Webb v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management

DETERMINATION OF APPEAL PANEL
CITATION:	Webb v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2024] NSWPICMP 404
APPELLANT:	Lauren Anne Webb
RESPONDENT:	Serendipity (WA) Pty Ltd trading as Advanced Personnel Management
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	26 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Appellant submits that the Medical Assessor (MA) erred in failing to consider treatment effects in accordance with Chapter 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, 1 March 2021 (the Guidelines); Zoric v Secretary, Department of Education & Ors considered; Held – no error by MA; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 March 2024 Lauren Anne Webb (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
21 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
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 ground(s) 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

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 worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to consider treatment effects in accordance with Chapter 1.32 of the Guidelines.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on
2 May 2018.
The Medical Assessor obtained a detailed history of the circumstances of the injury.
Present treatment was noted as follows:
“Ms Webb is prescribed the medications escitalopram 20mg, dexamphetamine up to 20mg daily, quetiapine 50mg, metoclopramide as required for nausea, a statin for hypercholesterolaemia, and omeprazole for reflux. She meets with her psychiatrist, Dr Elton monthly; her psychologist Jacqueline Welch, monthly, and her GP, Dr Aziz, monthly and as required.”
Present symptoms were described as:
“Ms Webb describes her physical and psychological symptoms as varying over the course of the week. She can have several days when her physical health is poor with increased shaking, difficulty moving, tightness in her jaw, headaches, and ‘it’s like I am electrified everywhere’. Ms Webb has chronic pain in her back and neck, and shaking in her legs causes instability occasionally leading to falls. Ms Webb describes experiencing ‘seizures’ lasting between 5 and 20 seconds which occur once or twice per month. She often feels nauseous for which she takes an anti-emetic. Due to the varying severity of her physical symptoms, it is difficult for Ms Webb to make plans.
Ms Webb describes a general fearfulness which she attributes to the situation in the workplace in March 2017 and following. This is both at home and in the community. She is generally hypervigilant for any threat and reports an increased started reflex. She has intrusive recollections of the workplace incident which cause her distress.
Ms Webb tries to avoid reminders of her former workplaces and is more distressed when she has to pass these to visit a friend.
Ms Webb described her mood as ‘down’ most of the time, frustrated, miserable, and that she feels angry with herself. She denied any active thoughts to end her life. She describes poor concentration such that she reads rarely and much more slowly now compared to before her injury. She recognises that there are positive things in her life including positive relationships with her family members and enjoyment from her two dogs and three cats.”
When asked to provide “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor said:
“Ms Webb recalls meeting with a psychologist in Sydney on several occasions during her 20s and being prescribed the antidepressant and antianxiety medication escitalopram. This episode was associated with family difficulties and recovery from an assault while travelling overseas. Ms Webb continued pharmacological treatment in the long term. There is a history of a wide range of physical symptoms without identifiable organic pathology dating back to Ms Webb’s teenage years.”
The Medical Assessor then commented on her general health and said:
“Ms Webb has seen a broad range of medical specialists over recent years due to her physical symptoms. The opinion of the neurologists appears settled on a functional neurological disorder. Ms Webb also has chronic pain and frequent nausea and takes medication for these.”
The Medical Assessor then turned to consider the impact of Ms Webb’s injury on her social activities and her activities of daily living (ADL’s) and said:
“Ms Webb lives with her two dogs and three cats. She has daily contact with her family and one close friend either by telephone or online, and her mother is a frequent visitor from her home in Parkes. Ms Webb describes her physical symptoms as varying frequently which causes variation in her daily activities. She usually gets out of bed between 06:30 and 07:00. She will prepare food for her pets and then let them out on to her balcony. She no longer takes her dogs for walks due to her symptoms. She then makes a coffee for herself and takes her medication. She will put on the television or Youtube for her animals and may check Facebook online for herself. She then does some stretching to ease discomfort.
Ms Webb may do some cooking during the day including preparing meals for times when her symptoms are exacerbated and she is unable to cook. She gave the example of making Chinese dumplings or pasta dishes. Ms Webb sometimes sleeps during the day.
Ms Webb typically goes to the shops for groceries every two weeks. She attends some medical appointments. She can drive in her local area and occasionally to visit family and her one close friend.”
Findings on examination were reported as follows:
“The assessment today was by telehealth and so mental state examination necessarily limited. Ms Webb was supported by her mother, Lisa Flowers, who provided some helpful comments. Ms Webb had a noticeable tremor of her head and hands. Her self-care appeared reasonably good. Her speech was initially rather staccato in form though this decreased as the interview progressed. She gave a detailed history spontaneously. Her affect was reasonably bright and varied with the material under discussion in an appropriate manner. Her mood was subjectively low and frustrated and objectively moderately low with increased anxiety. There were no active suicidal thoughts. Ms Webb’s thought form was moderately circumstantial though easily re-focussed. There were no delusions or abnormal perceptions. Ms Webb was fully alert and orientated. She attended adequately for the purposes of the assessment. I did not carry out a formal cognitive assessment. Ms Webb identifies with the diagnoses of PTSD and functional neurological disorder (FND).”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“Ms Webb has had problems with her physical and mental health since adolescence and young adult life. Following a serious incident in the workplace in March 2017 and subsequently, Ms Webb developed a constellation of physical and psychological symptoms which have caused considerable impairment and become persistent. Ms Webb has complex co-morbidity. In my opinion the most appropriate categorical diagnoses are Post-Traumatic Stress Disorder; Somatic Symptom Disorder, persistent; Conversion Disorder (Functional Neurological Symptom Disorder) and Major Depressive Disorder with anxious distress.”
The Medical Assessor assessed 22% WPI from which he deducted one-tenth pursuant to
s 323 for the pre-existing condition, leaving a total of 20% WPI.
He then set out in considerable detail a summary of all the medical and other evidence he had before him.
We point out at this stage that not one doctor referred to by the Medical Assessor made any adjustment for the effects of treatment.
We do not intend to set out in detail the appellant’s submissions but they can briefly be summarised as follows:
(a)    the appellant, from the time of her injuries to the date of the medical assessment, has required and undergone significant treatment for her injuries;
(b)    the treatment which she has undergone from the time of her injuries has been extensive and significant;
(c)    the treatment has enabled the appellant to function at her current capacity – that is, it has substantially eliminated her permanent impairment;
(d)    if such effective, and long-term, treatment were to cease, the appellant submits that her condition would deteriorate, and she would then be likely to revert to the original level of functioning/degree of impairment;
(e)    despite noting the appellant’s treatment, the Medical Assessor did not consider the positive effects such treatment had, and continued to have, upon the appellant’s injury and the effects of such treatment ceasing;
(f)    the Medical Assessor failed to consider and/or apply cl 1.32 of the Guidelines;
(g)    Clause 1.8 mandated the assessment of the Appellant’s degree of impairment to have been determined using the Guidelines where appropriate, and
(h)    on any view of the evidence, cl 1.32 was engaged as the ceasing of the appellant’s treatment would undo the positive effects of same and cause a deterioration of the appellant’s condition.

Discussion

The appellant’s submissions are misguided for reasons that follow.
Subsection 1.32 of the Guidelines provides:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
A similar issue was recently dealt with by the Supreme Court in Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 (Zoric) where Chen J said:
“The clause may thus be understood to involve, and require findings about, the following ‘steps’:
1.First, whether there has been effective long-term treatment of an illness or injury.
2. Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3. Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
Upon satisfaction of each step, the medical assessor may increase the percentage of WPI by 1%, 2% or 3%. no submissions were directed to the proper construction of it – in particular, the meaning to be given to the term ‘may’ (broadly, whether it is discretionary or mandatory).
In relation to the first step, therefore, there needs to be a finding about the “illness or injury” that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [52] as follows:
Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause…
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
As the respondent correctly points out:
“The applicant has not demonstrated that there has been ‘effective long-term treatment’ that has resulted in ‘the apparent substantial total elimination’ of the relevant impairment. Indeed, the MA assessed a WPI of 20%, which, on the face of it, is a significant impairment.”
Dr Ashwinder Anand, recorded a history of her treatment, assessed a 20% WPI and did not make any adjustment for the worker’s impairment under this section.
Similarly, Associate Professor Michael Robertson, who recorded a history of her treatment, assessed a 25% WPI and made no adjustment to his WPI assessment under s 1.32 of the Guidelines.
In that regard, it is difficult to identify how the Medical Assessor has “come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel” as noted in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 per Basten JA.
There was no history recorded by the Medical Assessor of any substantial or total elimination of the appellant’s symptoms and/or permanent impairment.
The Medical Assessor also recorded that the applicant is being prescribed escitalopram 20mg, dexamphetamine up to 20mg daily, and quetiapine 50mg which the Panel regards as reflecting a substantive condition.
In our view, it cannot be said that the appellant has satisfied the first two steps identified in Zoric.
In terms of the third step, as Chen J said: “the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
Having determined that the appellant has not satisfied the first two steps, it follows that the third step is not engaged.
There is no reasonable basis to conclude the Medical Assessor did not consider the effect of her treatment in the MAC when assessing the extent of her permanent impairment, nor that the other IME’s failed to consider this issue.
The task of the Medical Assessor is to weigh up all the medical evidence and draw their own conclusion based on their own clinical assessment in accordance with the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on
21 February 2024 should be confirmed.

[2024] NSWPICMP 404

26 June 2024