STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

Workers Compensation Nominal Insurer (iCare), K IBY & E.I WALLACE t/as FOXXY STUDIOS

1. On 12 March 2025, Shantelle Meehan (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

12 February 2025. 2. 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. 3. 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. 4. 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. 5. 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).

1. 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.
2. 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, for reasons which will become apparent below.

1. 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.

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment in the psychiatric impairment rating scale (PIRS), in the category of Employability.
3. The respondent in reply submits that no errors were made.

1. 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.
2. 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.
3. The appellant was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological injury on a deemed date of injury of 8 May 2023.
4. The Medical Assessor obtained a history of the circumstances leading to the injury as follows:

"Ms Meehan commenced work as a hairdresser at Foxxy Hair and Beauty Studio on 2 July 2022. Ms Meehan describes several incidents of sexual assault on her in the workplace by her employer between 5 October 2022 and 11 January 2023. Following the incident on 11 January Ms Meehan reported the incidents to the Police and consulted with her GP, Dr Redmayne. Subsequently Ms Meehan received upsetting communications from her employer and associates on social media.

Ms Meehan started work as a hairdresser at another salon later in January 2023. She continued to have psychological symptoms and recalls feeling generally "unstable" in her mental health. She had difficulties with hypervigilance for threat, a general increase level of anxiety, disturbed sleep and changeability in her mood. Due to her ongoing symptoms, she stopped working at the new salon after two or three months. Ms Meehan continued with her antidepressant medication and re-established a therapeutic relationship with her previous psychologist Margarita Rosa Fierro Hernandez."

1. After setting out details of Ms Meehan's treatment regime, the Medical Assessor then noted present symptoms as follows:

"Ms Meehan describes a persistently increased level of psychological and physiological anxiety. She describes a persistent fear of coming into contact with her former employer and she avoids a number of locations to decrease the likelihood of this. She describes her mood as variable though she tries 'to keep positive'. She has had no suicidal thoughts recently though has had some several months ago. Her energy levels are generally low as is her motivation. At times she is irritable with family or friends which makes her feel guilty. She can get some pleasure from time with her children though she tends to avoid going to public places with them due to her anxiety.

Ms Meehan describes daily intrusive unpleasant memories, images, and feelings associated with the traumatic events she experienced in her workplace. She experiences an increase in anxiety when she thinks about these matters which can be precipitated by any reminder of the workplace or her employer. She said that recently her former employer contacted her current employer, Coles Express, giving her employer misinformation about her. This has led to Ms Meehan being told that she should move on from her current employment. This has been very upsetting and has brought back to mind more intensely the incidents at her former workplace.

Ms Meehan describes a general hypervigilance for threat. As a result, she will try to go to locations when she knows they will be quiet. Ms Meehan describes a general reduction in her interest and participation in significant activities such as time with her friends doing recreational activities. Ms Meehan describes a variable eating pattern and she has gained significant weight over the last year due to reduced levels of activity. She describes spending much of her time in bed, though she will watch television and spend time with her children when they visit her. She finds her concentration to be reduced. Ms Meehan has persistent middle insomnia and occasional trauma related dreams."

1. The Medical Assessor then set out details of previous injuries and conditions, her work history and general health before setting out details of the impact of her injury on her social activities and activities of daily living (ADL's) as follows:

"Ms Meehan lives on her own separate from her husband and four children. She describes spending much of her time at home and lacking a daily routine. She will sometimes spend time during the day in bed. She spends time watching television. She showers daily, though sometimes after prompting from her husband when they are in contact. She shops locally at a quiet supermarket and prepares her own food, though sometimes gets takeaway food. She was going to a gym three times per week until funding ceased three months ago. She goes to a masseuse for a massage every second week. Ms Meehan has regular contact with her children who visit and she may play with them at her home or in close proximity and occasionally go to a park or the beach. Ms Meehan maintains contact with some friends and recently went on a group motorcycle run with some girlfriends. She is working one night shift per week at a Coles Express store."

1. Findings on examination were reported as follows:

"Ms Meehan joined the telehealth interview from her home. She appeared neat and tidy in her presentation and was wearing makeup. There were blisters on her lips which she indicated were "cold sores" secondary to recent stresses. There were no abnormal movements or behaviours and she communicated effectively with normal speech.

Ms Meehan had a variable affect depending on the material under discussion, including tears when describing the changes and losses in her life. She also demonstrated some humour at times and a determination to recover from her current and recent difficulties. She described her general mood state as "putting on a brave face". Objectively, her mood was moderately labile with increased anxiety and sadness. She denied current or recent suicidal ideation. Her thought form was normal. There were no abnormal beliefs in the form of delusions and no abnormal perceptions. Ms Meehan described frustration at her current situation and the desire to recover. She was fully alert and orientated at interview and appeared cognitively normal, though I did not carry out a formal cognitive assessment."

1. The Medical Assessor then summarised the injuries and diagnoses as follows:

"Ms Meehan was working as a hairdresser at a salon when she was sexually assaulted on several occasions by her employer. She developed psychological symptoms; consulted her GP, and made a complaint to the Police. Ms Meehan's psychological symptoms persisted despite treatment from her GP and a clinical psychologist. She continues to have psychological symptoms consistent with a diagnosis of posttraumatic stress disorder (PTSD) following the DSM 5TR system. Ms Meehan has a pre-existing psychological condition, Cluster B personality disorder, which contributes to her level of impairment."

1. The Medical Assessor assessed 15% WPI from which he deducted 1% for the pre-existing condition, a total of 14% WPI.
2. He assessed a Class 2 rating for employability.
3. He then set out a summary of the material he had before him.
4. Relevant to the issues in dispute, he said:

"Independent Medical Examination, Dr Revanthi Injeti, 13 November 2023

Dr Injeti describes the relevant background including the events in the workplace. The development of symptoms is described and the current impact on Ms Meehan's life. At the time of assessment Ms Meehan was working 3 hours per week in a restaurant with a plan to increase this. Dr Injeti carries out a mental state examination and makes a diagnosis of post-traumatic stress disorder.

Permanent Impairment Assessment Report Dr Ben Teoh 30 March 2024

Dr Teoh describes the workplace incidents and relevant background. He notes a past history of mental health problems and that Ms Meehan was taking antidepressant/antianxiety medication at the time of the workplace incidents and under the care of a psychologist.

Dr Teoh describes current symptoms and impairments. He carries out a mental state examination. Dr Teoh makes a diagnosis of Chronic Adjustment Disorder with Depressed Mood. A whole person impairment assessment using the Psychiatric Impairment Rating Scale (PIRS) is carried out calculating a score of 15% with no adjustment for a pre-existing impairment or the effects of treatment**.**

In my opinion the diagnosis of posttraumatic stress disorder better categorises Ms Meehan's mental injury. I disagree with Dr Teoh with respect to the presence of a pre-existing injury. There is convincing evidence in the medical notes of Dr Redmayne of a pre-existing injury and this has been formally assessed during court processes prior to the workplace injury. There should be a deduction in the assessment of impairment due to this pre-existing condition.

Permanent Impairment Assessment Report Dr Revanthi Injeti 3 October 2024

Dr Injeti summarises past health history and current symptoms and impact on function. Dr Injeti carries out a whole person impairment assessment using the PIRS. A score of 11% is calculated from which 1/10 is deducted due to a pre-existing condition.

I differ with Dr Injeti, and Dr Teoh, in assessment of impairment..."

(a) The appellant ceased employment with the First Respondent. She provides evidence of her attempts to return work in alternative suitable employment at paragraph 16 of her statement:

"Following this incident, I started working in another smaller salon called Teaymere Hair and Beauty. I worked there one day a week. The owner received messages from Emily about me and I felt extremely distressed emotionally and freaked out from it, as if I couldn't escape her or this entire situation. I felt unsafe and stopped working at this new salon. I have not returned to any form of hairdressing since. I have attempted to work in different jobs but have only been able to work for a couple of weeks before it becomes too much for me. I do not cope well with large groups of people and I found that symptoms would be triggered at work."

(b) This would support a finding of a Class 4 for Employability. At paragraph 21 of her statement, the appellant continues:

"I have tried working in jobs which weren't hairdressing, working less hours and in a less stressful environment. I have found that I cannot work anywhere new without suffering trigger symptoms and intrusive memories of the harassment I endured."

(c) This is consistent with the evidence recorded by the Medical Assessor on page 3 of the MAC: "She last worked as a hairdresser in 2023. Over the last year or so Ms Meehan has been supported by a rehabilitation service to obtain work and has interviewed or trialled for several occupations. She has been working nightshift 5 hours per week as an assistant at a Coles Express store for the last three months."

(d) The Medical Assessor in assessing a Class 2 for Employability is inconsistent with the evidence before him and is a demonstrable error. The Medical Assessor omits the totality of his observations detailed in the MAC (and summarised above) regarding the appellant's employment following the subject injury. The Medical Assessor has not outlined his reasoning process for assessing a Class 2 when the evidence before him supports a Class 4 finding. It is clear this categorisation was glaringly improbable and unsupported by the evidence.

(e) The Medical Assessor records the appellant is presently working one (night) shift of five hours per week at Coles Express. The Medical Assessor opines the appellant would be able to work full-time with comparable skill and intellect, this finding is not supported by any evidence before him, and he does not provide a reason for this opinion. It is respectfully submitted the appellant's present employment at Coles Express would not require the same level of skill or intellect as her employment as a hairdresser. This is a demonstrable error which has resulted in an erroneous assessment.

(f) The evidence recorded by the Medical Assessor is that the appellant has attempted to return to work in various types of employment including working less hours and in a less stressful environment. The appellant's evidence is she experiences intrusive thoughts and triggering symptoms while working which ultimately lead to her ceasing employment after a short period of time. This would support a finding of a Class 4.

(g) The appellant submits based on the totality of the evidence, the best fit category is a Class 4. The appellant is presently working one day a week, less than 20 hours per fortnight. The Medical Assessor reports she is optimistic of being able to increase her hours however consideration to her employment history following the injury should be taken into account. Namely, her unsuccessful attempts to return and maintain alternative employment due to aggravation of psychological symptoms.

(h) The error is more than a difference on opinion on a subject where reasonable minds may differ.

(a) The history provided by the Medical Assessor, who the respondent submits is consistent with a Class 2 assessment.

(b) The appellant's nominated treating doctor has consistently certified her fit to work 25 hours per week in suitable employment from 24 February 2024 to date.

(c) The appellant's general practitioner, Dr William Redmayne, approved the vocational options of Delivery Driver, Postal Delivery/Courier and Dump Truck Driver (Apprenticeship).

(d) Dr Ben Teoh, qualified by the appellant, took a history that the appellant 'had been certified fit to work 24 hours a week' in his report on 30 March 2024. He noted 'She started working in a different industry, hospitality, three weeks ago. She has tried to work on and off in customer service'.

(e) Dr Revanthi Injeti, qualified by the respondent took the following history in her report dated 3 October 2024: "Able to work full time. Duties and performance are consistent with the injured workers education and training. Able to drive, up to 24 hours per week. Feels safer when driving. The person is able to cope with the normal demands of the job."

(f) The above evidence supports that the Appellant has an ability to work more than 20 hours in suitable employment and has had this ability since at least February 2024.

(g) A Class 3 or Class 4 assessment for Employability are not appropriate as the appellant's capacity is inconsistent with the descriptors outlined in the Guidelines. As such, it is submitted that the Medical Assessor has correctly assessed Class 2 for Employability.

(h) The appellant refers to her statement where she provides evidence of her return to work in alternative suitable employment. The appellant submits that this would support a finding of Class 4 for Employability. Clause 1.6 of the Guidelines which provides: Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant's relevant medical history and all available relevant medical information."

(i) The respondent submits that there is a substantial body of evidence to support the Medical Assessor's findings in relation to Employability.

1. To begin with, we note that the examples provided by the PIRS are examples only per clause 11.12 of the Guidelines and "provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected" (Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633).
2. The Medical Assessor assessed a Class 2 rating and said:

"Ms Meehan has been working between three and five hours at an express supermarket nightshift for the last few months. She feels that she has been doing this work well and has been keen to increase her hours. She has participated in some courses with the aim of returning to employment over the last year and is exploring other industries. She is currently certified as having capacity for some work on 25 hours per week by her GP, and this has been the case for a number of months. I found her to have a mild impairment in this area as she is able to work full-time but in a different environment from that of her preinjury job though the duties require comparable skill and intellect."

"Mild impairment: Able to work full time but in a different environment from that of the preinjury 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)"

"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)."

1. For a Class 4 it reads: "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."
2. Although not bound by the opinions of other doctors, we note that Dr Teoh assessed a Class 3 and Dr Injeti a Class 1.
3. Having said that, we agree that a Class 3 rating is consistent with the evidence for reasons that follow.
4. In describing her present symptoms, the Medical Assessor said:

"Ms Meehan describes a persistently increased level of psychological and physiological anxiety. She describes a persistent fear of coming into contact with her former employer and she avoids a number of locations to decrease the likelihood of this. She describes her mood as variable though she tries "to keep positive"... Her energy levels are generally low as is her motivation...

Ms Meehan describes daily intrusive unpleasant memories, images, and feelings associated with the traumatic events she experienced in her workplace. She experiences an increase in anxiety when she thinks about these matters which can be precipitated by any reminder of the workplace or her employer. She said that recently her former employer contacted her current employer, Coles Express, giving her employer misinformation about her. This has led to Ms Meehan being told that she should move on from her current employment. This has been very upsetting and has brought back to mind more intensely the incidents at her former workplace.

Ms Meehan describes a general hypervigilance for threat..."

1. These symptoms in our view are significant in the context of Ms Meehan's ability "to work full time but in a different environment from that of the pre-injury job."
2. We note that she is working one night shift per week at a Coles Express store.
3. The Medical Assessor noted that "She is motivated to increase the number of hours she works" but as yet does not appear to have achieved this.
4. However, this would suggest that she herself considers that even with her current symptoms, she would be able to do more work.
5. On the history given to the Medical Assessor we cannot agree that a Class 4 rating is warranted on the whole of the evidence.
6. We agree that the circumstances of her former employer contacting her current employer would indeed be upsetting and likely to trigger anxiety and concern about her ability to remain in employment.
7. The Medical Assessor also noted that:

"She has participated in some courses with the aim of returning to employment over the last year and is exploring other industries. She is currently certified as having capacity for some work on 25 hours per week by her GP, and this has been the case for a number of months."

1. The nature of those courses or "other industries" is not clear, but again suggests that the appellant is actively seeking to work more than she does currently.
2. And it is true that her GP has assessed her with a capacity for 25 hours work per week.
3. We also note that Dr Injeti obtained a history that:

"She now has capacity to work, and she feels she's able to work. She reports that she is able to work as a delivery driver where she is by herself."

"Able to work full-time. Able to drive, up to 24 hours per week. Feels safer when driving. The person is able to cope with the normal demands of the job."

1. Taking into account the whole of the evidence, we agree that a Class 3 rating is consistent with this evidence.
2. This then means that the ratings are:

(a) Self-care and personal hygiene - Class 2;

(b) Social and recreational activities - Class 3;

(c) Travel - Class 2;

(d) Social functioning - Class 3;

(e) Concentration, persistence and pace - Class 3, and

(f) Employability - Class 3.

1. The aggregate of class ratings is 16, median 3 for a 17% WPI.
2. The Medical Assessor's deduction for the pre-existing condition is not the subject of appeal.
3. For these reasons, the Appeal Panel has determined that the MAC issued on

12 February 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

Workers Compensation Nominal Insurer (iCare), K IBY & E.I WALLACE t/as FOXXY STUDIOS

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Alan Doris and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Chapter, page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

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