Secretary, Department of Education v Baxter

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Education v Baxter [2023] NSWPICMP 485
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Michelle Baxter
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	3 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant relied on grounds for appeal provided in section 327(3)(b), (c) and (d); appeal based on grounds for appeal in section 327(c) and (d) relied on the same evidence on which the appellant relied in support of the ground for appeal in section 327(3)(b); Appeal Panel held that the appellant did not establish that the information within that evidence could not reasonably have been obtained by appellant before the medical assessment and hence the ground for appeal provided in section 327(3)(b) was not established; Appeal Panel also held that because the appellant did not establish that it could not reasonably have obtained that evidence before the medical assessment the Appeal Panel was unable to receive it pursuant to section 328 with the consequence that the grounds for appeal in s327(c) and (d) were also not established; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 June 2023 the Secretary, Department of Education, 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 15 May 2023.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

Michelle Baxter, the respondent, was employed as a student learning support officer for a period of around 20 years at the King Street Public School in Singleton. Her last day of work was in November 2020. Due to incidents that occurred within her employment she suffered a psychological injury.
Consultant psychiatrist Dr Ben Teoh assessed the respondent had 15% whole person impairment (WPI) from her injury. On 9 March 2022 the respondent’s solicitors, relying on that assessment, wrote to the appellant’s insurer advising the insurer that the respondent claimed compensation from it under s 66 of the Workers Compensation Act 1987 for permanent impairment from her injury.
The insurer then organised for the respondent to be examined by consultant psychiatrist
Dr Clayton Smith on 14 June 2022. He advised the insurer in a report dated 12 July 2022 that he considered the respondent had not achieved maximum medical improvement. It seems, based on the content of his report that, because he formed that view, he did not assess the respondent’s permanent impairment from her injury.
On 12 August 2022 the insurer wrote to the respondent, care of her solicitors, notifying her under s 78 of the 1998 Act that it disputed she was entitled to “permanent impairment lump sum compensation” for her injury. It noted within the s 78 notice that her claim was based on Dr Teoh’s assessment and that it had arranged for her to be assessed by Dr Smith in order to be able to respond to her claim for permanent impairment compensation. It noted that
Dr Smith considered her injury had not reached maximum medical improvement. It advised that “in accordance with Dr Smith’s assessment and opinion that you have not reached maximum medical improvement, we dispute that you are entitled to lump sum compensation pursuant to s66 of the Act”.
The respondent then initiated proceedings in the Personal Injury Commission (Commission), by filing an Application to Resolve a Dispute dated 21 October 2022, seeking determination of her clam for compensation. The appellant filed a Reply to that application out of time on
21 November 2022.
On 27 January 2023 a delegate of the President of the Commission issued an Amended Referral to the Medical Assessor requiring him to assess the medical dispute between the parties. The medical dispute was described in the referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury (s319(c))
 whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 11 March 2021 (deemed)
Body part/s referred: Psychiatric / psychological disorder
Method of assessment: Whole person impairment”
The Medical Assessor examined the respondent on 3 May 2023 and, as said above, issued the MAC in response to the referral on 15 May 2023. In that, he certified the respondent had 17% WPI from her injury.

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 respondent to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established and, consequently, the Appeal Panel would be confirming the MAC. Hence, the Appeal Panel did not need to re-assess the medical dispute or correct any errors. There was no need for the Appeal Panel to obtain any further clinical data.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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 have been considered by the Appeal Panel and to the extent necessary for the Appeal Panel to explain its reasons, the Appeal Panel has paraphrased those submissions below under the heading “Findings and Reasons”.

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.
All of the grounds for appeal upon which the appellant relied relate to the Medical Assessor’s rating of the respondent’s impairment in the Psychiatric Impairment Rating Scale (PIRS) for employability.
In support of its appeal on all grounds for appeal on which it has relied, the appellant seeks the Appeal Panel receive into evidence the following documents:
(a) an injury management consultation report of Dr Ian Smith injury management consultant general practitioner dated 17 May 2023 and addressed to “Ms Bonita T” whom Dr Smith described as a return to work specialist at the appellant’s insurer, and
(b) a certificate of capacity/certificate of fitness that the respondent’s general practitioner (GP), Dr Mitchell Tanner, prepared and signed on 2 June 2023 and which the respondent also signed on 2 June 2023.
Dr Smith in his report of 17 May 2023 thanked Ms T for referring the respondent for injury management assessment. He details that a consultation between him and the respondent occurred on 15 May 2023 using the software platform Zoom. Dr Smith noted in the following terms Ms T’s reason for referring the respondent to him:
“You have referred Ms Baxter to clarify the return to work goal and time frames noting stagnated low-level work capacity for 6 hours one day per week. She downgraded from 6 hours, two days per week in February.”
The Appeal Panel notes, for the purpose of clarity, that Ms T, to whom Dr Smith addressed his report of 17 May 2023, is likely to be Ms Bonita Tang. Dr Smith within the body of his report noted that he had left a voice mail message with Ms Tang to discuss his report.
In his report Dr Smith recorded the respondent’s employment history, the history of her current condition, her past medical history and her current condition. He noted the treatment the respondent was receiving. He briefly recorded his findings from his examination of the respondent.
Dr Smith also noted in his report that he contacted the respondent’s GP by telephone on
17 May 2023. He said he “fully discussed this matter” with the respondent’s GP. Dr Smith noted that the respondent’s GP had only been treating the respondent since 2022, having then taken over her treatment from the respondent’s prior GP.
Dr Smith said the following in his report regarding the respondent’s capacity for employment:
“She is fit to work two days per week away from the triggering school, I do not believe
there is any impediment to her working in a similar role in different location with the
Department of Education.
She does need a formal vocational assessment. We discussed other options such as working in the disability sector, which Ms Baxter is happy to do.
A lot of factors play into her mental health, as detailed in the body of this report.
Once she is back in the workplace, there is no reason in principle why she should not be able to rapidly upgrade back to full hours of work and at today's consultation she specifically articulated that this was indeed her plan.
Her application to work at her granddaughter's school indicates that, with sufficient Motivation, Ms Baxter could do a graded return to her normal job. It is unclear why she would not be able to work full time in a similar role given that the generator of this claim was the loss of her job which she had wanted to continue in full time and which she sees as therapeutic for her pre-existing mental health issues.”
Dr Smith said in his report that the respondent’s GP supported his recommendations regarding the respondent’s capacity for work and that the respondent’s GP “will facilitate a certificate for two days per week”.
In the certificate of capacity/certificate of fitness the respondent’s GP and the respondent signed on 2 June 2023 the respondent’s GP provides a diagnosis of the respondent’s injury as chronic adjustment disorder with anxious mood and depression secondary to work. He notes that the respondent’s current medication is Sertraline and Temazepam. He details that the respondent “has some capacity for some type of work from 02/06/23 to 03/07/23 for 16 hours/week multiple days/week”.
The appellant submits that the additional relevant information in the form of Dr Smith’s report and the certificate of capacity the respondent’s GP prepared was not reasonably available and could not reasonably have been obtained by it before the medical assessment. The appellant did not specify within its submissions why that further information could not have been obtained before 15 May 2023.
The Appeal Panel observes from Dr Smith’s report that it was an event that occurred in February 2023 that gave rise to the appellant’s insurer seeking Dr Smith to examine the respondent and report to it on its examination. That event was described by Dr Smith as the respondent downgrading her work hours from “6 hours, two days a week”. The Appeal Panel therefore notes that it was somewhere between two to three and a half months between the occurrence of that event and Dr Smith consulting with the respondent and with the respondent’s GP. His report related to the data obtained from those consultations as well as other unidentified documents the insurer provided him.
There is nothing that the appellant has provided to the Appeal Panel that explains the delay between the occurrence of the event that led to it seeking a report from Dr Smith and
Dr Smith consulting the respondent and the respondent’s GP and thereafter providing the insurer with a report.
The fact that the report of Dr Smith is dated after the Medical Assessor’s assessment of the respondent is not sufficient, of itself, for the report to fall within the description of the ground for appeal provided in s 327(3)(b) of the 1998 Act.[2] It is necessary that the information within the report could not reasonably have been obtained by the appellant before the Medical Assessor conducted his medical assessment in order that the information can substantiate the ground for appeal.
[2] State of New South Wales v Ali [2018] NSWSC 1783 at [32]; CSR Ltd v Ewins [2020] NSWSC 511 at [43]-[50].
Absent some explanation for the delay between the event that precipitated the appellant’s insurer seeking a report from Dr Smith and Dr Smith consulting the respondent and reporting to the insurer, the Appeal Panel cannot be satisfied that the additional information contained within Dr Smith’s report could not reasonably have been obtained by the appellant before the medical assessment. Consequently, the ground for appeal provided within s 327(3)(b) cannot be upheld based on the information within the report of Dr Smith.
The Appeal Panel observes that the certificate of capacity/certificate of fitness the respondent’s GP completed on 2 June 2023 and which the respondent also signed on that date, postdates the medical assessment. However, it is apparent from Dr Smith’s report of
17 May 2023 that what precipitated the GP’s certification was the discussion that occurred between him and Dr Smith on 17 May 2023. Had the discussion between the two occurred earlier, then the certificate of capacity/certificate of fitness would obviously have also been generated earlier. Again, noting the length of time between the event that precipitated
Dr Smith’s engagement by the insurer in this matter and Dr Smith consulting with the respondent’s GP, absent some explanation from the appellant regarding the delay or some material being provided that explains that delay, the Appeal Panel cannot be satisfied that the additional information contained in the GP’s certificate of capacity/capacity of fitness, being that he considers the respondent is capable of some work, could not reasonably have been obtained by the appellant prior to the medical assessment. Consequently, that certificate of capacity/capacity of fitness cannot substantiate the ground for appeal provided in s 327(3)(b) of the 1998 Act.
The appellant’s appeal relating to the ground for appeal provided in s 327(3)(d) of the 1998 Act relies on the reports of Dr Smith dated 17 May 2023 and certificate of capacity/capacity of fitness the respondent’s GP signed on 2 June 2023. The appellant submitted that this further evidence demonstrates that the Medical Assessor’s rating of class 5 for the respondent’s impairment in the category of employability was an error.
In order that the Appeal Panel can receive that evidence under s 328(3) to consider whether it substantiates the ground for appeal provided in s 327(3)(d), the Appeal Panel must be satisfied that the evidence could not reasonably have been obtained by the appellant before the medical assessment. For reasons just explained when considering whether the ground for appeal provided in s 327(3)(b) was established, the Appeal Panel cannot be so satisfied and consequently cannot receive into evidence Dr Smith’s report or the certificate of capacity/capacity of fitness.
In any event, the evidence is unable to demonstrate the MAC contains an error and hence it is not probative to the ground for appeal provided in s 327(3)(d) of the 1998 Act. This is because evidence that goes beyond the face of the MAC cannot be relied on to substantiate the MAC contains a demonstrable error.[3] In other words, it cannot readily be demonstrated from the face of the MAC that the MAC contains a demonstrable error if a party has to adduce further evidence to substantiate the error in the MAC.
[3] Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 [46]-[49].
With respect to the appellant’s appeal and relying on the ground for appeal provided in
s 327(3)(c) of the 1998 Act, the appellant merely asserts that the assessment was based on incorrect criteria. The appellant does not specify how that is the case. The Appeal Panel observes that the Medical Assessor utilised the criteria as set out in chapter 11 of the Guidelines. Consequently, the Medical Assessor applied the correct criteria to assess the respondent’s permanent impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 May 2023 should be confirmed.

[2023] NSWPICMP 485

3 October 2023