Wilson v Woolworths Limited
[2023] NSWPICMP 87
•13 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wilson v Woolworths Limited [2023] NSWPICMP 87 |
| APPELLANT: | Jasmine Wilson |
| RESPONDENT: | Woolworths Limited |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 13 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of 9% whole person impairment (psychological); whether Medical Assessor (MA) erred in assessing a class 2 impairment in respect of social and recreational activities; whether MA erred in assessing a class 2 impairment in respect of concentration, persistence and pace; whether MA erred in assessing a class 3 impairment in respect of employability; Held – Medical Assessment Certificate revoked new Certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Wilson, appeals from the Medical Assessment Certificate of Medical Assessor Smith dated 23 September 2022.
Ms Wilson worked at a Woolworths supermarket in regional New South Wales. She suffered psychological injury after a customer at the supermarket racially abused her and physically threatened her. The deemed date of injury is 14 May 2020.
Medical Assessor Smith assessed a 9% whole person impairment (psychological). In doing so, he assessed a class 2 impairment in respect of the rating scales Social and recreational activities and Concentration, persistence and pace, and a class 3 impairment in respect of Employability.
Ms Wilson says that his assessment of these three rating scales demonstrated error, because the evidence supports a class 3 impairment (rather than a class 2) in respect of the first two scales, and a class 4 or 5 impairment (not class 3) in respect of Employability. She seeks leave to rely on her unsigned and undated statement, in which she enlarges upon the answers given by her to questions posed at examination by Medical Assessor Smith in relation to social and recreational activities, her studies, her concentration, and her employability.
The delegate is satisfied that, on the face of the application, there is at least an arguable case in respect of demonstrable error. 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 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, though error was demonstrated in respect of two of the rating scales, there was sufficient evidence in the material before the Panel to correct it without an assessment.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The evidence contained in the appellant’s statement was available to the appellant prior to her assessment and at examination. It could reasonably have been obtained before examination. For those reasons, it does not satisfy the requirements of s 328(3) and is not admissible on 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 as follows:
(a) The evidence before the Medical Assessor in respect of Social and recreational activities supported a class 3 impairment and not a class 2, because:
i.the appellant told the Medical Assessor that she felt unsafe anywhere outside her home except in the houses of her mother and sisters, that she gets occasional mild anxiety at home, for instance when expecting new neighbours, she no longer attends monthly family fun days, she no longer helps her father run the local rugby league club, she sits with her back to the wall when going out to dinner, and has only done so three times in two years, she leaves family functions if there are too many people or there are people she does not know;
ii.in her statement of 14 June 2022, she said that she no longer goes out with family and friends, watches rugby or goes fishing;
iii.on 16 July 2021, she told Dr Chow that she does not pursue hobbies as she used to, is not seeing friends and is not social any more;
iv.Dr Ashwinder, who examined her on 10 November 2021, assessed a class 3 impairment on the basis that she was ‘quite cautious and hesitant and lacks confidence’;
v.the worker continued to seek treatment for her disorder, and
vi.when attending activities outside the home, the appellant is almost always escorted by her partner and step daughter.
(b) The evidence before the Medical Assessor in respect of Concentration, persistence and pace supported a class 3 impairment and not a class 2, because:
i.the Medical Assessor took a history that, though the appellant can read for the purposes of her studies, she has trouble remembering a full list, has difficulty in studying due to lack of concentration, being easily frustrated and has to stop half way through a written assignment, and spends 10 minutes on word puzzles and colouring in daily;
ii.in her statement of 14 June 2022, the appellant said she no longer goes out with family and friends or watches rugby or goes fishing, for lack of motivation and avoidance of going out;
iii.Dr Chow took a history that she had poor concentration, was forgetful, gets distracted easily and has left things behind;
iv.both Dr Chow and Dr Anand assessed a class 3 impairment, and
v.by virtue of the matters in the late-served statement on appeal, the Medical Assessor has taken an incorrect history.
(c) The evidence before the Medical Assessor in respect of Employability supported a class 4 or 5 impairment, and not a class 3, because:
i.the Medical Assessor found that the appellant could not work at all in the same position, and can perform less than 20 hours per week in a different position. There is no evidence to support the latter proposition, and it is contrary to her own belief, expressed in her statement of 14 June 2022, that she could not ‘manage any work at the moment’;
ii.Dr Chow found that she was totally unfit for work on 16 July 2021;
iii.she continued to seek treatment from her general practitioner and psychologist, and
iv.the Certificate of Capacity dated 21 July 2022 assessed her as having no capacity for work up to 21 September 2022, adding that she continued to experience panic attacks.
In reply, the respondent submits as follows:
(a) In respect of Social and recreational activities:
i.a class 2 impairment was reasonably open on the evidence, because, the appellant admitted that she could attend events without a support person, though she does not become actively involved, she could leave the house even shough she fell unsafe outside, she attended school assemblies and NAICDOC week activities at the school, had been fishing with her partner and 10 year old stepdaughter, and regularly drove with them to a café at Silverton, she would babysit her sister’s two year old daughter;
ii.in the alternative, if the evidence was capable of satisfying the criteria for class 2 or 3, it was open to the examiner to use his clinical judgment in determining the best fit;
iii.the Medical Assessor had regard to the reported restrictions on the applicant’s activities, and gave reasons for preferring class 2, and
iv.a mere difference of opinion about which reasonable minds may differ is insufficient to establish error: Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140.
(b) In respect of Concentration, persistence and pace:
i.the Medical Assessor found that the appellant can undertake a standard course at a slower pace, and can focus for up to 30 minutes on intellectually demanding tasks before becoming fatigued or developing headache. This supports a class 2 assessment, and
ii.he explained that, by the time of his examination, the appellant’s symptoms had improved since examination by Dr Chow and Dr Anand.
(c) In respect of Employability:
i.the Medical Assessor noted that the appellant had been unable to work since July 2021, but noted that she was studying for a career in aged care and disability support, with three months of the course left. He noted difficulties with concentration, but was told by the appellant that she expected to pass the course;
ii.the appellant told him that her anxiety has improved somewhat, and that she would feel comfortable working at a facility at which was maintained by her stepfather, despite the risk of aggression from dementia patients, and
iii.it was open to him to find that she was capable of working 20 hours per week.
FINDINGS AND REASONS
Social and recreational activities
The criteria for classes 2 and 3 impairment in the Guidelines are as follows:
“Class 2
Mild impairment: occasionally goes out to such events [social activities that are age, sex and culturally appropriate] eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
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.”
The Medical Assessor gave the following reasons for assessing a class 2 impairment – emphasis added:
“Ms Wilson is unable to attend large scale crowded social events. She is uneasy in and avoids noisy or crowded venues or places where people may be intoxicated or disinhibited. She has no restriction on attending smaller, more intimate events with family and can socialise with family without a support person. She can attend school events. She enjoys quieter recreational activities, including camping. She is at ease having family over or spending time at her as long as she feels in control of the social environment. She can babysit for family.”
The Medical Assessor noted at [4] that present symptoms included pounding of the heart if the appellant had to visit Coles, taking her 20 minutes to get out of the car. She shopped at Coles at 8pm every two to three days, but could not go to Woolworths.
She told him that she locked the doors when driving around town, and felt unsafe anywhere except in the houses of her sisters or partner’s mother. Though she denied panic attacks, she described ‘pre-panic attacks’ when she suffered palpitations and feeling sick in the stomach, which she managed by dropping everything and leaving.
She said that her partner is with her 90% of the time. She said that she can pick up her stepdaughter, whom she helps care for, from school and that she attends school assemblies and NAIDOC activities at the school.
She said she had ceased to help her stepfather running the local rugby club.
She told the Medical Assessor that she had been out for dinner three times in two years, and that:
“she is frightened around drunk or disinhibited people, … has to sit with a clear view of the room and tries to sit in a corner with her back to the wall. She said she feels uneasy and cannot wait to get out.”
She described travelling with her partner and stepdaughter to fish at Menindee Lakes, and to a café at Silverton.
She also described socialising with her sisters and caring for her nieces and nephews on both sides of the family. However, even at family functions, she said she leaves if it becomes too crowded or there are people she does not know.
The task of the Medical Assessor was to consider the signs and symptoms of the appellant’s psychological condition, as she presented on the day of examination, and determine into which rating scale those signs and symptoms best fit. If they were capable of fitting into more than one rating scale, he was obliged to give reasons for preferring one over the other.
He was not bound to make the same assessment as any other assessor, including Dr Chow or Dr Anand. In any event, they had assessed her long before he did, in July and November of 2022 respectively. The Medical Assessor examined the worker on 12 August 2022, and noted that her condition had improved since previous assessments.
However, the worker’s social activities, as elicited by the Medical Assessor on examination, suggest a person who, on the whole, does not go out unless accompanied by a family member. It can readily be inferred that, at school events, the worker was accompanied by her stepdaughter. At all other events, it seems she was accompanied by her partner or other family members. In her statement of 14 June 2022 at [19], she said she only goes shopping with her partner or stepdaughter. In any event, there is no evidence to suggest that this was a ‘social’ activity, in the sense that it involved any meaningful interaction with others of social nature, or that it was recreational in nature.
She described to the Medical Assessor almost constant anxiety, even when at home, which is generally a safe place. She needs a support person when out, and her partner is with her 90% of the time, acting as a phobic companion, as she could not manage her anxiety without support.
In our view, the evidence before the Medical Assessor satisfied the criteria for class 3, that the worker ‘will not go out without a support person’, and ‘rarely goes out’ to social events. It did not satisfy the criterion for class 2, that the worker ‘occasionally goes out to [social activities that are age, sex and culturally appropriate] eg without needing a support person’.
In those circumstances, it was not open to select a class 2 impairment, and error is demonstrated. It is not a case of the application of clinical judgment to a situation where the worker’s behaviours might have satisfied either class.
This ground succeeds. The Medical Assessment Certificate must be set aside and the worker assessed with a class 3 impairment in respect of Social and recreational activities.
Concentration, persistence and pace
The criteria for classes 2 and 3 impairment in the Guidelines are as follows:
“Class 2
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.
Class 3
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 Medical Assessor gave the following reasons for assessing a class 2 impairment:
“Ms Wilson can undertake a standard course at a slower pace. She can focus for periods of up to 30 minutes before becoming distracted or frustrated.”
These findings correspond with precision to the criteria for a class 2 impairment. They are consistent with the history that he took. At [4] Ms Wilson told the Medical Assessor that she was undertaking a course in aged care and disability support with a view to obtaining employment as an assistant in nursing. She had started in March 2022, and expected to pass the course by October or November 2022. The course is online, except for practical sessions. She had problems with concentration which affected her studies. She said she might get half way through and assignment before needing to stop, and that one assignment took nearly two hours. She said she was able to read for the purposes of her studies, but was slower and easily frustrated. For 10 minutes a day, she does word puzzles and colouring in.
From the Medical Assessor’s reasons, we infer that he also elicited a history that Ms Wilson was able to concentrate for up to 30 minutes, which is not inconsistent with the above.
The history is quite inconsistent with the first criterion for a class 3 impairment, namely that Ms Wilson is unable to read any more than newspaper articles. There is no evidence that she satisfies the remaining criteria for class 3.
The task for the Medical Assessor was to assess the worker as she presented in
August 2022. The Medical Assessor was not bound by the contrary assessments of Dr Chow and Dr Anand in 2021.The social and recreational activities relied on in the appellant’s submissions not relevant to this rating scale.
We can identify no error. This ground fails.
Employability
The criteria for classes 3, 4 and 5 impairment in the Guidelines are as follows:
“Class 3
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
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.
Class 5
Totally impaired: Cannot work at all.”
The Medical Assessor gave the following reasons for assessing a class 3 impairment:
“Ms Wilson cannot work at all in the same position. She can perform less than 20 hours per week in a different position which is qualitatively different. She has been studying and is preparing for a career in aged care as an Assistant in Nursing.”
These findings reflect with precision the criteria for a class 2 impairment. He made those findings after taking into account the presentation of the worker, whose condition he found had improved since previous assessments, and her description of her symptoms and activities, including her description of her studies. He also questioned her at [4] on how she would cope with aggression from dementia patients. She replied that she was not concerned, having observed that her stepfather and sister-in-law work at the local nursing home.
The task for the Medical Assessor was to make his own assessment as to the worker’s employability. In doing so, he appears to have relied on the worker’s own assessment that she could cope with patients’ aggression, at least in a supported environment where her relatives were working, and on her willingness and ability to engage in vocational study.
The fact that she feels she could cope with work as an assistant in nursing, and that she is able to study for such a position, does not necessarily prove that she is capable of working. The history taken by the Medical Assessor demonstrates that she had serious difficulties with dealing with other people, and needed support persons – be they friends or family – to cope with such interactions. The symptoms elicited at assessment, combined with the fact that she was contemplating employment at the local nursing home where her relatives worked, suggests that she needs support persons even in the workplace.
In those circumstances, and having regard to her ongoing anxiety condition which is symptomatic even at home, it is difficult to see how she could cope successfully with regular paid employment. The Medical Assessor did not grapple with the difficulties that she would inevitably face in employment, given her reliance on and need for support persons to be present.
Objectively, anxiety symptoms as severe as those described to the Medical Assessor, even if they could no longer be described as full panic attacks, and the need for support in dealing with anyone but family members, suggests that the worker would not currently be capable of coping with any regular paid employment. That is not consistent with the criteria for class 3. It is consistent with the criteria for class 5.
In those circumstances, the selection of a class 3 impairment demonstrated error.
For all these reasons, the Appeal Panel has determined that the MAC issued on
23 September 2022 should be revoked, and a new Medical Assessment Certificate should be issued. For the reasons given, the evidence before the Medical Assessor justified a class 3 impairment in respect of Social and recreational activities, and a class 5 impairment in respect of Employability. Our assessment reflects this, and is contained in the new certificate attached.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3674/22 |
Applicant: | Jasmine Wilson |
Respondent: | Woolworths Limited |
| 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 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) |
| Psycho-logical | 12/08/2019 | 11, page 55-60 | 14 | 9% +2% adjustment for the effects of treatment | 0% | 11% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
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 Smith and
issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE ISSUED BY THE APPEAL PANEL, PERSONAL INJURY COMMISSION.
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Jasmine Wilson | Claim reference number (if known) | W3674/22 |
| DOB | (DOB omitted) | Age at time of injury | 25 |
| Date of Injury | 14/05/2020 | Occupation at time of injury | Checkout Operator |
| Date of Assessment | 12/8/2022 | Marital Status before injury | Defacto |
| Psychiatric diagnoses | 1. PTSD – chronic | 2. | |
| 3. | 4. | ||
| Psychiatric treatment | Antidepressant medication, psychological therapy and psychiatric review | ||
| Is impairment permanent? | Yes | No (circle one) | |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 | Ms Wilson is indifferent to her appearance. She is less fastidious with her appearance than prior to the injury. She is showering every day and looking after her dental hygiene. She is able to live independently and care for others. | |||||||||
| Social and recreational activities | 3 | Ms Wilson is unable to attend large scale crowded social events. She is uneasy in and avoids noisy or crowded venues or places where people may be intoxicated or disinhibited. She can attend school events. She enjoys quieter recreational activities with family, including camping. She needs a support person to attend social and recreational activities. She is at ease having family over or spending time at her family’s house as long as she feels in control of the social environment. | |||||||||
| Travel | 2 | Ms Wilson can travel locally without a support person and further afield with her partner. She feels uneasy unless her partner is with her. | |||||||||
| Social functioning | 2 | Ms Wilson is uneasy around people she does not know. She has had no difficulty sustaining supportive and trusting relationships with her partner and family. | |||||||||
| Concentration, persistence and pace | 2 | Ms Wilson can undertake a standard course at a slower pace. She can focus for periods of up to 30 minutes before becoming distracted or frustrated. | |||||||||
| Employability | 5 | Ms Wilson cannot work at all in regular remunerative employment, due to her need for family support persons in dealing with others and her persistent anxiety symptoms. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 5 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| 2 | +2 | +2 | +2 | +3 | +5 | 16 | 9 | ||||
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