Stock & Station Aviation Pty Ltd v Fowler

DETERMINATION OF APPEAL PANEL
CITATION:	Stock & Station Aviation Pty Ltd v Fowler [2024] NSWPICMP 594
APPELLANT:	Stock & Station Aviation Pty Ltd
RESPONDENT:	Nikki Anne Fowler
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	22 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) considered all relevant evidence; whether MA’s rating of appellant’s impairment in social and recreational activities and in social functioning are supported by evidence; whether MA’s ratings of appellant’s impairment in social and recreational activities and in social functioning correct; Held – MA had considered all the evidence; MA’s rating in social and recreational activities supported by the evidence and is correct; MA’s reasoning for appellant’s impairment in social functioning and the evidence was inconsistent with the rating he scored and was an error; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 May 2024 Stock & Station Aviation Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 April 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 for 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 (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

From the evidence before the Appeal Panel it can be inferred that Nikki Anne Fowler, the respondent, and her late husband, established the appellant to conduct an agricultural aviation business providing services in the area of Broken Hill. The respondent was employed by the appellant to perform the services of an administration officer. Her late husband worked as a helicopter pilot.
On 26 May 2021 the respondent while in the course of her work for the appellant was informed that her husband had been severely injured in a helicopter accident. Shortly after, she learned that he had died in the accident.
She suffered a psychological injury as a consequence of those events.
The respondent claimed compensation from the appellant’s insurer pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her psychological injury. She relied on a report of psychiatrist Dr Abhishek Nagesh dated
21 March 2023 who had assessed she had a permanent impairment from her injury of the order of 19% whole person impairment (WPI). That assessment was done by reference to the Psychiatric Impairment Rating Scale (PIRS), as detailed in the Guidelines.
The appellant’s insurer in a notice it issued to the respondent under s 78 of the 1998 Act on 17 November 2023 advised the respondent it denied the appellant was liable to pay her compensation for permanent impairment. It relied on a report of psychiatrist Dr Warwick Blackmore dated 27 September 2023, in which he advised he had examined the respondent on 18 September 2023 and had assessed the degree of her permanent impairment from her injury was only 9% WPI. That was below the threshold of at least 15% permanent impairment that s 65A(3) of the 1987 Act stipulates a worker’s permanent impairment must be to be entitled to compensation for permanent impairment under s 66 of the 1987 Act.
Consequently a medical dispute arose between the parties regarding the degree of the respondent’s permanent impairment from her injury. On 16 January 2024 the respondent’s solicitors lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute seeking the Commission determine her claim for compensation for permanent impairment. A delegate of the President of the Commission on 13 February 2024 referred the matter to the Medical Assessor to assess the medical dispute between the parties relating to the respondent’s permanent impairment from her injury.
The Medical Assessor examined the respondent on 9 April 2024. In the MAC he issued on 26 April 2024 he certified he assessed the degree of her permanent impairment from her injury is 22% WPI. The Medical Assessor advised in the MAC that his assessment was based on the documents he was provided with the referral, his mental state examination of the respondent, the respondent’s report to him of having failed to return to work in any role, and the respondent’s report to him that she was not planning to undertake any new treatments.
The Appeal Panel notes that the Medical Assessor extracted within the MAC various parts of the evidence within the documents that had been forwarded to him with the referral. It is apparent from that, that he obviously considered these parts were relevant for the purpose of his assessing the respondent’s permanent impairment from her injury.
The Medical Assessor’s assessment of the respondent’s permanent impairment from her injury was done by reference to PIRS. The appellant in its appeal against the MAC has challenged the Medical Assessor’s rating of the respondent’s impairment in the PIRS categories of social and recreational activities and social functioning, in both of which the Medical Assessor rated the respondent’s impairment as Class 3, that is moderate.
Within the PIRS rating form within the MAC the Medical Assessor provided the following reasons for his rating of the respondent’s impairment in social and recreational activities:
“The applicant reported that she would not socialise with her past friendship circle in Ballina. She reported that she would not respond to invitations to attend social events. She would avoid any conversation about her injury. She preferred her isolation. The family had not celebrated any Christmas or birthday events since the death of the father of her children. The applicant reported that her husband died the day after his birthday and a few days prior to her daughter’s birthday.
She was not interested in participating or contributing to her eldest daughter’s sports club. The applicant is no longer a member, and avoids, the social flight club where she and her husband would attend fly-ins around Australia.”
The Medical Assessor provided the following reasons for rating the respondent’s impairment in social functioning as Class 3:
“The applicant had lost all her relationships including her past friendship circles in both Broken Hill and Ballina. The applicant reported she would become tearful, depressed, and irritable listening to other women talk about vacation plans, recent fashion purchases or cars. The applicant said her relationship with her daughters was strained.
The applicant’s relationship with her extended family and mother was strained. The applicant reported that she felt her parents had placed her under increasing social pressure to “move on” from her “old life”. The applicant reported that she has no interest in attempting to form any new relationship, either casual or intimate.”
Within the body of the MAC the Medical Assessor also recorded within the history he detailed that the respondent had become increasingly socially isolated and had relocated from Broken Hill to Ballina because she was unable to tolerate her friendship circle and because medical services were encouraging her to move on. The Medical Assessor recorded that when in Ballina the respondent initially hoped to reintegrate into an old friendship circle but failed and as at the time of the assessment remained was isolated and alone. The Medical Assessor recorded that the respondent’s mother had spoken with her about the need to move on and this had caused tension in the relationship with the respondent having stopped talking to her parents.
The Medical Assessor noted that Dr Blackmore had rated the respondent’s impairment in social and recreational activities and in “social relationship” as Class 2. With respect to that the Medical Assessor commented that the respondent had no interest in forming a new intimate relationship and that her parents were not supportive and do not maintain regular contact. Further, the Medical Assessor noted that the respondent transports her children to sport but does not participate in her children’s sporting activities and that she does not engage in any fundraising, canteen, referee or other activities to support her eldest daughter’s sport. The Medical Assessor further noted that the respondent had not celebrated Christmas or her children’s birthdays since the death of her late husband. The Medical Assessor noted that the respondent reported she has no friends in Ballina and has no contact from her prior friendship circle in either Broken Hill or Ballina.

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 came to the view that the respondent had not established any of the grounds for appeal on which she relied, and consequently there was no reason for the Appeal Panel to examine the respondent.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; 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 are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions, so as to provide a summary of them, they are that the Medical Assessor did not have regard to all relevant evidence before him. The appellant submitted that, in accordance with Wentworth Community Housing Limited v Brennan[2] and various other decisions of other Appeal Panel, the Medical Assessor was not required to refer to every piece of evidence before him, but was required to consider and refer to evidence that was inconsistent with his conclusions and explain why he reached his conclusion.
[2] [2019] NSWSC 152
The appellant detailed the various entries in the medical records relating to the respondent that were in evidence that it considered were at odds with the assessment the Medical Assessor had made of the respondent’s impairment in social and recreational activities and social functioning.
The appellant submitted that there was no evidence that the Medical Assessor reviewed the clinical records of Thrive Medical Centre beyond 13 September 2022 or that he reviewed the clinical records of psychologist Trudi Fehrenbach beyond 16 October 2023 or that he reviewed any of the medical records of First Light Healthcare Ballina or Dr Ong who practiced as a general practitioner there, or that he reviewed a certificate of capacity that
Dr Ong issued on 8 September 2023.
The appellant further submitted that there was no evidence that any of the respondent’s relationships are severely strained. The appellant highlighted that the respondent is a sole carer of her children and does not require support.
Paraphrasing the respondent’s submissions, also to provide a summary of them, they are the Medical Assessor was not expected to identify all of the material that he considered but it is evident, because the Medical Assessor quoted parts of some of the material before him, that he considered and digested all of the material that was before him. The respondent further submitted that the Medical Assessor identified the material that he considered relevant to his assessment.
The respondent submitted that it could not be inferred that the fact that the Medical Assessor identified specific parts of the medical records before him that he ignored the other parts of the clinical records.
The respondent noted that the Medical Assessor’s assessment of her took place on
9 April 2024. The respondent highlighted that the appellant in its submissions identified entries from the clinical records in June 2023 that she was then trying to get some social interaction and was volunteering for her daughter’s basketball team. The respondent submitted that a reference in clinical records to volunteering without the note identifying the nature and extent of that, is not sufficient to demonstrate the Medical Assessor made an error regarding his rating of her impairment in social and recreational activities.
The respondent also submitted that a clinical note referring to her spending Christmas with in-laws does not imply that Christmas or birthdays has in fact been celebrated.
The respondent submitted that the appellant had seized upon selective elements in the clinical records to an advance an alternative basis for assessing the degree of her permanent impairment. The respondent submitted that what is required is for the Medical Assessor to conduct a clinical assessment having regard to all the evidence and then to express an opinion relating her scores in the various PIRS categories.

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.
The Appeal Panel does not agree with the appellant’s submission to the effect that the Medical Assessor did not have regard to all the clinical records in the process of assessing the degree of the respondent’s permanent impairment from her injury. The Medical Assessor has expressly stated in the MAC that a matter upon which he based his assessment was the documents that had been referred to him with the referral. That, coupled with the fact that the Medical Assessor extracted various entries from those medical records in the MAC, indicates that the Medical Assessor had regard to all of the clinical records.
The Appeal Panel does not accept the appellant’s submission that there is no evidence that the Medical Assessor did not have regard to the records of the Thrive Medical Centre in Broken Hill beyond the date of 13 September 2022, or the medical records of
Ms Fehrenbach beyond the date of 16 October 2023 or the medical records of the First Light Medical Centre in Ballina beyond the date of 8 September 2023. There is evidence that he did so and that is that he said in the MAC that he based his assessment on the material before him.
The Appeal Panel agrees with the respondent’s submission to the effect that it cannot be inferred from the fact that the Medical Assessor only extracted in the MAC or referred in the MAC to some of the entries in the medical records, he did not have regard to the other entries.
The specific entries in the medical records to which the appellant referred in its submissions that it contends are inconsistent with or contradict the findings of the Medical Assessor and the reasons he provided for his ratings of the respondent’s impairment in social and recreational activities and social functioning are as follows, in chronological order.
Firstly, there is a record made by Miss Alex Forner, practicing out of the Thrive Medical Centre, on 1 November 2022 that the respondent was “visiting friends to say goodbye” and that the respondent spent “Christmas with the in-laws”.
Next is an entry made by Dr Ong, a general practitioner practicing out of the First Light Medical Centre, on 9 January 2023, that the respondent is “reconnecting with old friends here”, and “settling in”.
Then there is an entry that Dr Ong recorded on 8 June 2023 that “husband’s birthday – family went fishing which husband like, stay at home during anniversary”. Further, Dr Ong recorded “trying to get some social interaction – voluntary role as basketball club team manager”. Dr Ong also issued on 8 June 2023 a certificate of capacity in which he recorded that the respondent was “doing volunteer work at child school”.
The Appeal Panel also observes that Dr Ong made several entries regarding the respondent’s consultation with him on 8 June 2023, to which the appellant did not refer. One of those is “just had husband’s anniversary and birthday past weeks and children’s birthday, rough two weeks, emotional period for whole family”.
The next item in the clinical records to which the appellant referred was a note made by
Dr Ong on 8 September 2023 in which he recorded that the respondent was “still volunteering at school basketball team”.
As the respondent submitted the Medical Assessor was required to base his assessment on the respondent’s impairment at the time he assessed the respondent. He examined the respondent on 9 April 2024. That is the relevant date at which he had to rate the respondent’s impairment in the several PIRS categories. As said, the Appeal Panel considers that the Medical Assessor had regard to all the material before him, and specifically had regard to what was recorded in the medical records before him. It can therefore be inferred that as at 9 April 2024 he was cognisant of what was recorded in the medical records and consequently was aware that the respondent had, prior to leaving Broken Hill visited old friends, and had tried to reconnect with old friends in Ballina when she moved there, and had attempted to volunteer with the sporting team with which one of her children was involved and had spent a Christmas with her in-laws.
The Appeal Panel considers that none of what is contained in the specific records to which the appellant referred demonstrates that the Medical Assessor made an error with respect to his rating of the respondent’s impairment in social and recreational activities. The Medical Assessor, as he was entitled to do, has given pre-eminence to his clinical observations of the respondent, informed by the relevant clinical data he obtained from the respondent at examination on 9 April 2024.
As the respondent submitted, the fact that she in the past contributed to her daughter’s sports team does not mean that at the time the Medical Assessor assessed her impairment, she was then interested in participating or contributing to her daughter’s sports team.
The fact that the respondent visited old friends before leaving Broken Hill and sought to reconnect with old friends when she moved to Ballina does not indicate that the Medical Assessor erred by relying on the clinical data he obtained from the respondent to the effect that she was not at the time of the assessment socialising with her past friendship circle in Ballina.
The Appeal Panel also considers the fact that the respondent in the year after her husband’s death spent Christmas with her in-law does not mean the Medical Assessor was wrong to accept the respondent’s report that she had not celebrated any Christmas or birthday events since the death of her husband. Spending time with someone at an event is different to celebrating the event.

The Appeal Panel considers that the Medical Assessor’s rating of the respondent’s impairment in social and recreational activities as Class 3 is correct for the reasons he provided. What he set out in his reasons within the PIRS rating form best correlates with an impairment described by the examples in Table 11.2 for a Class 3 impairment. The respondent is not now socialising with her past friendship circle in Ballina and does not respond to invitations to attend social events. The respondent prefers isolation. She is not celebrating birthdays and Christmas. She no longer participates in the social flight club. Based on the history the Medical Assessor obtained she is now not participating in her daughter’s sports team (but it can be inferred the Medical Assessor was aware that she did so in the past).
The Appeal Panel considers however that the Medical Assessor’s rating of the respondent’s impairment in social functioning as Class 3 does contain an error. This is because the Medical Assessor’s rating does not accord with the history he obtained or the evidence otherwise, which indicates an impairment less severe than Class 3. The key matters are that the respondent moved to Ballina to be closer to her family. She said in her statement that she sees her parents a few times a week, and hence she maintains a relationship with them, although as the Medical Assessor noted her relationship with her extended family and mother is now strained. The Medical Assessor recorded there was a strain in the respondent’s relationship with her children, but the respondent nevertheless, as she said in her statement, does not have a day when her children are not with her, and thus she is able maintain a relationship with her children. The Medical Assessor noted that the respondent has no interest in attempting to form a new relationship, but that in the Appeal Panel’s view is age and culturally appropriate given her circumstances of being a recently widowed mother. The Medical Assessor recorded that the respondent has lost her friendship circles in both Broken Hill and Ballina, but when all is considered the Appeal Panel considers the severity of the respondent’s impairment in social functioning correlates with that described by the examples for a Class 2 rating, and this is because there is some strain in her family relationships but no separations or violence. She has regular contact with her extended family and she is caring for her children. The Medical Assessor erred therefore by not rating her impairment as Class 2 such that the MAC contains a demonstrable error.
Upon the Appeal Panel correcting that error the aggregate of the respondent’s PIRS scores reduces to 17, but the median of her scores remains 3. In accordance with Table 11.7 of the Guidelines that converts to 19% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 April 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:	W287/24
Applicant:	Nikki Anne Fowler
Respondent:	Stock & Station Aviation Pty Ltd

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 John Baker 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 WorkCover Guides

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)

Psychiatric/Psychological disorder

26/05/2021

Chapter 11

19%

Total % WPI (the Combined Table values of all sub-totals)

19%

Marshal Douglas
Member
Douglas Andrews

Medical Assessor

Graham Blom

Medical Assessor

21 August 2024

[2024] NSWPICMP 594

22 August 2024