The Frank Whiddon Masonic Homes of NSW v Garner
[2024] NSWPICMP 248
•29 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | The Frank Whiddon Masonic Homes of NSW v Garner [2024] NSWPICMP 248 |
| APPELLANT: | The Frank Whiddon Masonic Homes of NSW |
| RESPONDENT: | Janet Catherine Garner |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 29 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment for a psychological injury; psychiatric impairment rating scale (PIRS) of employability; ascribing activities to correct PIRS table; Ballas v Department of Education and Tasevski v Westpac Banking Corporation referred to; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 February 2024 The Frank Whiddon Masonic Homes of NSW (Frank Whiddon) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Wayne Mason who issued a Medical Assessment Certificate (MAC) on 2 February 2024 and amended it on 22 February 2024.
Frank Whiddon 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.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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 Garner was employed by Frank Whiddon as an administrative assistant on a part time basis. She suffered a psychological injury which is deemed to have occurred on 20 August 2021.
The Medical Assessor diagnosed persistent depressive disorder with anxious distress. He assessed Ms Garner under the Psychiatric Impairment Rating Scale (PIRS) in class 2 for self care and personal hygiene, class 3 for social and recreational activities, class 1 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 5 for employability. Those ratings convert to 17% whole person impairment (WPI). The Medical Assessor deducted one-tenth under s 323 of the 1998 in respect of pre-existing impairment, resulting in an assessment of 15% WPI.
The appeal only concerns the Medical Assessor’s assessment in the PIRS category of 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 Garner to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
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, Frank Whiddon submitted that the history taken by the Medical Assessor and the information in the file did not support assessment in class 5, which connotes total impairment. Frank Whiddon noted that the Medical Assessor recorded that Ms Garner:
“…had been a volunteer at the Op Shop prior to the work injury. In recent months she has resumed some activity there but said she works out the back with the clothes so she does not have to have contact with people.”
The Medical Assessor also said:
“Employability: Ms Garner is unable to return to work because of fear, and depression social anxiety. She was questioned about doing part-time sewing work and said the most she can manage is 3 hours/week. She said social anxiety prevented her from continuing to attend markets. She is totally impaired.”
Frank Whiddon said that the Medical Assessor made a demonstrable error because he failed to explain his conclusion. He appeared to have engaged with the evidence in the file about her sewing activities and questioned Ms Garner about them. Frank Whiddon said that assessment in class 5 was the application of incorrect criteria because the history reflected that Ms Garner had an ability to work.
Frank Whiddon did not seek that Ms Garner be re-examined.
In reply, Ms Garner submitted that she has not participated in gainful employment for many years but merely did some sewing as a hobby. She said the evidence shows that she has previously sold some items online and at a market stall in 2020. She said that she told the Medical Assessor that by the time of the assessment she had “clearly indicated a very limited level of activity of only doing some sewing in the security of her own home for supportive friends”. Ms Garner said that it was open to the Medical Assessor to find that her symptoms made her incapable of engaging in employment in the open labour market and that the Medical Assessor recorded that her social anxiety prevented her from continuing to attend markets.
Ms Garner said that the Medical Assessor took her current functioning into account, which explained the difference from the opinion of Dr Teoh whom she saw at the request of her solicitors in 2021.
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 Queanbeyan Racing Club Ltd v Burton[1] 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.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor said:
“Ms Garner is a 70-year-old woman who lives with her 80-year-old husband in South Grafton. She is in receipt of the aged pension and she does approximately 3 hours work per week as a seamstress for friends.”
The Medical Assessor set out Ms Garner’s present symptoms, including the paragraph quoted at [14] above, referring to her volunteering at an op shop.
When describing Ms Garner’s social activities and activities of daily living, the Medical Assessor said, in respect of social and recreational activities:
“She does go to the Op Shop intermittently but works alone out the back away from customers and other staff.”
The Medical Assessor gave the reasons set out at [15] above for assessing Ms Garner as totally impaired. He summarised the injuries and his diagnosis:
“Ms Garner was subjected to years of ongoing harassment and abuse in the workplace. She developed increasing symptoms of anxiety and depression and was eventually unable to continue working. She became anxious to the point of dissociation and depressed to the point of seriously contemplating suicide. She has had appropriate treatment but has not made significant progress. She continues to suffer from a persistent depressive disorder with anxious distress.”
When considering the evidence in the file the Medical Assessor said:
“ProCare investigations provided a report dated 17 October 2021. It was noted the claimant had an active website promoting her services as a seamstress. She conducted a stall at Maclean markets in January 2020. She conducts a home sewing business where she makes children's clothing, nurses scrubs and other items to order. She also offers sewing classes, mending and alterations under the name of Martha's Creations.”
In the PIRS table, the Medical Assessor assessed Ms Garner in class 3 for social and recreational activities and his reasons included that “she does go to the Op Shop intermittently but works alone out the back away from customers and other staff”.
The Medical Assessor gave reasons for assessing Ms Garner in class 5 for employability:
“Ms Garner is unable to return to work because of fear, and depression social anxiety. She is totally impaired.”
Other evidence
Even though the Application to Resolve a Dispute was filed in late 2023, the evidence was substantially out of date, the most recent statement being made over a year before, in August 2022. Ms Garner confirmed that her pre-injury hours were about five days per fortnight.
The final section of the statement is directed specifically to each of the PIRS tables and Ms Garner said in respect of adaptation or employability:
“Although my GP initially thought I could return to some sort of work, I don't think I could now. I find it hard just to get out of bed, never mind get dressed, leave the house and be able to engage in some sort of employment. I wouldn't cope with being around people , or having to answer questions. I would be constantly worried about doing something wrong like I am when I drive. I couldn't answer the phone and speak to new people, I don't even do that at home. I cannot think of any sort of employment I might be suitable for at this point.”
There is no reference in the statement about returning to the volunteering role at the op shop nor to her sewing activities. In the first statement to an investigator in 2019 Ms Garner said that she did “some sewing which I love.”
The notes from Ms Garner’s general practitioner were current to 2020 and the only reports from that doctor were written in 2019. The file does not contain notes or reports from any treating psychiatrist and the only reports from Ms Garner’s psychologist are dated 2019. Ms Garner said that she last saw a psychologist in February 2023. That is consistent with the Medical Assessor’s history that Ms Garner is not receiving treatment. The file shows that Frank Whiddon sought to obtain the notes from Ms Garner’s most recent treating psychologist without success.
Ms Garner relied on Dr Teoh’s report dated 16 April 2021. Despite noting that Ms Garner had lost her confidence to work, Dr Teoh assessed her in class 3 for employability and said that she was fit for suitable duties. He did not provide any detailed reasons in his report.
Dr Paisley saw Ms Garner on behalf of Frank Whiddon and reported on 2 December 2021. He considered that she could work up to 20 hours per week in a similar role with an alternate employer or location. Dr Paisley did not provide detailed reasons for his assessment of employability though he did consider that Ms Garner was cognitively intact. He assessed only 5% WPI.
An online investigation report was prepared dated 27 October 2021. At the time of that report, Ms Garner maintained a website and Facebook page in the name of Martha’s Creations advertising children’s clothing, nurses’ scrubs and hats and sold items on Ebay. Ms Garner accepted payment via Paypal, suggesting an active business. The most recent post on the Facebook page was on the day of the report and the report identifies several posts over the preceding months.
Dr Paisley reviewed the online investigation report and maintained his assessment in class 3 in a report dated 31 January 2022.
The file does not reveal any attempt by Ms Garner to respond to the online investigation report.
Consideration
The employability table of the PIRS focuses on a worker’s ability to work. The descriptor for class 1 is:
“No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker's education and training. The person is able to cope with the normal demands of the job.”
Class 2 is appropriate for:
“Mild impairment: Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).”
Class 3 applies to:
“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).”
Class 4 applies to:
“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.”
When a worker is totally impaired and cannot work at all, class 5 is appropriate.
In Jenkins v Ambulance Service of New South Wales[3] an Approved Medical Specialist (AMS) determined that the worker undertook some activities at home which “could attract remuneration under different circumstances”. Garling J said:
“The AMS was not called upon to decide an impairment level having regard to whether employment was in fact available. He was determining only impairment of capacity for work.”
[3] [2015] NSWSC 633.
Garling J held that it was open to the AMS to assess the worker in class 3 for employability and that an Appeal Panel was not in error in reaching the same conclusion.
The Medical Assessor was required to ascribe Ms Garner’s activities to the appropriate table of the PIRS. In Ballas v Department of Education (State of NSW) (Ballas),[4] Bell P and Payne JA explained the operation of the Guidelines:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.
In the present case, it was plainly ‘arguable’, to use the language of Vannini[5], that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ … This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.”
[4] [2020] NSWCA 86 at [94-[95].
[5] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324.
In Ballas, the majority said:[6]
“Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.
…
The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities.”
[6] At [96] and [100].
In the recent decision of Tasevski v Westpac Banking Corporation,[7] Schmidt AJ said:
[7] [2024] NSWSC 401 at [27]-[33].
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.
…
It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor’s conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”
The Medical Assessor was required to assess Ms Garner as a 70 year old woman with an 80 year old husband and to consider her employment capacity in that light. She did not work full time with Frank Whiddon so that measuring her employability by reference to full time work alone is inappropriate. As the examples for class 3 in the PIRS table show, employability is not measured only by reference to a worker’s pre-injury job.
Two particular areas of Ms Garner’s history were relevant when assessing employability – undertaking sewing for friends and volunteering at an Op Shop.
The Medical Assessor noted the contents of the online investigation report and questioned Ms Garner about part time sewing work. He accepted Ms Garner’s history that she was unable to do more than three hours per week for friends. He did not compare her history with the material in the online report which revealed an active online presence in 2021 suggesting a higher level of activity than she reported to the Medical Assessor, including advertising goods for sale. The investigation report shows that, at least in 2021, Ms Garner was running a business. The Medical Assessor did not obtain a history of a downturn in Ms Garner’s capacity since that time.
Even if Ms Garner is unable to maintain the level of activity evident in 2021, she said that she continued to sew “for friends”, not merely for herself or for pleasure. That connotes an ability to discuss with the friends what Ms Garner is required to sew and the capacity to provide the results within a reasonable time frame.
Her ability to undertake some sewing for others was relevant to the assessment of employability. It does not connote total impairment.
The Medical Assessor assigned Ms Garner’s ability to attend the Op Shop on a voluntary basis to the social and recreational activities table. There is no appeal with respect to the assessment under that table. However, on the basis of the decisions quoted above, the activity has been assigned to the incorrect table. The fact that Ms Garner goes to the Op Shop is relevant to the assessment of employability.
While volunteering may have provided an additional social outlet when Ms Garner was working and before her injury, the way in which she now performs it is not social. She said that she works “out the back” with the clothes and does not interact with customers or other staff. Though Ms Garner attends on a voluntary basis, she participates in activities which are necessary for the conduct of the shop and different to the requirements of running a home. Ms Garner’s ability to return to the shop, even in a different capacity and to a limited extent, reflects an ability to leave home and undertake tasks of a kind which would be required in employment.
The Medical Assessor’s failure to consider both sewing for friends and volunteering under the employability table is an error. Each of those activities indicates that Ms Garner has some capacity for work-like tasks. While her impairment is appropriately described as severe, it is not total. Ms Garner should be assessed in class 4 for employability.
When the scores assessed by the Medical Assessor are arranged in ascending order (1, 2, 2, 3, 3, 4), the median class score is 2.5 rounded to 3 and the aggregate score is 15. Under Table 11.7, that converts to 15% WPI. No appeal was raised with respect to the Medical Assessor’s deduction of one-tenth under s 323 of the 1998 Act. When that deduction is made the result is 13.5%, rounded to 14%
For these reasons, we have determined that the MAC issued on 22 February 2024 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: | W7871/23 |
Applicant: | Janet Catherine Garner |
Respondent: | The Frank Whiddon Masonic Homes of New South Wales |
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 Wayne Mason 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 | % WPI (after any deductions in column 6) |
| Psychiatric | 20.8. 2021 | Ch 11 | N/A | 15% | 1/10 | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
6
0