Robinson v Meadowbank Education Inc
[2024] NSWPICMP 220
•12 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Robinson v Meadowbank Education Inc [2024] NSWPICMP 220 |
| APPELLANT: | Kathryn Robinson |
| RESPONDENT: | Meadowbank Education Inc |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 12 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) correctly rated appellant’s impairment in psychiatric impairment rating scale for self-care and personal hygiene and employability; Appeal Panel found no error with MA’s rating of appellant’s permanent impairment in self-care and personal hygiene but found the MA’s rating of the appellant’s impairment in employability was unsupported by the evidence and was an error; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 December 2023 Kathryn Robinson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 November 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury due to incidents that occurred in her employment with Meadowbank Education Inc, the respondent. She claimed compensation for permanent impairment resulting from that injury. A medical dispute arose between the parties regarding the degree of her permanent impairment from that injury. The appellant had obtained a report from psychiatrist Dr Mukesh Kumar dated 13 December 2022, who assessed she had 22% whole person impairment (WPI) from her injury. The respondent relied on a report of psychiatrist Dr Sachin Patil dated 26 April 2023 who assessed the degree of the appellant’s permanent impairment from her injury was 19% WPI.
The appellant commenced proceedings in the Person Injury Commission (Commission) seeking determination of her claim for compensation. A delegate of the President of the Commission referred the matter to the Medical Assessor to assess the medical dispute between the parties relating to the degree of the appellant’s permanent impairment from her injury. The Medical Assessor examined the appellant on 9 November 2023 so as to conduct that assessment and, as said, she issued a MAC on 28 November 2023, in which she certified that she had assessed the appellant’s permanent impairment from her injury to be 17% WPI.
The Medical Assessor made her assessment of the appellant’s permanent impairment in accordance with the criteria of Chapter 11 of the Guidelines, which required her to rate the seriousness of the effect of the appellant’s injury in six areas of activity and conduct, which together are termed the psychiatric impairment rating scale (PIRS). The appellant’s appeal against the MAC relates to the Medical Assessor’s rating of her impairment in the PIRS for self care and personal hygiene and for employability. The Medical Assessor rated the appellant’s impairment in those PIRS respectively as Class 2 and Class 4. In the PIRS rating form within the MAC she provided the following explanation for her ratings:
Self care and personal hygiene
2
She reported that she showers and brushes her teeth at the insistence of her husband and her husband does all the cooking. She reported that she is able to vacuum, make bed, stack dishes in the dishwater, and unload them. She, however, prefers to stay in bed most of the time. Objectively, on review, Ms Robinson was dressed and groomed well and was not particularly disabled.
Employability
4
Ms Robinson’s current symptoms and impaired attention and concentration preclude her from working full-time; however, she could work less than 20 hours per fortnight with support.
The Medical Assessor compared her assessment with the assessments that Dr Kumar and Dr Patil had made of the appellant’s permanent impairment. She noted with respect to Dr Kumar’s assessment that her ratings differed from Dr Kumar’s ratings of the appellant’s impairment in self-care and personal hygiene and in employability. With respect to Dr Kumar’s rating of the appellant’s impairment in self-care and personal hygiene, which was Class 3, the Medical Assessor recorded that she had regard to Dr Kumar’s history and observed that Dr Kumar’s rating made no mention of any objective evidence whereas she had observed that the appellant was quite well dressed and well groomed during her examination of the appellant. The Medical Assessor also said that whilst the appellant reported that she needs support from her husband the appellant was still able to shower and brush her teeth regularly. The Medical Assessor said that she believed that the appellant has a mild impairment in self-care and personal hygiene.
With respect to Dr Kumar’s rating of the appellant’s impairment in employability, which was Class 5, the Medical Assessor said that she believed that because the appellant only had a moderate impairment with her concentration, persistence and pace that she would have some capacity for employment even though her pace might be reduced and her attendance might be erratic. The Medical Assessor indicated that because of that she did not consider the appellant’s impairment in employability was total, as Dr Kumar had rated it.
When comparing her assessment with the assessment that Dr Patil had made the Medical Assessor noted that her rating of the appellant’s impairment in the PIRS for employability differed from the rating Dr Patil had made. The Medical Assessor said that she believed the appellant could work less than 20 hours a fortnight with reduced pace and because she considered the appellant had mild to moderate impairment in almost all the other PIRS she considered the appellant would have “some or reduced capacity to engage in employment”.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the information before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred with respect to the approach she adopted to rate the appellant’s impairment in employability because the Medical Assessor considered the wrong question, specifically whether her concentration, persistence and pace precluded her from employment. The appellant submitted that the Medical Assessor ought to have considered her impairment in employment by reference to the descriptors for the various classes for the rating of her impairment provided within Table 11.6 of the Guidelines. The appellant referred to parts of the documentary evidence that was before the Medical Assessor. This included a report of her treating psychiatrist dated 6 September 2021 wherein he said that the appellant’s current symptoms rendered her with no work capacity. It also included the clinical records of her general practitioner that the appellant had nil capacity to work. It included her statement she signed on 7 September 2023 wherein she said that she has an inability to communicate effectively and follow simple instruction and has extremely poor motivation and lack of energy such that she cannot carry out any type of employment. The appellant submitted that she has a profound level of dysfunction that is incompatible with an ability to secure and maintain a job. The appellant submitted that her impairment in employability is such that it should be rated as Class 5.
With respect to the Medical Assessor’s rating of her impairment in self-care and personal hygiene the appellant again referred to parts of the documentary evidence that was before the Medical Assessor. This included an entry by her general practitioner on 10 December 2020 that she had low mood and difficulty getting out of bed and of her partner having to stimulate her. It included a further note her general practitioner made on 22 August 2022 that she had stayed in bed all day when her husband was away. It included a reference her treating psychiatrist made in a report dated 17 December 2020 that the appellant has increasing difficulty with her activities of daily living and needed increasing support from her husband. It included her statement in which she said that she needed daily reminders from her husband to shower and brush her teeth and if he did not remind her she would not do it and that if she is on her own she does not bother to shower or get dressed and will stay in bed for the day.
The appellant submitted that indicated her impairment in self-care and personal hygiene should be rated as Class 3 and that it was not open to the Medical Assessor to rate her impairment as Class 2.
In reply, the respondent submitted that whilst there were aspects that the Medical Assessor highlighted in her explanation for rating the appellant’s impairment as Class 2 in self-care and personal hygiene that could justify a rating of Class 3, such as showering and brushing her teeth at the insistence of her husband, the majority of the matters to which the Medical Assessor referred indicated a Class 1 or a Class 2 rating, such as doing household chores and attending to her personal grooming. The respondent submitted that the Medical Assessor was not required only to take into account what the appellant reported with respect to her self-care and personal hygiene but was also able to take into account her own observations during the examination, which included that the appellant was dressed and well groomed.
The respondent highlighted that when Dr Patil examined the appellant in April 2023 he recorded that her self-care was poor and that, whilst she showered and brushed her teeth daily, she would not do so if her husband was not around. The respondent noted that having obtained that history Dr Patil rated the appellant’s impairment in self-care and personal hygiene as Class 2. The respondent submitted that supported “medical practitioners who have assessed the appellant do not consider her to be as significantly impaired in this area as she perceives herself to be”.
The respondent submitted that it was open to the Medical Assessor to rate the appellant’s impairment in self-care and personal hygiene as Class 2 and there was no error in the Medical Assessor doing so.
With respect to the Medical Assessor’s rating of the appellant’s impairment in employability, the respondent submitted that the Medical Assessor did not base her rating solely on the appellant’s impairment in concentration, persistence and pace. The respondent submitted the Medical Assessor rated the appellant’s impairment based on both current symptoms and her impaired attention and concentration which the Medical Assessor found prevented the appellant working full-time but did not prevent her working less than 20 hours a fortnight with support. The respondent submitted that the Medical Assessor was not required to identify the nature of employment that the appellant could perform or whether work was in fact available and the Medical Assessor was able to infer from the household tasks that the appellant could do whether she had an ability to undertake some work. The respondent relied on Jenkins v Ambulance Service of New South Wales[1] to support that submission.
[1] [2025] NSWSC633.
The respondent submitted that the parts of the documentary evidence to which the appellant referred to support her submission that her rating in employability was more severe than that which the Medical Assessor rated, was dated. The Appeal Panel interprets this submission as being that because the assessment of the appellant’s permanent impairment was to be done as of the time the Medical Assessor made her assessment, the pieces of the evidence to which the appellant referred related to the past, and not to the present and hence were of not much assistance to the task of assessing her permanent impairment.
The respondent submitted that it is not unreasonable to conclude that there has been an improvement in the appellant’s condition since late 2022 that has resulted in an increase in her work capacity.
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.
Incorrect criteria
The Medical Assessor applied the correct criteria to assess the appellant’s impairment, given that she assessed the appellant’s impairment by reference to the criteria in Chapter 11 of the Guidelines.
Self care and personal hygiene
The examples provided in Table 11.1 of the Guidelines, which relates to the PIRS for self-care and personal hygiene, for a Class 2 and Class 3 impairment, are:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
The Appeal Panel considers that it was not open to the Medical Assessor to rate the appellant’s impairment in self-care and personal hygiene as Class 2, and it ought to have been rated as Class 3. The Appeal Panel considers that the Medical Assessor erred by not rating the appellant’s impairment in this PIRS as Class 3.
The Appeal Panel notes that the appellant in her statement of 7 September 2023 said that she only brushes her teeth and showers when reminded by her husband, which accords with the history the Medical Assessor obtained. The appellant also said that if her husband is not present she will not get out of bed, and that her husband prepares all her meals.
The Medical Assessor’s rating of the appellant’s impairment was influenced by the fact that the appellant was well groomed and dressed at the time of examination. Given the appellant’s evidence in her statement, it seems to the Appeal Panel likely the appellant’s presentation at examination with the Medical Assessor was explicable due to prompting of her husband, and it seems to the Appeal Panel, based on the appellant’s evidence in her statement, that whenever the appellant presented as such it would in all likelihood be a consequence of her husband’s prompting.
In the Appeal Panel’s view the appellant’s evidence revealed that she is not able to live independently. That is, she would be unable to attend independently to her self-care and personal hygiene and she requires the support of her husband for this. Whilst the descriptors in Table 11.1 provide only examples of how a worker’s function may have been affected by the injury, and are not prescriptive, the Appeal Panel nevertheless considers both from what the Medical Assessor has described in the PIRS rating form and the appellant’s evidence in her statement, that the extent to which she attends to her self-cafe and personal hygiene correlate most closely with the descriptors provided for Class 3.
The Appeal Panel is mindful that in order to find error in a Medical Assessor’s rating of a worker’s impairment in any of the PIRS categories, the Appeal Panel must be satisfied that the opinion formed by a Medical Assessor based on the Medical Assessor’s clinical judgement exercised at the time of assessment was not available to be made based on the evidence that was before the Medical Assessor, which includes the history the Medical Assessor obtained. In other words, in order for an Appeal Panel to find error, there must be an error in the exercise by a Medical Assessor of the Medical Assessor’s clinical judgment – a mere difference of opinion is not sufficient to establish error.[2]
[2] See Coenradi v Gogeo Group Aust Pty Ltd [2022] NSWSC 864 at [135]-[136]; Ferguson v State of NSW [2017] NSWSC 887 at [23]-[24].
In this matter, the Appeal Panel considers that the evidence with respect to the appellant’s impairment in the category of self care and personal hygiene includes the appellant’s statement signed on 7 September 2023, just two months prior to the Medical Assessor examining her. To repeat, the Appeal Panel considers that when regard is had to all the evidence, including that statement, it was not open to the Medical Assessor to conclude that the appellant’s impairment in the category of self care and personal hygiene was mild.
The Appeal Panel considers that without the regular support of the appellant’s husband, the appellant would be unable to live independently and the Appeal Panel consequently considers the Medical Assessor was wrong to rate the appellant’s impairment in self-care and personal hygiene as mild, and not moderate.
Employability
The examples provided in Table 11.6 of the Guidelines, which relates to the PIRS for employability, for a Class 4 and Class 5 impairment, are:
Class 4
Severe impairment: Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5
Totally impaired: Cannot work at all.
The Appeal Panel also considers that it was not open to the Medical Assessor to rate the appellant’s impairment in the PIRS for employability as Class 4 and that she erred by not rating it as Class 5.
The Appeal Panel does not consider the facts of this case are analogous to those in Jenkins. The worker in Jenkins was able to undertake gardening and some household activities and was able to care for her pets and domestic animals. The Medical Assessor rated the worker’s impairment in self-care and personal hygiene as Class 1, indicating that the worker either had no impairment or a minor deficit in self-care and personal hygiene that was attributable to the normal variation in the general population. In other words, in terms of the household activities the worker in that case could do she either had no impairment or only a minor impairment. Garling J held that the worker’s capacity to undertake household work and gardening and attending to her pets could indicate to a Medical Assessor that the appellant was able to engage some remunerative employment.[3] In this case, the appellant does not get out of bed unless her husband is present. There are tasks that she will not do relating to her self-care such as cooking, but she also does not attend to tasks related to her personal hygiene such as brushing her teeth and showering without prompting and support of her husband. That separates this case from Jenkins.
[3] Jenkins at [68]-[71].
In the Panel’s view, the Medical Assessor made an arbitrary determination that the appellant could do some work, based on ‘symptoms’ and a moderate impairment in concentration, persistence and pace. The appellant’s symptoms are significant and she lacks motivation to self-activate, requiring the support of her husband even for simple tasks. She has not worked for several years and there is nothing to indicate that she could do so now in the open market in any role.
In the Appeal Panel’s view, the fact that the Medical Assessor considered that the appellant would be able to work 20 hours a fortnight with support indicates that the appellant has a total impairment in employability. Absent her having support in a workplace she would be unable to work. In substance, consequently, the effect of her injury is such that there would be no job available in which she could be employed. A workplace in which a putative employer provides support is really describing what is commonly termed a sheltered workshop. In the Appeal Panel’s view, if an injured workers’ only capacity is to be engaged in employment in a sheltered workshop, then in effect their impairment in employability is total.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 November 2023 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: | W6894/23 |
Applicant: | Kathryn Robinson |
Respondent: | Meadowbank Education Inc |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric and psychological disorders | 17/11/2017 | Chapter 11 | 22% | - | 22% | |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
3
0