Sexton v Northern NSW Helicopter Rescue Service t/as Westpac Rescue Helicopter
[2024] NSWPICMP 383
•17 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sexton v Northern NSW Helicopter Rescue Service t/as Westpac Rescue Helicopter [2024] NSWPICMP 383 |
| APPELLANT: | Melissa Jane Sexton |
| RESPONDENT: | Northern NSW Helicopter Rescue Service t/as Westpac Rescue Helicopter |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 17 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of a one-tenth deduction under section 323 as well as error in assessments under two of the Psychiatric Impairment Rating Scale categories of self-care and personal hygiene, and social and recreational activities; Held – Appeal Panel satisfied as to error and required a re-examination; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 March 2024 the worker Ms Melissa Jane Sexton (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 an amended Medical Assessment Certificate (MAC) on 6 February 2024
The appellant relies on the following ground 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 grounds 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).
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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested that the she undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination because the Appeal Panel found error.
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 Douglas Andrews of the Appeal Panel conducted an examination of the worker on 31 May 2024 and reported to the Appeal Panel on 31 May 2024.
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.
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. 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 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):
· Date of injury: 11/09/2018
· Body parts/systems referred: Psychiatric/psychological disorder
· Method of assessment: Whole person impairment”
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 guidelinesChapter, 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 Injury
Chapter 11
Guidelines
11.1-11.3
11.4-11.6
Guidelines
11.11,11.12
Table
:11.1,11.2,11.3,11.
5,11.5,11.6
8%
1/10 of 8 = 0.8
8 - 0.8 = 7.2
Total % WPI (the Combined Table values of all sub-totals)
7%
The assessment was based on her assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
Name
Melissa Jane Sexton
Claim reference number (if known)
W4761/23
DOB
Age at time of injury
50
Date of Injury
11.08.2018
Occupation at time of injury
Volunteer Coordinator
Date of Assessment
29.01.2024
Marital Status before injury
Married
Psychiatric diagnoses
1. Major Depressive Disorder
2.
3.
4.
Psychiatric treatment
Yes.
Is impairment permanent?
Yes.
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
1
Ms Sexton shower regularly and looks after herself well. She said that she stays in her pyjamas and is not bothered by her appearance and looks. She said that she has two meals a day as compared to having three a day previously. I did notice during the appointment that her nails were done.
Social and recreational activities
2
Ms Sexton used to enjoy running club and two half marathons, trained three mornings a week, and enjoyed working. She said that she is, however, not able to engage in any of these activities. She is, however, able to attend Pilates class every Thursday. She sees her friend who lives in Ballina once a month and, at times, her friend comes over to her house. She has not gone out for hiking as her best friend has moved to Brisbane. She has stopped going out for plasma donation which she enjoyed, as she once saw her boss over there. She said that she is able to see her personal trainer twice a week but does not attend the gym and used to see her personal trainer at her trainer’s house 10 minutes away. I believe that this warrants mild impairment in her social and recreational activities. She is able to go out for her Pilates class without a support person.
Travel
2
Ms Sexton reported that she is able to go to nearby shops and goes to farmer markets to get fresh produce. She prefers to go with her husband to get groceries. She attended a wedding in Brisbane about two years back and stayed there for three nights.
Social functioning
2
She said that her husband has been “quite supportive” through all of this. She said that her mom and her stepfather live near her and her mom has been diagnosed with dementia, and hence, she cannot depend on her mom. However, she also finds her friend very supportive and understanding and is able to rely on them.
Concentration, persistence and pace
3
Ms Sexton reported that even though her memory is “okay,” she is not able to read books and has to reread the same pages as she gets distracted very soon. She said that she switches on the TV but is unable to focus on TV for long and gets distracted within a couple of few minutes. She also reported that it is a struggle for her to multitask as she does not have sufficient concentration to focus and complete the tasks.
Employability
5
Ms Sexton does not have any realistic capacity to engage in any form of employment, given the significant symptoms she has and the impairment in her concentration, persistence, and pace.
Score
Median Class
1
2
2
2
3
5
=2
Aggregate Score Impairment
Total
%
+1
+3
+5
+7
+10
15
8
Deduction for any pre-existing condition or abnormality: I have deducted 1/10 for secondary psychological issues arising from her back injury in 2018.
1/10 of 8 = 0.8
Final WPI = 8 - 0.8 = 7.2 = 7
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments she made under two of the PIRS categories, namely self care and personal hygiene and social and recreational activities, including, in summary, as follows:
(a) in assessing a class 1 for self care and personal hygiene;
(b) in assessing a class 2 for social and recreation activities;
(c) by failing to engage with the history, and
(d) by taking into account irrelevant considerations.
The appellant also submitted that the Medical Assessor made a demonstrable error and/or an assessment on the basis of incorrect criteria when she made a one-tenth deduction under s 323 to account for “secondary psychological issues arising from her back injury in 2018.”
In summary, the respondent employer, Northern NSW Helicopter Rescue Service Limited t/as Westpac Rescue Helicopter (the respondent), submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
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.
The path of reasoning disclosed by the Medical Assessor must be adequate. The PIRS assessments of impairment must take the relevant criteria into account. The Appeal Panel was satisfied as to error because the history taken by the Medical Assessor was inadequate and irrelevant criteria were taken into account in the assessment made under the PIRS categories of self-care and personal hygiene (where the Medical Assessor took account that the workers nails were done but did not question the appellant about this) and social and recreational activities (where the medical assessor took into account attendance at Pilates without a support person despite pilates being part of the rehabilitation required for her back injury) . The Appeal Panel also considered that error was made with respect to the s 323 deduction because the medical assessor failed to explain how the impairment from the secondary psychological injury contributed to the overall level of permanent impairment assessed as a result of the primary psychological injury. In these circumstances the Appeal Panel was satisfied as to error and considered a re-examination was necessary.
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 Douglas Andrews was appointed to conduct the re-examination and he reported to the Appeal Panel as follows: (emphasis in original)
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W4761/23 |
Appellant: | Melissa Sexton |
Respondent: | Northern NSW Helicopter Rescue Service Ltd t/as Westpac |
Examination Conducted By: | Dr Douglas Andrews |
Date of Examination: | 31 May 2024 |
1. The worker's medical history, where it differs from previous records
Ms Sexton commenced work with Northern NSW Helicopter Rescue Service (Helicopter Rescue) in April 2013, working approximately 30 hours weekly as a Volunteer Coordinator. She was responsible for more than 500 volunteers and seven op shops. She described a busy, ‘incredibly stressful’ job that could not be easily accomplished in the hours available. She coped reasonably well until 2017 when there was a restructuring and change in governance. Her work situation became ‘chaotic’, and she felt inadequate support from management. She left her employment in September 2018 and has not worked in any capacity since, paid or voluntary.
The medical assessor (MA) considered that she had developed a major depressive disorder.
Ms Sexton injured her back in 2017 and again in 2018.
She lives with her husband Ross, a mine worker in Queensland, who has been doing this job for fifteen years. He works one week away and has a week at home, but with travel, he is home for only five days a fortnight. They have no children, but Ms Sexton has four dogs.
Ms Sexton had no mental health problems before commencing work with Helicopter Rescue. She had a period of depression in 2015, which she said was due to grieving the death of a dog that she had owned for 16 years. Because she had never had children, she was particularly close to her dogs. She was put on sertraline and used it for a few months. She recovered from her grief and remained well until the workplace problems commenced in 2017. Contemporaneous medical records written by Dr Felicity Booy in July and November 2015 mention, ‘Dog died four months ago… Ongoing work stressors’ and ‘Husband – ongoing stress relationship stable but not improved.’ By November, Dr Booy commented, ‘More in control at work… Feeling more confident and happy in self.’
2. Additional history since the original Medical Assessment Certificate was performed
Ms Sexton continues to live with her husband at Wollongbar in a freestanding house.
She consults general practitioner Dr Ellie Kennedy and has continued to use sertraline 100 mg daily, the only antidepressant that she has ever been prescribed. She had been seeing a psychologist, Mr Matt Wagner, whom she initially found helpful but later felt she was not making progress. She hasn’t seen Mr Wegner in more than six months. She has not consulted a psychiatrist for treatment.
Overall, she feels that her condition has deteriorated since she left work.
She has continued problems with her lumber spine. She occasionally uses paracetamol and said, ‘I’ve learned to manage it.’ Once a year, she attends St Vincent’s Private Hospital, where she has radiofrequency denervation, which is effective in controlling her pain. Her only other condition is hypothyroidism, for which she takes thyroxine sodium.
Current Symptoms
Ms Sexton has a pervasive low mood and anxiety. She often feels worse in the afternoon as she becomes more fatigued. Her somatic symptoms include headaches and abdominal upset.
She often feels anxious and overwhelmed, concerned that she burdens her husband. She feels useless. She struggles to get organised and has subjective problems with concentration, attention and memory.
She is irritable and easily frustrated.
She had an overdose of alcohol and pain medication two years ago and continues to have thoughts of death or suicide but no active plans.
She suffers from initial and middle insomnia with distressing dreams. She is often fatigued and sleeps during the day.
She has absent libido and has not had sexual intimacy with her husband for several years.
She has increased her alcohol intake so that she now drinks 3-4 bottles of wine weekly. She has occasional days off. She has also increased smoking. She initially smoked cigarettes when she was a teenager but had ceased and was not smoking when she commenced work with Helicopter Rescue.
Since leaving work, she has gained 10 kg and now weighs 105 kg. At 167 cm, her BMI is 37.6, in the severely obese range.
Activities of Daily Living
Ms Sexton usually rises around 7 AM. Her routine does not vary greatly between when her husband works and when he is at home.
She does the necessary housework, including cleaning and laundry.
She showers and wears clean clothes daily.
She eats a poor-quality diet, usually skipping one meal a day. She may have breakfast of a smoothie or porridge. Mid-afternoon, she may heat a frozen meal. Sometimes, she will have cheese and crackers, especially when she starts drinking alcohol. When her husband is home, he may barbecue meat, and she will prepare vegetables.
During the day, she may watch the morning show on television. She has no hobbies or projects. She bought a jigsaw puzzle six months ago, hoping to find it interesting, but has been unable to finish it.
Ms Sexton has never had a very active social life. Her husband prefers to stay home when he is not working. Before becoming unwell, she went to the gym twice a week and attended a weekly yoga class and a running club on Sunday, usually accompanied by a girlfriend. Occasionally, friends would visit her house. In 2016, she and her husband went on a cruise in New Guinea.
Until recently, she attended a Pilates class run by her physiotherapist, part of her therapy program. She went alone but would talk to a couple of the other women in the class but not socialise with them outside of the class. She has felt unable to attend in the last two or three months.
She has two girlfriends, one in Ballina and one in Brisbane. Her friend in Ballina occasionally visits, but she has not reciprocated recently. Her friend last visited 2 ½ months ago, staying 30 minutes. She doesn’t go out to cafés or restaurants.
Ms Sexton’s mother and stepfather live locally. Her mother has dementia, and Ms Sexton occasionally visits her, the last occasion was Mother’s Day.
Ms Sexton has not gone on holiday since 2016.
Diagnosis
Ms Sexton’s symptoms are consistent with a severe and chronic major depressive disorder with anxious distress (DSM-5 criteria). This is consistent with the diagnosis offered by the MA.
3. Findings on clinical examination
I interviewed Ms Sexton in her home by video link. The connection quality was adequate to do a comprehensive assessment over 65 minutes.
She presented casually attired and wearing a T-shirt. She wore her hair long and had glasses.
She was anxious and distressed, evident throughout the interview. She was often teary and needed pauses to regain her composure. Her affect was restricted, consistent with a depressed mood and congruent with the interview content.
She was cooperative and open during the interview.
There was no evidence of disorder of thought form or perception.
She gave a coherent account with no obvious lapses in concentration or challenges with her memory, but she occasionally needed redirection.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.
Signed: Dr Douglas Andrews
Date: 31 May 2024”
The Appeal Panel considers that the examination undertaken by Medical Assessor Douglas Andrews was conducted in a thorough manner, The Appeal Panel adopts the history Medical Assessor Douglas Andrews has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS categories that have been challenged on appeal, namely self-care and personal hygiene and social and recreational activities as well as the history given about the secondary psychological condition. The Appeal Panel also adopts Medical Assessor Douglas Andrews's findings on the clinical examination of the appellant. The Appeal Panel also adopts Medical Assessor Douglas Andrews’ diagnosis, made after clinical examination of the appellant, of a severe and chronic major depressive disorder with anxious distress (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria). The Appeal Panel notes this is consistent with the diagnosis made by the Medical Assessor.
The appellant challenged the Medical Assessor’s ratings in self-care and personal hygiene, social and recreational activities, and the s 323 deduction for a pre-existing condition.
In respect of self-care and personal hygiene, the appeal panel notes that the appellant is independent in activities of daily living with her husband away for nine days a fortnight. She adequately manages personal care, including showering daily and wearing clean clothes. She is less attentive to her appearance. She attends to housework, including cleaning and simple meal preparation. She often misses meals and eats a poor-quality diet. She has gained weight and is now in the severely obese range. She is drinking alcohol excessively, which is likely to adversely affect her physical and mental health. She has increased her smoking of cigarettes. The Appeal Panel considers that a class 2 or mild impairment is the best fit for self care and personal hygiene.
In respect of social and recreational activities, the Appeal Panel notes that the appellant has few social and recreational activities. She occasionally accepts visits from a girlfriend but rarely reciprocates. She does not go to restaurants, cafés or clubs, although this is a long-standing practice. She has not been on a holiday since becoming unwell. In the Appeal Panel’s view, the appellant’s Pilates should be properly considered a therapy class, and she does not take advantage of any associated social opportunities. In any case, the Appeal Panel notes that the appellant has not attended Pilates in the last few months. The Appeal Panel considers that the best fit is a class 3 or moderate impairment for social and recreational activities.
In respect of considerations relevant to s 323, the Appeal Panel notes the appellant had no mental health problems before commencing with Helicopter Rescue. She had a period of depression in 2015, which was during the time of her employment. She attributes this to grief due to the death of her pet dog, but contemporaneous medical notes also confirm that work played a part. The Appeal Panel considers that there is no convincing evidence that she developed depression or anxiety secondary to her back injury in 2017 and 2018.In any event, the Appeal Panel notes that the appellant’s back pain is now under reasonably good control, and she is coping well with the consequences of that injury. A deduction under s 323 can only be made if a pre-existing condition, injury or abnormality has contributed to the overall level of permanent impairment assessed. Here there is no evidence to support that the impairment from the secondary injury has contributed to the overall level of permanent impairment assessed as a result of the psychological injury deemed to have occurred on 11 September 2018.
The Appeal Panel’s assessment of the PIRS categories under Table 11.8 is as follows:
Table 11.8: PIRS Rating Form
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
Ms Sexton is independent in activities of daily living with her husband away for nine days a fortnight. She adequately manages personal care, including showering daily and wearing clean clothes. She is less attentive to her appearance. She attends to housework, including cleaning and simple meal preparation. She often misses meals and eats a poor-quality diet. She has gained weight and is now in the severely obese range. She is drinking alcohol excessively, which is likely to adversely affect her physical and mental health. She has increased her smoking of cigarettes.
Social and recreational activities
3
Ms Sexton has few social and recreational activities. She occasionally accepts visits from a girlfriend but rarely reciprocates. She doesn’t go to restaurants, cafés or clubs, although this is a long-standing practice. She hasn’t been on a holiday since becoming unwell. Her Pilates should be properly considered a therapy class, and she does not take advantage of any associated social opportunities. In any case, she has not attended Pilates in the last few months.
Travel
2
Ms Sexton reported that she is able to go to nearby shops and goes to farmer markets to get fresh produce.
She prefers to go with her husband to get groceries.
She attended a wedding in Brisbane about two years back and stayed there for three nights. – as per Medical Assessor
Social functioning
2
She said that her husband has been “quite supportive” through all of this. She said that her mom and her stepfather live near her and her mom has been diagnosed with dementia, and hence, she cannot depend on her mom. However, she also finds her friend very supportive and understanding and is able to rely on them. – as per Medical Assessor
Concentration, persistence and pace
3
Ms Sexton reported that even though her memory is “okay,” she is not able to read books and has to reread the same pages as she gets distracted very soon. She said that she switches on the TV but is unable to focus on TV for long and gets distracted within a couple of few minutes. She also reported that it is a struggle for her to multitask as she does not have sufficient concentration to focus and complete the tasks. – as per Medical Assessor
Employability
5
Ms Sexton does not have any realistic capacity to engage in any form of employment, given the significant symptoms she has and the impairment in her concentration, persistence, and pace. – as per Medical Assessor
Score
Median Class
2
2
2
3
3
5
= 3
Aggregate Score Impairment 17
Total
19 %
The Appeal Panel concluded that the respondent worker has a median score of 3 under the PIRS, and an aggregate of 17, with a total whole person impairment of 19, with no deduction under s 323. Accordingly, the Appeal Panel will revoke the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 February 2024 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: | W4761/23 |
Applicant: | Melissa Jane Sexton |
Respondent: | Northern NSW Helicopter Rescue Service Limited tas Westpac Rescue Helicopter |
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, | 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. Psychological | 11/09/18 | 11, page 55-60 | 14 | 19% | NIL | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0