Scott v Secretary, Department of Education
[2025] NSWPICMP 25
•10 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Scott v Secretary, Department of Education [2025] NSWPICMP 25 |
| APPELLANT: | Sandra Scott |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Doug Andrews |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 10 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychiatric injury; challenge to three of the psychiatric impairment rating scale (PIRS) categories (social and recreational activities, concentration persistence and pace, and employability); whether Medical Assessor considered relevant information; whether assessments under the PIRS were consistent with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Held – MA applied incorrect criteria, Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 October 2024, Sandra Scott, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Ronald Gill, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
5 September 2024.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.
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).
RELEVANT FACTUAL BACKGROUND
Ms Scott was employed as a school counsellor by the respondent, working at North Sydney Girls High School. She suffered a psychological injury during the course of employment. Ms Scott was involved in the care of three students who committed suicide within a period of 18 months. The deaths, as well as the unsupportive workplace environment, contributed to her psychological injury. The injury was deemed to have occurred, for the purposes of a claim made for lump sum compensation, on 18 January 2024. Ms Scott ceased work in November 2021.
Ms Scott brought a claim to the Personal Injury Commission for lump sum compensation, based on an assessment of permanent impairment made by Dr Kumagaya. That claim was disputed only to the extent of the degree of permanent impairment, and accordingly was referred straight to a Medical Assessor for assessment. That assessment took place on 23 August 2024, with the resultant MAC being issued on 5 September 2024.
The Medical Assessor assessed a total whole person impairment of 9%, below the relevant threshold for lump sum compensation. Ms Scott appeals against that assessment.
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 worker to undergo a further medical examination because there was sufficient information before the Appeal Panel, contained in the MAC, the original MAC brief, and the submissions of the parties, to determine the matter on the papers.
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.
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, the appellant raises four grounds of appeal, targeted at three of the Psychiatric Impairment Rating Scales (PIRS), being social and recreational activities, concentration, persistence and pace, and employability. In each case the appellant submits that the Medical Assessor failed to properly assess the evidence and findings in respect of the functional impairment caused in each scale, as well as an overarching submission that the Medical Assessor considered irrelevant matters and failed to consider relevant matters in each targeted PIRS.
The more detailed submissions provided against each PIRS will be discussed below.
In response, the respondent submits that the matters raised do not provide a basis for the ground of appeal, and it was open for the Medical Assessor to assess the worker as he has provided in the MAC. The Medical Assessor provided adequate reasons for his assessment, and his classifications ought not be disturbed. Any submission that one of the PIRS classes is “more appropriate” than another reflects a difference of opinion and should not be accepted.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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. 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.
The Appeal Panel will deal with the submissions as presented by the appellant; that is by considering each of the addressed PIRS challenged on appeal. Assessment of psychological injury is made in accordance with the Guidelines by utilising the class descriptors contained in the PIRS. The behavioural consequences of a psychological injury are assessed on six scales, with each scale evaluating an area of functional impairment (cl 11.11 of the Guidelines). The descriptors contain examples of activities, but these are examples only (cl 11.12 of the Guidelines).
Social and recreational activities
The Medical Assessor assessed Ms Scott under class 2 for this PIRS. The appellant submits that the Medical Assessor should have assessed class 3.
In the PIRS rating form on page 16 of the MAC, the Medical Assessor provides the following reasons for assessing class 2:
“Ms Scott has markedly reduced her participation in social and recreational activities since the onset of her psychiatric condition. While she occasionally attends social events, these instances are infrequent and typically occur only after encouragement from her husband. When she does engage in these activities, she often remains withdrawn and minimally involved. This consistent pattern of reduced social engagement, coupled with her reluctance to participate without external motivation, supports a classification of mild impairment.”
The criteria for assessment of this PIRS is contained in table 11.2. The relevant classes for consideration are:
“Class 2 Mild impairment: Occasionally goes 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.”The appellant submits that this PIRS looks to the extent to which the injury has impaired a worker’s ability to go out into public and attend and be involved in events where there are other people participating. The Appeal Panel general agrees with the categorisation of this PIRS.
The appellant submits that the evidence and findings of the Medical Assessor are inconsistent with the conclusion reached of class 2 impairment.
On page 3 of the MAC, the Medical Assessor sets out Ms Scott’s restrictions in social activities/activities of daily living:
“Ms Scott’s ability to engage in social activities and perform activities of daily living (ADL) has been significantly impaired by her psychiatric condition. She has become increasingly socially withdrawn, avoiding interactions with friends and family. Her participation in recreational activities has diminished substantially, and she no longer derives pleasure from activities she previously enjoyed.”
The respondent submits that there is no evidence attached to the Application or Reply to suggest that Ms Scott is unable to go out without a support person, and whilst not determinative, on balance, the assessment of class 2 should not be disturbed.
The Appeal Panel accepts the appellant’s submissions. Whilst reasonable minds may differ on the assessment of impairment, the basis of the Appeal Panel’s conclusion is not a difference of opinion. It is a matter of the Medical Assessor’s conclusion in assessing class 2 being inconsistent with the evidence before him. The reasons contained in the PIRS rating form, as well as the history taken in the body of the MAC, are inconsistent with an assessment of class 2.
The evidence contained in the MAC is that she is “socially withdrawn”, and no longer derives pleasure from activities she previously enjoyed. She will only attend events through the encouragement of her husband, and her attendance is markedly reduced since the onset of her psychiatric condition. Ms Scott’s statement describes an extreme change in her social and recreational activities compared with pre-injury, including the loss of hobbies such as swimming and playing tennis.
Dr Kumagaya takes a history that her psychological symptoms have prevented her from engaging in “gym, engagement in the creative arts, and swimming” since her injury. Dr Goodison records that “she has not in fact attended any social events in the last year”. Both independent medical experts assessed class 3 in this PIRS.
The consistent history across all of the material, including in the MAC, is of a reluctance or outright inability to attend any social events. The Medical Assessor applied the incorrect criteria in reaching his conclusion on class alignment by failing to consider that material, or considering it incorrectly. The correct conclusion, based on that all of that material, is an assessment of class 3 impairment.
Concentration, persistence and pace
The Medical Assessor assessed Ms Scott under class 2 for this PIRS. The appellant submits that the correct assessment is class 3.
The Medical Assessor provided the following reasons for his assessment in the PIRS table on page 17 of the MAC:
“Ms Scott has reported significant difficulties with concentration and cognitive endurance. She struggles to focus on tasks requiring sustained mental effort, particularly those that are complex or demanding. Her cognitive fatigue manifests after short periods of concentration, leading to frustration and an inability to
complete tasks as efficiently as she previously could. This consistent difficulty in maintaining concentration, along with the reported impact on her ability to
perform intellectual tasks, supports a classification of mild impairment.”The Medical Assessor earlier took the following history of cognitive impairment:
“Ms Scott was fully oriented to time, place, and person, indicating no cognitive impairment in orientation. However, she reported significant difficulties with concentration, memory, and decision-making. These cognitive impairments were evident during the examination, as she had to pause to recall information frequently and struggled to maintain focus on the conversation. She described her concentration as “scattered” and expressed frustration with her inability to complete tasks that require sustained mental effort. These cognitive deficits are consistent with her depressive disorder and the ongoing impact of chronic stress and anxiety.”
The relevant criteria for concentration, persistence and pace is in table 11.5 of the Guidelines. Classes 2 and 3, the relevant classes for consideration in this appeal, are as follows:
“Class 2 Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3 Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”The appellant submits that there is simply no evidence that supports a class 2, and that the Medical Assessor ignored relevant evidence before him. In response, the respondent submits that the classification of class 2 was open to the Medical Assessor and ought not be disturbed.
The Appeal Panel accepts the appellant’s submissions.
The reasons provided in the MAC are inconsistent with an assessment of class 2. The Medical Assessor makes minimal reference to the criteria in the Guidelines, making reference only to a difficult to focus on tasks (which the Guidelines describes as “intellectually demanding tasks”). Appreciating that the examples given are examples only, it is it the Appeal Panel’s view that the Medical Assessor has failed to grapple with the criteria set out in the Guidelines. No apparent consideration has been given to the criteria in class 3, which concerns an ability to follow complex instructions, or undertake more complex tasks. Further, the reasons provided set out a difficulty sustaining concentration on tasks, which would be inconsistent with an ability to focus on intellectually demanding tasks for periods of up to 30 minutes. It is the Appeal Panel’s view that the Medical Assessor has applied the incorrect criteria by not considering the requirements of class 3 at all.
This is further emphasised by the recorded difficulty Ms Scott experienced during the examination, which is set out above. The cognitive impairments included difficulties with maintaining focus on the conversation and the need to pause for recall. These are subjective factors, observed by the Medical Assessor during the examination (as opposed to Ms Scott’s self-report of functioning) and further underpin Ms Scott’s reported restrictions in functioning in this PIRS. It is apparent that the Medical Assessor has not appropriately considered these factors in his assessment. These factors also give weight to the conclusion that class 3 is the correct assessment for this PIRS.
Accordingly, the Appeal Panel are satisfied that the correct assessment in this PIRS is class 3.
Employability
The Medical Assessor assigned class 3 under this PIRS. The appellant submits that the Medical Assessor should have assessed either class 4 or class 5.
The Medical Assessor provides the following reasons for his assessment on page 17 of the MAC:
“Ms Scott’s psychiatric condition has rendered her unable to return to her previous role as a school counsellor. Her symptoms, including persistent anxiety, low mood, and cognitive difficulties, have significantly affected her capacity to work in any demanding role. Although she has been considered for a return-to-work trial in a less demanding position, she has not felt well enough to initiate this process. Her current inability to
engage in employment, combined with the likely need for significant accommodations if she were to attempt work, justifies a classification of moderate impairment.”The criteria in the Guidelines for employability are contained in Table 11.6:
“Class 3 Moderate impairment: Cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
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 appellant submits that the Medical Assessor has failed to consider the requirements of attending work. Employability under the PIRS looks to an injured worker’s ability to work in the real world. The evidence demonstrates that the appellant would struggle to work in an environment that requires compliance with direction, focus, interaction and more. A proper consideration of the evidence would not result in a class 3.
In response, the respondent submits that it was open for the Medical Assessor to assess class 3 for employability. The respondent referred to some supporting evidence in that regard, including reports made to Dr Goodison of offers made to Ms Scott concerning return to work, and the assessment of Dr Goodison which was class 2.
The Appeal Panel accepts the appellant’s submissions.
The Medical Assessor has not explained how he has reached a conclusion that class 3 impairment would be appropriate. The reasons provided do not appropriately grapple with the criteria set out in Table 11.6 of the Guidelines. The conclusion reached, of a capacity to work for less than 20 hours per week in a different position, is inconsistent with the history taken of significant symptoms including anxiety, low mood, and cognitive difficulties.
Within the evidence before the Medical Assessor there is some demonstrated ability to perform limited amounts of work. Ms Scott’s statement sets out her history of working as a private counsellor working three to eight hours per month. The most recent certificate of capacity available, which is for the period 22 March 2024 to 22 May 2024, provides a capacity for some type of work for seven hours, one day a week. This evidence is far below the requirements of class 3 impairment, which would be closer to (but less than) 20 hours per week.
The Medical Assessor has applied incorrect criteria in concluding that Ms Scott is a class 3 in this PIRS. He has not considered Ms Scott’s certified capacity nor her reported functioning during assessment. There is no evidence that Ms Scott would be able to work for more than a day or two at a time, and certainly not anything close to 20 hours per week.
The evidence is entirely consistent with class 4 impairment. Ms Scott has some, albeit it very limited, capacity for employment. That capacity is certified to be for seven hours per week. The criteria for an assessment under class 4 in Table 11.6 is an inability to work more than one or two days at a time, less than 20 hours per fortnight, with reduced pace and erratic attendance. Based on the history taken by the Medical Assessor and the supporting material contained in the material available to the Appeal Panel, the correct assessment is class 4.
Conclusion
For the reasons given above, the Appeal Panel are satisfied that the Medical Assessor has reached his conclusion by applying incorrect criteria. The Appeal Panel accepts the appellant’s submissions in respect of each PIRS challenged and accordingly will revoke the MAC.
The score in ascending order will be 2, 2, 2, 3, 3, 4, for a median class of 3.
The aggregate score will be 16.
This is a whole person impairment of 17%. The Medical Assessor has included an effect of treatment of 2%. This has not been challenged on appeal and is added to the assessed impairment under the PIRS, resulting in 19% whole person impairment.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W22494/24 |
Applicant: | Sandra Scott |
Respondent: | Secretary, Department of Education |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ronald Gill 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) |
| 1. Psychiatric | 18/1/24 deemed | Chap 11 – page 54-60 | 19% | Nil | 19% | |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
2
0