Secretary, Department of Education v Gray

[2024] NSWPICMP 129

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Education v Gray [2024] NSWPICMP 129
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Megan Jane Gray
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	7 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale, namely, travel; error found; re-examination considered necessary; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 21 September 2023 the employer 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 Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 August 2023.

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

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

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

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

2. The appellant did not request that the worker undergo a re-examination. However, as a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

EVIDENCE

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Further medical examination

1. Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 24 January 2024 and reported to the Appeal Panel.

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

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

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

   ·        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: 23 August 2017

   ·        Body parts/systems referred: Psychological/Psychiatric disorder

   Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	23/8/2017	11, page 55-60	14	22%	n/a	22%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					22%

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

“Table 11.8: PIRS Rating Form

Name	Megan Jane Gray	Claim reference number (if known)	W3258/23
DOB	xxxx	Age at time of injury	45
Date of Injury	23/08/2017	Occupation at time of injury	Teacher
Date of Assessment	08/08/2023	Marital Status before injury	Married

Psychiatric diagnoses	1. Major Depressive Disorder with Anxious Distress
Psychiatric treatment	Antidepressant medication, psychologist
Is impairment permanent?	Yes

PIRS Category			Class		Reason for Decision
Self Care and personal hygiene			2 Mild Impairment		Although Ms Gray occasionally needs prompting to attend to her self-care, she can live independently and look after herself adequately and independently ensure a minimum level of hygiene and nutrition. She may look unkempt occasionally, skip showering, is indifferent to her appearance and is not as meticulous with her self-care as before the injury.
Social and recreational activities			3 Moderate Impairment		Ms Gray rarely goes to social events and only when prompted by family or a close friend. She avoids going out without a support person. She is internally preoccupied, self-conscious and anxious in social and recreational settings. She has no hobbies or interests. She does not participate in previously enjoyed activities.
Travel			3 Moderate Impairment		Ms Gray does not travel away from her own residence without a support person. This is due to excessive anxiety and apprehension about running into someone from school.
Social functioning			2 Mild Impairment		Ms Gray’s existing relationships are strained and she feels like a burden on her family. She has been avoidant, irritable and withdrawn.
Concentration, persistence and pace			3 Moderate Impairment		Ms Gray is unable to read. She finds it difficult to follow complex instructions such as cooking. She has difficulty making decisions or organising herself. She doubts herself. She is forgetful and prone to losing things. There were no overt cognitive deficits during the assessment.
Employability			5		Ms Gray is totally impaired and cannot work at all.
Score										Median Class
2	2	3		3		3	5		=3
Aggregate Score Impairment								Total			%
2+2	+3	+3		+3		+5	18			22%

1. The employer appealed. The appeal concerned only the assessment made under one of the PIRS categories, namely travel.

2. In summary the appellant submitted that the Medical Assessor made an assessment on the basis of incorrect criteria and made demonstrable errors in his assessment under one of the PIRS categories, namely travel when he made errors which included the following:

   (a)    when he assessed a Class 3 for travel and a Class 2 should have been assessed.

3. In summary, the respondent worker, Ms Megan Jane Gray (the respondent), submitted that the Medical Assessor did not err and nor did he make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

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

5. The complaint on appeal is limited to the assessment for travel.

6. In respect of travel, Table 11.3 of the Guides provides as follows:

   Table 11.3: Psychiatric impairment rating scale – travel

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3	Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4	Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5	Totally impaired: may require two or more persons to supervise when travelling.

1. The Medical Assessor assessed a moderate impairment at Class 3 with the following reasoning:

   “Ms Gray does not travel away from her own residence without a support person. This is due to excessive anxiety and apprehension about running into someone from school.”

2. The appellant submitted that a Class 2 or mild impairment should have been assessed. The appellant submitted that the Medical Assessor’s assessment of a Class 3 for travel is inconsistent with the documented history and the Guidelines.

3. It is noted that Dr Allan, the Independent Medical Expert (IME) qualified on behalf of the appellant had assessed Class 2 for travel in his reports dated 17 November 2021 and again after review on 27 March 2022 respectively.

4. The Medical Assessor has to come to an independent assessment and assess in accordance with the criteria in the Guidelines using his own clinical judgment, but it must not be based upon self report alone and must not be inconsistent with the other evidence before him.

5. The Medical Assessor has stated that he specifically disagrees with the rating by Dr Allan of Class 2 for travel.

6. The Medical Assessor has explained why his opinion differed as follows:

   “I disagree with Dr Allan’s travel assessment as she will not leave the house unaccompanied.”

7. This assessment on its face is inconsistent with the history taken at the assessment that the respondent goes to the gym (half an hour away) with no history recorded of the trips to the gym necessitating the company of a support person.

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

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W3258/23
Appellant:	Secretary, Department of Education
Respondent:	Megan Jane Gray
Date of Determination:	24 January 2024
Examination Conducted By:		Professor Nicholas Glozier
Date of Examination:		24 January 2024

The examination was predominantly undertaken via the Teams platform, although for the last quarter of an hour or so my internet connection failed. We completed it via the phone with the permission of the worker and I believe a full assessment has been undertaken.

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

Ms Gray confirmed that she continued to be treated by her long-time psychiatrist, Davina Glendenning, on an approximately monthly basis. She is currently journalling her feelings, learning to sit with these and not avoid her emotions. She has changed general practitioners as the previous one relocated to Melbourne. She is slowly getting to know this general practitioner and sees her less frequently than the previous one. She consults both of these practitioners face-to-face in town and these appointments are some of the few times she leaves the home independently. She currently takes Pristiq 75mg which she has taken for 3½ years and 1mg or 2mg of Prazosin. She says she has low blood pressure and therefore cannot tolerate higher doses. She takes Diazepam two or three times a week when overly aroused. She recalled a number of prior medications she had taken under the supervision of Dr Bhandari. She stopped drinking alcohol since the injury. She does not smoke, vape, use illicit drugs or medicinal cannabinoids.

For her wellbeing she does little in the way of managing her diet, eating more junk food than previously, stating that ‘it’s too much hard work’ to eat healthily. She hates the term ‘mindfulness’ following a session at work, and does little else. She spontaneously noted that part of the appeal centred around her gym attendance. She says she gains benefit from this. She was attending a gym locally in Ashtonfield, up to two or three times a week, with the attendance in part being predicated upon her mood and function. She is encouraged and supported in this by her treating team and family. She was doing a Pilates and yoga class locally, approximately a 10-minute drive. However she saw two women from school and one admin lady and felt she could not continue at that gym. She moved to a much larger gym in Rutherford where, she had a paranoid experience, the teacher recommended a smaller gym in Cessnock, some 25 minutes away. She says she puts her ‘brave pants on’ to drive there at a similar frequency. She enjoys the instructor and small number of classes. She tries to only go in the mornings so she is back if she needs to prepare food or do things around the home for her husband Barry. She does not go to any supermarkets and tries to shop online with the girls going in-between. She noted that when she drives there are a number of aspects of her hometown that she avoids, e.g. driving past the school or driving during the times when staff members will be either going to or leaving school.

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

Ms Gray continues to live with her husband Barry. Her eldest daughter Kendall has returned from the Scottish Ballet because they were unable to support her financially and she is working at a café and has enrolled in university. The 20-year-old daughter Airlie now does shift work at KFC. She said that her loss of income and state has meant that she has ‘done a number on them.’ Her other support network consists of her parents just down the road and her sister less than 10 minutes’ drive away. She says she tries to not tell her parents much but her sister ‘knows everything.’ There are three close colleagues who have been through similar events whom she remains in contact with and she has two old school friends. One lives about 20 minutes’ drive away and the other one lives in Florida but came back for her father’s funeral. She caught up with these friends although did not go out for anything particularly social but rather to each others’ home when the one who lives in Florida had returned. She gets up around 10am in the morning and says she does little for much of the day, often being on the lounge watching the same series, Dance Mums, over and over again. She says she is not necessarily overly miserable but does not enjoy anything. There is tension with Barry because of her reduced function and he has had to take over more tasks, e.g. cooking some of his own meals, whilst the girls do their own cleaning and she finds it hard to undertake household chores although will do some. She does little with the girls now and says she does nothing with Barry who is under significant pressure himself. She won’t go out for social events with them anymore. The family have not taken any holiday since last February. Finances are tight because she is not in receipt of workers' compensation payments and this has affected their ability to support their daughter’s career, manage their day-to-day finances, pay their mortgage and places extra stress on her husband. She said she has used her TPD to pay down some of their mortgage a couple of years ago. Beyond her occasional appointments she has little in the way of any day-to-day activities or routine and finds many things too hard. Otherwise the history is much as obtained by the MA.

3.   Findings on clinical examination

Ms Gray was casually-dressed and not unkempt. Her mood was somewhat fragile and she was tearful quite easily during the assessment. Although she does not describe herself as pervasively miserable, she says she can easily be moved to tears if she talks about events and described so little enjoyment in anything that she borders on anhedonia. She has significant negative cognitions about herself being a burden, not wanting to be here, bordering on suicidal ideation, as well as guilt. She has not had any panic attacks for some time but can be easily aroused by her own ruminations when being driven by Barry if he ‘drives like a typical man’ and even such things as following the Israel-Palestine conflict on social media which she has ‘unfollowed.’ Items about teaching that may pop up on her Instagram feed will also cause her to become aroused with physiological sensations. She is less tolerant of conflict, noise and has also withdrawn from Facebook. She is cautious and wary e.g. when in a car and prefers not to be out, being fearful of being seen. She knows rationally that her extensive rumination about what happened at work is not helpful but finds it very difficult to stop. Although she goes to bed between 11pm and midnight, it generally takes her some hours to fall asleep, lying there going events and what might be happening. She may eventually take a Valium or over-the-counter sleep medication. Once off, apart from going to the toilet she then wakes in the late morning, thus in fact gaining a low-normal sleep duration of between 6-7 hours but of a delayed phase. She feels anergic with little motivation or meaning. Her appetite has been reduced and she noted the use of junk food and chocolate, now ‘a basic food group.’

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

Nil.

Summary

Ms Gray continues to meet the criteria for a Major Depressive Disorder with Anxious Distress with similar symptoms and function to that identified by the MA.

She spontaneously acknowledged the focus of the interview and was open that she leaves the home on her own for a number of activities over the month, primarily appointments and gym attendance, although attendance is not always regular. During these she will avoid specific times and places but there is an ability to travel independently in familiar and unthreatening locations although for everything else she only goes if accompanied. For instance, at Christmas this year, although Barry drove to the Central Coast, she was able to drive back, such that she did not have spend too long but would only have been able to do so if accompanied by him. This meets the criteria for a class 2 travel impairment.

Signed:    Professor Nicholas Glozier

Date:       24 January 2024”

1. The Appeal Panel adopts the findings and the report of Medical Assessor Glozier.

2. This means that the whole person impairment assessment is recalculated using travel at Class 2 to give a total WPI of 19% (based upon a median score of 3 and an aggregate impairment of 17).

3. For these reasons, the Appeal Panel has determined that the MAC issued on
   24 August 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:	W3258/23
Applicant:	Megan Jane Gray
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 Clayton Smith 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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	23/8/2017	11, page 55-60	14	19%	n/a	19%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					19%