State of New South Wales (Northern NSW Local Health District) v Van Der Poel
[2025] NSWPICMP 430
•18 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Northern NSW Local Health District) v Van Der Poel [2025] NSWPICMP 430 |
| APPELLANT: | State of New South Wales (Northern NSW Local Health District) |
| RESPONDENT: | Van Der Poel |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Dr John Baker |
| MEDICAL ASSESSOR: | Dr Ash Takyar |
| DATE OF DECISION: | 18 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; Psychiatric Impairment Rating Scale tables for social and recreational activities; concentration, persistence and pace and employability; Held – MAC revoked; new certificate issued. |
WORKERS COMPENSATION DIVISION
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
Matter number: | M1-W30178/24 |
Appellant: | State of New South Wales (Northern NSW Local Health District) |
Respondent: | Lee-Ann Van Der Poel |
Date of decision: | 18 June 2025 |
Appeal Panel: | |
Member: | Catherine McDonald |
Medical Assessor: | John Baker |
Medical Assessor: | Ash Takyar |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 April 2025 State of New South Wales (Northern NSW Local Health District) (the Health District) lodged an Application to Appeal Against the Decision of a Medical Assessor in respect of a claim by Lee-Ann Van Der Poel. The medical dispute was assessed by Medical Assessor Himanshu Singh, who issued a Medical Assessment Certificate (MAC) on 5 March 2025.
The Health District relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error in the assessment under the Psychiatric Impairment Rating Scale (PIRS) table for social and recreational activities . We conducted a review of the original medical assessment, 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).
RELEVANT FACTUAL BACKGROUND
Ms Van Der Poel was employed by the Health District as a VMO Claims Management Officer located at Tweed Hospital. In the course of that role, she identified “noncompliance and fraudulent behaviour” which she reported, resulting in interpersonal conflict with some of her superiors and some visiting medical officers. She ceased work on 1 December 2021, which is the deemed date of injury, though she performed some work for the Health District after that time. Ms Van Der Poel’s employment was terminated on medical grounds by a letter dated 4 December 2024 on the basis that she was unable to perform the inherent requirements of her substantive role.
Dr Smith examined Ms Van Der Poel at the request of her solicitors and reported on 17 May 2024. He assessed 15% whole person impairment (WPI) using the Psychiatric Impairment Rating Scale (PIRS) in the Guidelines. Dr Jones examined her on behalf of the Health District and reported on 30 October 2024, assessing 9% WPI.
The Medical Assessor assessed 15% WPI. He assessed Ms Van Der Poel in class 1 for travel, class 2 for self-care and personal hygiene and social functioning, class 3 for social and recreational activities and concentration, persistence and pace and class 4 for employability.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Van Der Poel to undergo a further medical examination because there is sufficient material in the file to determine the appeal. No additional material is relied on by either party and the appeal turns on the assessment that the Medical Assessor should have made based on the history he obtained.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, the Health District submitted that the Medical Assessor made his assessment on the basis of incorrect criteria or made a demonstrable error in his assessments under the PIRS for social and recreational activities, concentration, persistence and pace and employability.
With respect to social and recreational activities, the Health District highlighted inconsistencies in the history relied on by the Medical Assessor. It said that there was no reference to the need for a support person and that Ms Van Der Poel’s activities were inconsistent with assessment in class 3.
Turning to concentration, persistence and pace, the Health District said that the Medical Assessor did not set out objective observations made during the assessment, relying on Ms Van Der Poel’s self-reporting.
With respect to employability, the Health District said that, despite assessing Ms Van Der Poel in class 4 for employability, he gave reasons consistent with the “criteria” for class 3.
The Health District sought that Ms Van Der Poel be re-examined.
In reply, Ms Van Der Poel submitted that the ratings applied by the Medical Assessor were open to him on the evidence provided and on the basis of his examination. She said that none of the activities relied on by the Medical Assessor were inconsistent with assessment in class 3 for social and recreational activities.
With respect to concentration, persistence and pace, Ms Van Der Poel said that there was nothing on the face of the MAC that suggested that the Medical Assessor had not used his own clinical observations when making his assessment.
Ms Van Der Poel disagreed that the Medical Assessor erred with respect to his assessment of her employability and said that class 4 was the “best fit” for his assessment.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor set out a detailed history of the events leading to the injury and the onset of symptoms and the treatment Ms Van Der Poel has undergone.
When describing her daily activities, he said
“Ms Van Der Poel stated that she goes out for walks, may walk 8 to 10 km in a day and may take her dog out for a walk as well. She will go out in the morning for cafe. If she goes by herself then she will get a takeaway and come home. She makes sure when she goes out that she does not run into medical staff from the hospital. She has the hairdresser for the last many years and she stated that her hairdresser makes sure that her appointments do not coincide with any other hospital staff as it would trigger her. She also has developed an irritable bowel and she is worried that she has to use the toilet when she goes out or she gets anxious. She also tends to throw up when she is anxious. She is working with the rehab provider and currently working with the third one. She stated that she is trying to work with rehab to get some control over her life and to get some form of work. However, it is not working at this stage. She may consider working on her own or working from home but because she does not trust people. She likes to get outside to walk with the dog and is trying to go out for bush walking. She feels that she is stuck. She is not moving forward in her life. She has lost her drive and cannot plan her future.
…
Ms Van Der Poel stated that she struggles to go out. There is no structure in her day and she would scroll over her phone while she is at home. She previously organized a book club, but she no longer engages in that and is not a member of any club. She avoids places in which she fears that she might see people from the hospital. She showers daily but she used to shower twice a day. She does not care for her hair and does not put her makeup on. She would neglect the cleaning of the house and is not as good and clean as it used to be.”
The Medical Assessor set out his findings as a result of his mental state examination:
“Ms Van Der Poel was seen over a video conference on 19 February 2025 over a Teams meeting. She was joined by her partner Mark who was present with her as a support person throughout the assessment. Ms Van Der Poel appeared clean. She was calm and cooperative during the assessment. She maintained good eye to eye contact and a rapport was established. She was casually dressed and her hygiene was maintained. She had a spontaneous speech with normal rate, tone and volume. She described her mood as anxious and sad and I found her to be in distress. She described her sleep and appetite as disturbed. She described low levels of energy and motivation. She described low levels of self-confidence and self-esteem. She described feelings of embarrassment and loss of her identity.
She does not trust people and struggles to be in social situations. There were no signs of agitation or retardation. She denied having any active or passive suicidal thoughts, intents or plans and there were no thoughts of harming others. She did not describe any grandiosity, erasing thoughts or increased energy levels. There was no evidence of form of thought disorder, no delusional pattern of thinking and no perceptual abnormalities. She described her attention and concentration as poor. She had a reasonable insight and her judgment was intact. She reported feelings of being stuck and not able to move forward. She reported feeling that she has lost her drive and cannot plan her future.”
The Medical Assessor said that Ms Van Der Poel met the criteria for diagnosis of persistent depressive disorder/dysthymia.
After summarising the other medical opinions in the file, the Medical Assessor said:
“In my opinion, Ms Van Der Poel has sustained a work-related psychological injury and presents with symptoms of persistent depressive disorder. Ms Van Der Poel has reached maximum medical improvement. She has received treatment and has not been able to achieve remission of her symptoms. In my opinion, Ms Van Der Poel continues to present with symptoms, and her condition has become permanent. Her condition is unlikely to change substantially by more than 3% in the next 12 months with or without treatment. I made an assessment of her whole-person impairment. In my opinion, there is no preexisting condition, hence, there is no adjustment required for pre-existing impairment. In my opinion there has been no significant effect from the treatment. Hence, I have not made any adjustments for the effects of treatment. The final whole-person impairment is 15 %.”
We observe that the Health Districts submissions are very detailed and take issue with the language used by the Medical Assessor. An example is the detailed submission as to whether or not Ms Van Der Poel could be said to have “celebrated” her 60th birthday. The Medical Assessor is an administrative decision maker and the correct approach to review of his decision is described in the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[3] where the High Court approved the statement of principle in a decision of the full Federal Court:
“… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
[3] [1996] HCA 6, 185 CLR 259, 272.
As Basten AJ highlighted in Cheers v Mid Coast Council,[4] the task of the Medical Assessor (and the Appeal Panel) is a psychiatric assessment, rather than a legal analysis.[5]
Social and recreational activities
[4] [2024] NSWSC 1553.
[5] [2024] NSWSC 1553 at [57].
The Medical Assessor assessed Ms Van Der Poel in class 3 because:
“Ms Van Der Poel stated that she struggles to leave home. She avoids social situations and outings unless she knows who will come. She is not going to the gym. She may go out for a coffee in the morning but she is by herself. She will take a takeaway. She walks and likes to walk a lot. She will walk the dog during the day. She will occasionally go for dinner and occasionally go out with friends. She is not going to any art class and not doing art. She is not doing book club where she used to organize book clubs. She only walks the dog and is not looking after the garden which is again in her list. She did not celebrate her 60th birthday. However, her friends from last many years came over and stayed with her in a motel and they had drinks and dinner.”
The examples in the Guidelines for assessment in class 3 are:
“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.”
While it is clear that recreational activities can be undertaken alone, the table measures the extent of a worker’s participation in activities and interaction with others.[6]
[6] Ballas v State of New South Wales [2020]NSWCA 86 at [100].
The Health District highlighted the fact that the Medical Assessor made no reference to a support person and said that the statement that Ms Van Der Poel “struggles to leave home” was inconsistent with leaving the house twice a day to buy takeaway coffee and to walk her dog.
There is no definition of “support person” in the PIRS. The reference to “a” support person does not connote the same support person on every occasion. The Medical Assessor’s history shows that Ms Van Der Poel does occasionally go out with others but avoids social situations unless she knows who is going, the implication being that she will only go out in a group if she feels comfortable and supported. As Ms Van Der Poel’s submissions pointed out, assessment in class 3 does not preclude social outings with close friends but accepts that the outings are rare and prompted by others. Whether or not Ms Van Der Poel celebrated her 60th birthday, the events described by the Medical Assessor fall within that description. It demonstrates a significant curtailment of her social activities compared to the histories of her previous activity.
The examples in Table 11.2 focus solely on the social aspect of social and recreational. The Medical Assessor’s history shows that Ms Van Der Poel is no longer undertaking regular recreational activities with a social component such as art classes and book group and she is not doing art, reading or gardening for recreation. Ms Van Der Poel’s main recreation is obtaining takeaway coffee alone and walking her dog. While the latter is recreational, it reveals a significant change in Ms Van Der Poel’s activities, as a result of the injury.
The Medical Assessor’s references to “occasionally” going out for dinner shows that he engaged with the examples in Table 11.2 and assessment in class 3 is not a demonstrable error.
Concentration, persistence and pace
The Medical Assessor assessed Ms Van Der Poel in class 3 because:
“Ms Van Der Poel stated that she used to be an avid reader but she has not read a book in last 3 years and not able to listen to audiobooks as well. She described a poor level of focus and concentration. She used to organize book clubs and used to organize social drinks and catch-ups which she has stopped. She may have a coffee catch-up with a friend or she may go with one friend. She has been terrible in her memory and she needs to make a list of to-do things.”
The thrust of the Health District’s submissions is that the Medical Assessor did not make objective observations relevant to the assessment under Table 11.5 and that he relied on her self-reporting. The Health District said that a reference to Ms Van Der Poel having reasonable insight and judgement and that she spoke at a normal rate gave rise to a “reasonable inference … in the absence of explicit discussion” that she had some reasonable level of concentration, persistence and pace.
Table 11.5 assesses a worker’s ability to maintain concentration and to persist with cognitively demanding tasks. It also measures the pace of their cognitive processes. The assessment under this table is different to the other tables of the PIRS because the consultation allows the Medical Assessor to form his or her own opinion as to the worker’s ability to concentrate and respond during the examination and his findings on the mental state examination are relevant. The consultation is itself a cognitively demanding task.
The Medical Assessor recorded the facts and observations relevant to the assessment is the Mental State Examination. That section of the report sets out his observations as well as what he was told – for example Ms Van Der Poel described her mood as anxious and sad and the Medical Assessor said “I found her to be in distress.” In the context of the history Ms Van Der Poel gave, the Medical Assessor formed the opinion that she had reasonable insight and her judgement was intact, thus acknowledging that her self-reporting of her symptoms could be accepted. The capacity for insight and judgement is different to concentration, persistence and pace and are not measured by Table 11.5.
The examples for class 2 are:
“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.”
The examples for class 3 are:
“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 history the Medical Assessor obtained of Ms Van Der Poel’s inability to read or listen to audiobooks where she had previously been an avid reader is consistent with assessment in class 3.
Employability
The Medical Assessor assessed Ms Van Der Poel in class 4 and said:
“Ms Van Der Poel was working for 3 days in a week. She was still working for the hospital in suitable duties and working at a different office in Tweed Shire Council. She has not worked since July 2024. In March 2022 as well, she had lots of time off due to the exacerbation of her anxiety and would have lot of breakdown episodes. She continues to struggle with the symptoms of a mental illness. Ms Van Der Poel cannot work at all in the same position, probably can perform less than 20 hours per week in a different position.”
As the Health District pointed out, the words used by the Medical Assessor are the examples for class 3 and not class 4.
The examples for classes 3 and 4 are:
“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).”
And
“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.”
Ms Van Der Poel’s employment was terminated because she could not return to her substantive role. She made efforts to continue working in a reduced capacity after the injury. The Medical Assessor recorded that she is still working with a rehabilitation provider and that she is trying to find some form of work. The most recent certificates certify that she has some capacity for suitable employment. She was working at the time of the examinations by Dr Smith in May 2024 and Dr Jones in October 2024. Each of them assessed her in class 3.
In light of her history in the file and the history recorded by the Medical Assessor, assessment in class 4 is an error and Ms Van Der Poel should be assessed in class 3 for employability.
Conclusion
The assessments are therefore class 1 for travel, class 2 for self-care and personal hygiene and social functioning and class 3 for social and recreational activities, concentration, persistence and pace and employability.
When those scores are arranged as required by paragraph 11.14 of the Guidelines, they are 1, 2, 2, 3, 3 and 3. The median score is 2.5, rounded to 3 and the aggregate is 14. Under Table 11.7, that converts to 13% WPI.
For these reasons, we have determined that the MAC issued on 5 March 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W30178/24 |
Applicant: | Lee-Ann Van Der Poel |
Respondent: | State of New South Wales (Northern NSW Local Health District) |
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 Himanshu Singh 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) |
| Psychological injury | 1.12.21 | Chapter 11 | N/A | 13 | Nil | 13% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0
3
0