Wingecarribee Shire Council v Wilson
[2025] NSWPICMP 72
•7 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wingecarribee Shire Council v Wilson [2025] NSWPICMP 72 |
| APPELLANT: | Wingecarribee Shire Council |
| RESPONDENT: | Marie Wilson |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 7 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Whether when assessing the degree of the respondent’s permanent impairment from her injury the Medical Assessor (MA) erred by taking into account matters that occurred in respondent’s work subsequent to the factors that gave rise to her injury; whether MA failed to take into account relevant evidence when rating the respondent’s impairment in all of the psychiatric impairment rating scale (PIRS) categories; Held – MA assessed the degree of the respondent’s permanent impairment from her injury and the matters that occurred subsequent to her injury had no impact on the respondent’s impairment from her injury; Appeal Panel held that with the exception of Social Functioning the MA’s ratings of the respondent’s impairment in the PIRS categories did not involve any error and the appellant’s submissions amounted to cavilling with the MA’s clinical judgement; Appeal Panel held that the MA’s rating of the respondent’s impairment in Social Functioning could not be justified on the evidence and his rating was wrong; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 October 2024 Wingecarribee Shire Council 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 2 October 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 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 (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).
RELEVANT FACTUAL BACKGROUND
Marie Wilson was employed by the appellant between 20 April 2015 and 1 July 2021 in the position of human resources business partner. She suffered a psychological injury due to her employment. She claimed compensation from the appellant for permanent impairment she said she had from her injury. She relied on a report of psychiatrist Dr Glen Smith dated 17 November 2022 to support her claim. Dr Smith had examined her at the request of her solicitors and advised in his report that he assessed the respondent had permanent impairment from her injury of the order of 19% whole person impairment (WPI). He advised that he diagnosed the respondent’s injury as major depressive disorder with anxious distress which he said had occurred “due to the events in her employment from around February 2020”. In answer to a question that was put to him by the respondent’s solicitors relating to whether the respondent’s employment with the appellant was the main contributing factor to her injury he answered in the affirmative stating “there was no pre-existing history of psychiatric symptoms and her symptoms developed in the context of distressing conduct by her manager, Amanda, and there was no effective management action taken after she made a complaint regarding her conduct”.
The respondent’s claim for compensation for permanent impairment was rejected by the appellant’s insurer. In a notice it issued to the respondent on 5 May 2023 pursuant to s 78 of the 1998 Act, it advised the respondent of its reasons for its decision, which were, in substance, that it considered that the respondent suffered two psychiatric injuries, one occurring due to interaction she had in her employment with Ms McLaughlan, and the second occurring due to circumstances relating to her resignation from her employment. It advised the respondent it relied upon reports of psychiatrist Dr Jeff Bertucen dated 26 July 2022,
7 October 2022 and 13 March 2023 who, the respondent said, supported “a finding that there had been two distinct injurious events”. It advised, in substance, that it did not consider the appellant was liable for the second injurious event, that being the circumstances relating to the respondent’s resignation from her employment. It further advised that her permanent impairment from the first event, was less than 15% and consequently she did not exceed the threshold imposed by s 65A of the 1987 Act for her to be entitled for compensation for permanent impairment from the injury it said she suffered due to her interactions with
Ms McLaughlan.Dr Bertucen had examined the respondent on two occasions, firstly on 20 July 2022 and then subsequently on 7 March 2023. He produced two reports following his first examination, they being dated 26 July 2022 and 7 October 2022. His report relating to his subsequent examination is dated 15 March 2023. In his first report he advised that the respondent suffered from chronic adjustment disorder with features of depressed mood and anxiety which had evolved into chronic major depressive disorder with prominent features of anxiety. He said the respondent’s illness first manifested in late 2020, fluctuated over the first half of 2021 with a brief hiatus of remission following “Amanda” leaving the appellant’s employment on 4 June 2021 and then regressing sharply in the following week with the circumstances relating to her resignation. Dr Bertucen advised that “on the balance of probabilities,
Ms Wilson’s psychological disorder (chronic adjustment disorder) was substantially caused by the interactions that she had with Amanda over the previous twelve months, however the issuing of a Deed of Release in conversations regarding with Mr Oppitz, were in my opinion a final culminating factor”.The Appeal Panel notes that the Deed of Release and the conversation with Mr Oppitz relate to the respondent’s resignation from her employment.
By an Application to Resolve a Dispute dated 7 March 2024 the respondent instituted proceedings in the Personal Injury Commission (Commission) seeking the Commission determine her claim for compensation for permanent impairment. The matter was referred to one of the Commission’s members, namely Mr Gaius Whiffin, who on 12 April 2024 made several directions with the consent of the parties that were recorded in the Certificate of Determination issued on that date. They included the following:
“I remit this matter to the President for referral to a Medical Assessor pursuant to s321 of the Workplace Injury Management and Workers Compensation Act 1998
for assessment as follows:
a. date of injury: 2 December 2022 (deemed date for the purpose of the
applicant’s claim pursuant to s66 of the Workers Compensation Act
1987);
b. body systems/parts: psychiatric and psychological disorders; and
c. method of assessment: whole person impairment
The Certificate of Determination also recorded the following notation:
“The Commission notes that the applicant does not rely upon her resignation/cessation of employment in June 2021, or discussions in relation to same, as being causative of her injury.”
The Medical Assessor examined the respondent on 10 September 2024 to conduct his assessment of the medical disputes relating to the respondent’s claim for compensation. As said, he issued the MAC on 2 October 2024. In that he certified he assessed the degree of the respondent’s permanent impairment from her injury was 15% WPI.
The history the Medical Assessor detailed in the MAC included the adverse interactions the respondent had with a co-worker from February 2020. The Medical Assessor also recorded that the respondent experienced an increase in bullying and harassment in November 2020 which the respondent reported to a senior manager. The Medical Assessor noted that the respondent developed panic attacks, agitation, initial and terminal insomnia, depressed mood with recurrent suicidal thoughts, had low energy and loss of motivation, and had loss of self-esteem and poor concentration.
The history the Medical Assessor recorded also included the respondent’s receipt of a letter while she was absent from work due to her psychiatric illness wherein, according to the respondent, a senior manager had requested her resignation within a few days of the letter. The Medical Assessor recorded, with respect to that incident, that;
“the claimant, whilst suffering from nihilistic depressive ruminations of hopelessness and worthlessness, signed the document and returned it to her employer. She reported she was receiving treatment for her primary psychological injury under a NSW Workcover claim at that time.”
The Medical Assessor noted that the respondent became tearful and fearful on the receipt of the letter from the appellant. The Medical Assessor noted that the respondent’s “self-esteem and workplace resilience was broken”. When read in context, the Appeal Panel considers that the Medical Assessor’s reference to the respondent’s self-esteem and resilience being broken is a description of how the respondent was feeling at and around the time she received the letter, as distinct from being a consequence of receiving the letter.
The Medical Assessor extracted in the MAC parts of the documentary evidence that had been provided to him, including parts of a statement the respondent signed on
13 December 2021. They were to the effect that the respondent had not worked since
11 June 2021 and that she was extremely distressed after a phone call she had received from a trade union representative and that she was on two lots of medication for depression and sleep.At the start of Part 9 of the MAC the Medical Assessor listed the matters on which he based his assessment of the respondent’s WPI. These included the documents that had been forwarded to him. The Medical Assessor also said this:
“The claimant was independent in her lifestyle and capacity to work in her chosen career for many years prior to the onset of this primary psychological injury. The claimant was fit for employment in her role allocated by the employer, prior to the onset of this primary psychological injury. The claimant was able to work without psychological injury or impairment for this employer prior to the onset of this primary psychological injury.
The change in role by a co-worker resulted in the claimant becoming the focus of this coworker’s ongoing bullying and harassment. Because of the bullying and harassment, the claimant suffered this primary psychological injury had not remitted at any time from the date of onset to this assessment.”
The Medical Assessor’s ratings of the respondent’s permanent impairment was done by reference to the Psychiatric Impairment Rating Scale (PIRS), which is detailed at paragraph 11.11 and 11.12 and Tables 11.1 to 11.6 of the Guidelines. His ratings of her impairment in the several categories comprising that scale and his reasons for his ratings are as follows:
PIRS category
Class
Reasons for decision
Self-care and personal hygiene
2
The claimant was independent in her self-care and personal hygiene. She was able to independently cook simple meals, and she was more reliant on take-away meals. She would miss showers, and her personal hygiene and self-care was less than prior to the onset of this primary psychological injury. The claimant had the support of her brother-in-law who would provide handyman and home maintenance help as she lacked energy and interest in maintaining the home. She said her brother-in-law had assisted with installing essential items such as blinds in her house.
Social and recreational activities
2
The claimant had stopped attending her daughter’s Christmas celebrations. She reported that she had no energy and had lost interest in her adult children’s careers and her grandchildren’s development and school progress. The claimant reported that she had a holiday with her sister and brother-in-law. She reported that her sister and brother-in-law worked for Qantas. They had special flights available for her and the three of them took time in Bali to support the claimant’s attempt to recuperate from this primary psychological injury. She reported that she did not enjoy the trip as much as she expected. The claimant reported that she stopped watching television and her favourite sporting team. She had not followed the Australian swimming team’s performance in the Olympic Games in 2024.
Travel
2
The claimant could drive and travel within her local community. She was able to travel in her local and familiar areas without support. She would drive to her local shops. She had moved closer to her sister’s home since being forced to sell her home and downsize due to her loss of income. The claimant said she chose to live in a smaller house closer to her sister for support. The claimant was able to travel to unfamiliar locations with support of her sister and brother-in-law such as the resort in Bali.
Social functioning
3
The claimant reported that she had separated and left the house where she was living with her eldest daughter due to verbal arguments between them. She said that her eldest daughter would make demands on her to care for the grandchildren. The claimant reported she lacked energy and was unable to care for her grandchildren. The claimant reported her daughter would make repeated angry remarks towards her such as, “The problem with you is you’re mentally ill!” The claimant reported that her daughter’s taunting of her being “mentally ill” caused her to suffer from excessive shame and guilt, as she was unable to be a mother to her daughter or a grandmother to her grandchildren.
The claimant reported that her relationship with other members of her extended family were also strained.
Concentration, persistence and pace
3
The claimant reported that she had lost her capacity to perform complex tasks or follow her favourite television series. She would not be able to concentrate for more than a few minutes. She has lost interest in reading. She was less interested in her photography. She makes errors
whilst attempting to manipulate the images she had collected. She reported that she had unable to read more than short newspaper articles. She finds it difficult to follow complex instructions. She is slow in her typing of documents, such as the application for volunteering at Cessnock Hospital. The claimant reported that her indecisiveness was marked since the onset of her depression. She would require prompting to remain on topic.
Employability
3
The claimant could not return to her prior employment due to the bullying and harassment she had endured whilst employed with this employer. The claimant remained symptomatic from her primary psychological injury, alone.
The claimant had worked as a volunteer for various organisations. She would usually work between 4 – 6 hours per week, depending on the requests made from the charity. She had recently applied to work at Cessnock Hospital for 4 – 6 hours per week.
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 because the material before the Appeal Panel is sufficient for it to deal with the appeal.
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, to provide a summary of them, they are that the Medical Assessor wrongly took into account the respondent’s resignation from her employment when assessing the degree of the respondent’s permanent impairment from her injury. The appellant submitted that the proportion of her impairment that was due to her resignation from her employment should have been excluded by the Medical Assessor from his assessment of the respondent’s permanent impairment from her injury. The appellant submitted this is because the respondent did not rely upon her resignation from her employment as being causative of her injury.
The appellant submitted that the Medical Assessor based his assessment of the respondent’s impairment in self-care and personal hygiene on incorrect criteria and made an error because the Medical Assessor did not consider relevant evidence, specifically the respondent’s bank statements which the appellant contended did not reveal any transaction in which the respondent purchased a take-away meal. The appellant submitted that the Medical Assessor wrongly accepted the respondent’s “subjective history” that she had become more reliant on take-away meals. The appellant submitted that the Medical Assessor made an error by not establishing the extent to which the respondent relied on take-away meals beforehand.
The appellant submitted that photos of the respondent taken in events in March 2024 showed the respondent was well-presented and suitably attired revealed that her self-care and personal hygiene were satisfactory. The appellant submitted that these photographs and other evidence “are suggestive of the worker being able to independently self-care and maintain her personal hygiene”.
The appellant referred to the respondent relying on her brother-in-law to perform home maintenance in her home. The appellant submitted that “there is no suggestion the worker would have performed such tasks prior to the onset of her claimed psychological injury”. The appellant submitted that the Medical Assessor did not obtain a history of the extent to which the respondent would have performed handy person tasks prior to her injury and whether this had changed. The appellant submitted this amounts to a demonstrable error.
The appellant submitted that the respondent’s capacity in self-care and personal hygiene is consistent with the normal variation for the general population. The appellant submitted that the respondent’s impairment in self-care and personal hygiene should be rated as Class 1.
The appellant submitted that the Medical Assessor erred with respect to his rating of the respondent’s impairment in social and recreational activities because he took into account sequalae associated with the respondent’s cessation of employment. As the Appeal Panel understood this submission of the appellant, that sequalae related to the respondent changing her place of residence.
The appellant referred to the clinical records of the respondent’s psychologist Ms Tania Bonner which variously recorded the respondent had been proactive in looking for ways to engage with her community, was planning to spend Christmas in 2023 with her son, and that she had a good Christmas. The appellant submitted that the Medical Assessor failed to consider this evidence.
The appellant further submitted that the Medical Assessor did not obtain a history of the extent to which the respondent followed the Australian swim team before her injury compared to subsequent to her injury. The appellant submitted that the Medical Assessor accepted the respondent’s report that she did not enjoy her trip to Bali as much as she expected and the appellant further submitted this was not consistent with the record of
Ms Bonner which was that her trip to Bali was “nice but stressful as her brother-in-law got sick”.The appellant submitted that the Medical Assessor wrongly assessed the respondent’s impairment in travel as Class 2. The appellant submitted that it was not unreasonable for the respondent to have someone accompany her when travelling outside her local area to look at a house to purchase. The appellant submitted that that is within the normal variation of the general population. The appellant referred to the respondent travelling to Bali with her sister and brother-in-law which the appellant submitted indicates the respondent travelled to unfamiliar locations with family members, which the appellant contended was within the normal variation of the general population.
The appellant submitted that the Medical Assessor’s rating of the respondent’s impairment in social functioning as Class 3 amounts to an error. The appellant submitted there is no evidence of separation, domestic violence or the need of intervention of community service and family members. The appellant referred to the records of Ms Bonner that included a hurtful comment the respondent’s daughter made to the respondent. The appellant submitted that that appeared to be “a once only occasion”, which was not suggestive of a long-term breakdown of the relationship and that any fallout from that resulted from the insensitivity of the respondent’s daughter not from the respondent’s injury. The appellant submitted that the deterioration of the respondent’s relationship with her daughter was due to the behaviour of the daughter rather than the respondent’s psychological symptomology.
The appellant submitted that the records of Ms Bonner do not substantiate the history the Medical Assessor obtained that the respondent’s relationship with the other members of her family were strained. Particularly, the appellant referred to the respondent going to her son’s wedding and a record that the family dynamics around her son’s wedding have settled but the respondent still became anxious of the thought of conflicts between her children.
The appellant submitted that the Medical Assessor erred by assessing the respondent’s impairment in CPP as Class 3. The appellant submitted that the respondent’s report of her symptomology that she is slow typing documents and is indecisive are inconsistent with her performing volunteer work, her being able to drive and her being able to sell her home.
The appellant submitted that the Medical Assessor based his assessment of the respondent’s impairment in employability on an incorrect history relating to the respondent’s capacity for work. The appellant submitted that the circumstances relating to the respondent’s resignation from her employment “were causative of her downgrading capacity in June 2021”. The appellant submitted that the Medical Assessor ought to have excluded any impairment of the respondent with respect to employability that related to the respondent’s resignation.
Paraphrasing the respondent’s submissions, again to provide a summary of them, they are that the history the Medical Assessor obtained with respect to the onset of her injury and the Medical Assessor’s finding with respect to the causation of her injury was that her injury was due to isolation, bullying and harassment that she experienced in her workplace. The respondent noted that the Medical Assessor identified that she was being treated for her psychological injury at the time she received correspondence relating to her resignation. The respondent submitted to the effect that the Medical Assessor correctly assessed the degree of her permanent impairment resulting from the referred injury.
The respondent’s submission with respect to the appellant’s submissions relating to self-care and personal hygiene are essentially that they are without merit and based on assumption.
The respondent’s submission with respect to the appellant’s submissions relating to social and recreational activities are that the evidence to which the appellant referred lacks relevance to the Medical Assessor’s assessment of her impairment in social and recreational activities. The respondent further submitted that the Medical Assessor obtained a detailed history. The respondent submitted that the appellant misunderstands the role of a Medical Assessor which is to examine her in a clinical context based on the material forwarded. It is to be inferred from this submission of the respondent that she contends the Medical Assessor has correctly done that in her case.
With respect to travel the respondent submitted that the appellant’s submissions amount to cavilling with the Medical Assessor’s allocation of a particular class “purely on a subjective acceptance of its ideas as to normal functioning in the community and normal variation of the general population”. The respondent submitted that the appellant’s opinion is irrelevant.
With respect to the Medical Assessor’s rating of her impairment in social functioning the respondent submitted that the appellant appeared to be contending that the cause of the dysfunction in her family life is her daughter’s behaviour rather than her psychological condition. The respondent submitted that no evidence supports that contention. The respondent submitted that the Medical Assessor has recorded in the MAC a history of familial dysfunction. The respondent submitted that there is no evidence to support the appellant’s submission that tension and conflict between her and her children do not result from her psychological injury.
With respect to the Medical Assessor’s assessment of her impairment in CPP the respondent submitted that the allocation of the class rating was a matter for the Medical Assessor.
With respect to the Medical Assessor’s rating of her impairment in employability the respondent submitted that there is no suggestion that the Medical Assessor considered her resignation as being relevant to his rating of her impairment in employability.
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’s review of the Medical Assessor’s reasons to establish whether they contain error or whether the Medical Assessor’s assessment is based on incorrect criteria is not to be done with an eye fine-tuned for error.[1]
[1] Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320 at [73].
Incorrect criteria
The Appeal Panel rejects the appellant’s submissions to the effect that the Medical Assessor made his assessment on the basis of incorrect criteria. It is obvious from the MAC that the Medical Assessor assessed the respondent’s permanent impairment by reference to the criteria contained in Chapter 11 of the Guidelines. The Guidelines were issued in accordance with s 376(1) of the 1998 Act. Section 322(1) required the Medical Assessor to make his assessment in accordance with those Guidelines. Accordingly, the Medical Assessor made his assessment based on the correct criteria.
The respondent’s resignation
It is not part of the respondent’s case that the circumstances relating to her resignation from her employment with the appellant was causative of her psychological injury. That is apparent from, firstly, the details of the claim the respondent made against the appellant for compensation for permanent impairment, which relied on the report of Dr Smith dated
17 November 2022, secondly, the description of injury she provided in the ARD, and, thirdly, the notation recorded in the Certificate of Determination issued on 12 April 2024. There is no concession from the respondent that is recorded in the Certificate of Determination, or elsewhere, that she suffered a subsequent psychological injury due to the circumstances relating to her resignation from her employment with the appellant. The appellant did not raise that as an issue in dispute between the parties that required determination by Commission, and consequently there is no determination or finding by the Commission or agreement between the parties that the respondent suffered a second injury from the injury that the Commission referred to the Medical Assessor.The Medical Assessor was required to assess the degree of the respondent’s permanent impairment from the referred injury, which was the injury deemed to have happened on
2 December 2022, and as described in Dr Smith’s report and the ARD, and he did that.Further, the Appeal Panel considers it also apparent from the MAC, when read as a whole, that the respondent’s psychiatric injury was a consequence of the bullying and harassment to which the respondent was subjected by her co-worker. The Medical Assessor recorded that commenced in February 2020. The Medical Assessor concluded that this caused the respondent to suffer a “primary psychological injury” which the Medical Assessor said “had not remitted at any time from the date of onset to this assessment”. The Appeal Panel considers that it cannot be inferred from the Medical Assessor’s use of the term “primary psychological injury” that he considered the respondent had suffered a separate psychological injury as a consequence of other factors, namely the circumstances relating to the respondent’s resignation from her employment. This is because, firstly the Medical Assessor noted that the circumstances relating to the respondent’s resignation from her employment commenced whilst she was psychologically ill and not at work and whilst she was suffering from nihilistic depressive ruminations of hopelessness and worthlessness. It is apparent from the history the Medical Assessor detailed that he considered that the respondent’s resignation from her employment was a consequence of her injury and not a factor that resulted in her suffering a second injury. Secondly, “primary psychologically injury”, is a term defined in s 65A(5) of the 1987 Act to be a psychological injury that is not an injury arising as a consequence of or secondary to a physical injury. There is no suggestion in this case the respondent has a physical injury.
The Appeal Panel, which is an expert panel that includes two psychiatrists, considers that the Medical Assessor’s analysis in arriving at his conclusion that the respondent suffered a primary psychological injury from the bullying and harassment to which she was subject by her co-worker is correct. The Appeal Panel considers that the respondent has only one psychiatric illness and that this was caused by the bullying and harassment to which she was subject. The respondent was significantly impaired from this illness at the time the circumstances relating to her resignation from her employment transpired. As the Medical Assessor found, she was suffering from nihilistic depressive ruminations of hopelessness and worthlessness. She was being treated for her illness. Shortly prior to the circumstances relating to the respondent’s resignation from her employment commencing, Mr Crawford, an employee of the appellant, had called the respondent into his office and remarked that she was not fit to be working. That is a consequence of the respondent feeling suicidal and breaking into tears whilst at work. In the Appeal Panel’s view the circumstances relating to the respondent’s resignation from her employment did not in any significant way add to her impairment and, indeed, her resignation was an effect of the psychological injury she was suffering as a consequence of her employment, that psychological injury being the injury that was referred to the Medical Assessor to assess.
The Medical Assessor was correct therefore to attribute the impairment he assessed the respondent to have from her psychiatric illness to that injury and, indeed, had he excluded any part of that on the basis it was due to a resignation then he would have been in error, contrary to what the appellant has submitted.
PIRS categories (other than social functioning)
It is obvious from the MAC that the Medical Assessor had regard to the voluminous documentary material that was provided to him with the referral, which comprised nearly 1300 pages. More than half of those pages comprised documents attached to Applications to Admit Late Documents the appellant filed with the Commission, in which there was a lot of repeat of material including pages and pages of bank statements. The appellant made no submissions in its Applications to Admit Late Documents how those bank statements would assist the Medical Assessor in his task of assessing the degree of the respondent’s permanent impairment, other than to say that it “will assist with the assessment of the worker’s permanent impairment with respect to the PIRS category”. The appellant did not identify any specific transaction or page of those voluminous statements that might be germane to the Medical Assessor’s task.
A legal practitioner has an obligation to consider carefully and to identify the evidence which is necessary to put before a court to allow issues to be determined.[2] That obligation would extend to an assessment of a medical dispute. The Appeal Panel questions whether the appellant’s lawyer by filing with the Commission all the documents that were attached to the Applications to Admit Late Documents has met this obligation.
[2] Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156 at [67]; SDW v Church of Jesus Christ [2008] NSWSC 1249 at [35]-[36]; Bevan v Bingham [2023] NSWSC 19 at [7]-[8].
It is apparent from the MAC that the Medical Assessor has had regard to all relevant evidence relating to the respondent’s impairment from her injury. It is apparent because the Medical Assessor extracted in the MAC the relevant parts of the evidence, including parts of the respondent’s statements, parts of the reports of the qualified psychiatrists, and parts of the reports and records of the clinicians who have treated the respondent including the reports and records of Ms Bonner.
In the Appeal Panel’s view the appellant’s submissions relating to the Medical Assessor’s assessment of the respondent’s impairment in all PIRS categories, other than social functioning, merely cavil with the Medical Assessor’s clinical judgment with respect to the matters he considered are relevant to the respondent’s clinical history by which he assessed the respondent’s impairment.[3] In the Appeal Panel’s view it is apparent from the MAC that the Medical Assessor composed the clinical history relating to the respondent against the background of the relevant information within documents before him. It is apparent that he questioned and clarified with the respondent some of the matters in that material, including what she had said in her statement and what had been reported or recorded by some of her treating clinicians. In the Appeal Panel’s view, what the Medical Assessor did not include from that material in the history he detailed in the MAC, he considered was not of relevance to his assessment of the respondent’s impairment.
[3] Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 at [59].
The Appeal Panel discerns no error in the medical history the Medical Assessor obtained relating to the respondent in the several PIRS categories.
The Appeal Panel considers that there is no error in the Medical Assessor’s reasoning for his assessment of the respondent’s impairment in all PIRS categories, other than social functioning.
Social functioning
The Appeal Panel considers that the Medical Assessor’s rating of the respondent’s impairment in social functioning involves error.
The examples for a Class 2 and Class 3 impairment provided in Table 11.4 of the Guidelines for social functioning are:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
The Appeal Panel does not accept the appellant’s submission to the effect that because the respondent’s daughter may have played a part in the breakdown of the respondent’s relationship with her daughter, that breakdown was not the consequence of the respondent’s psychiatric injury and consequently ought not to be considered when assessing the respondent’s impairment in social functioning. It is apparent from the PIRS rating form that the symptoms the respondent experiences from her psychiatric illness were a factor in the breakdown of her relationship with her daughter. Those symptoms include the respondent lacking energy and feeling shame and guilt from the comments her daughter made to her. The evidence in the form of Ms Bonner’s notes, Ms Bonner being the respondent’s treating psychologist, reveal that in December 2023 the respondent’s daughter might be taking advantage of her. In early 2024, it was noted that “all was going well” staying with her daughter and that it was because the appellant “miss(ed) a place of her own she was looking she was looking rather than due to any strain”.
Whilst the relationship between the respondent and her daughter is strained, there is no evidence, however, to support the history the Medical Assessor set out that the respondent’s relations with her other family are also strained. Indeed, the evidence in the form of the records of Ms Bonner indicate that she maintains good relations with her son and with her sister and brother-in-law, such that they invited her to holiday with them in very late 2023. Ms Bonner notes how her family were supporting her in her case, and that she spent a “good” Christmas in 2023 with her family. In March 2023, the family conflict was described as “between her kids” rather than with her, although she “gets anxious at the thought of conflict”. In April 2024 family members helped her move, and soon after, her children were visiting for Mother’s Day, which she was looking forward to. The Medical Assessor did not detail any instance or occurrence between the respondent and her other family that suggests that is wrong.
The situation is then that the respondent is isolated in terms of her friends, and noted to have moved into a home where no one else had moved in the street, and that she experiences some strain in relationship with her daughter, the latter in part being a consequence of her psychiatric injury, but otherwise maintains good relationships with her other family. That is not a moderate impairment, but rather a mild impairment and consequently, in the Appeal Panel’s view the Medical Assessor’s exercise of his clinical judgment has miscarried by rating the respondent’s impairment as Class 3. It ought to have been rated as Class 2.
Correction of error
Because the Medical Assessor made an error with respect to his assessment of the respondent’s impairment in social functioning, the Appeal Panel must correct that error and does so by rating the respondent’s impairment in social functioning as Class 2. The consequence of that is the medium class of her scores reduces to 2 and the aggregate score reduces to 14, which converts to a permanent impairment of 7% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
2 October 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: | W1936/24 |
Applicant: | Marie Wilson |
Respondent: | Wingecarribee Shire Council |
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 | 2/12/2022 | Chapter 11 | Chapters 1 and 2 | 7% | - | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
6
0