s social and recreational activities included social interaction with a visiting friend and father, (b) Ms Parrott’s capacity for work had occurred some considerable time after assessment by Dr Roberts and Dr Kumar, and (c) no adjustment for the effects of treatment.
The Appeal Panel accepts the Medical Assessor erred in (a) providing her assessment of whole person impairment with reference to class 2 mild impairment rather than a class 3 moderate impairment in respect of social and recreational activities, and (b) providing her assessment of whole person impairment with reference to a class 4 severe impairment rather than a class 5 total impairment with respect to employability. However, the Appeal Panel does not accept the Medical Assessor erred in making no adjustment for the effects of treatment.
It is evident from Medical Assessor Andrews’ examination report that Ms Parrott presented to him at re-examination as very unwell, and the additional information elicited by Medical Assessor Andrews challenges the Medical Assessor Verma’s reasoning at initial assessment regarding Ms Parrott’s social and recreational activities and Ms Parrott’s employability.
Relevant to Ms Parrott’s social and recreational activities, Medical Assessor Andrews reported:
“Ms Parrott rarely leaves her home and does not do so for social or recreational reasons, except for her trip to Egypt in 2023. During that trip, she stuck close to her husband, who acted as a support person. She didn’t socialise or interact with other travellers. Her male friend, who had visited her each Tuesday at her home, no longer does so. She has no other friends. They do not have family celebrations except for Christmas dinner. She has no further travel plans.”
The Appeal Panel note that beyond the holiday to Egypt, which was not adequately described by the Medical Assessor, the only social and recreational activities of Ms Parrott recorded by the Medical Assessor was that of socialising “with her friend who comes to visit with her every Tuesday afternoon” with the Medical Assessor noting she had “stopped meeting most of her friends, except Tony who comes and visits her once a week”, the other activities recorded above in paragraphs [27] and [28] being examples of self-care, travel and social function. As such, the Medical Assessor had also identified the very limited social and recreational activities of Ms Parrott only occur at her home or with a support person.
Relevant to Ms Parrott’s employability, Medical Assessor Andrews reported:
“Ms Parrott has not worked in any capacity since 2017. She has continued severe mood and anxiety symptoms. She struggles to leave her home and is prone to frequent panic attacks. She has a severe alcohol use disorder, commencing drinking by 1 PM and sometimes earlier.”
The Medical Assessor provided no reasoning as to how someone with an “absence of activity at home with a tendency to imbibe alcohol throughout the day”, who napped multiple times and had the levels of anxiety recorded, could work for the inconsistent hours suggested by her. Furthermore, the Medical Assessor identified no function indicative of vocational capacity. Medical Assessor Andrews’ findings at re-examination identify
Ms Parrott has no identifiable vocational function. Medical Assessor Andrews’ findings at re-examination also confirm Ms Parrott’s “absence of activity at home” and the fact she has been unable to work for over six years, being virtually housebound due to anxiety and alcohol misuse.
CONCLUSION
The Appeal Panel is of the view the Medical Assessor was in error in assessing in (a) providing assessment of whole person impairment with reference to class 2 mild impairment rather than a class 3 moderate impairment in respect of Ms Parrott’s social and recreational activities, and (b) providing assessment of whole person impairment with reference to a class 4 severe impairment rather than a class 5 total impairment with respect to Ms Parrott’s employability. The Appeal Panel is of the view the Medical Assessor made no error in adjustment for treatment affect.
There is no issue between the parties as to the Medical Assessor’s assessment of Ms Parrott relevant to her self-care and personal hygiene, travel, social functioning and concentration, persistence and pace, and the Appeal Panel cannot disturb any portion of the MAC assessment that has not been appealed.
For the reasons discussed above, the Appeal Panel has determined that the MAC issued on 18 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
The initial PIRS rating from the Medical Assessor’s assessment are 2,2,2,2,3,4, providing a median class score of 2 and aggravate score of 15 resulting in 8% whole person impairment. The modified PIRS rating of the Appeal Panel, which includes the PIRS rating from Medical Assessor Andrews’ re-examination of Ms Parrott regarding her social and recreational activities with reference to class 3 moderate impairment and regarding her employability with reference to class 5 total impairment, are 2,2,2,3,3,5 providing a median class score of 3 and an aggregate score of 17, resulting in 19% whole person impairment.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W9250/23 |
Applicant: | Katherine Parrott |
Respondent: | Suncorp Staff Pty Ltd |
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 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 NSW workers compensation guidelines | 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 injury | 3 February 2017 | Chapter 11 Pages 53 - 60 | Chapters 1, 2 and 14 | 19% | nil | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent impairment for injuries received after 1 January 2002.
0
6
0