Decision examines medical panel's approach to worker credibility assessment
The Supreme Court of New South Wales recently dealt with a workers' compensation case where a worker challenged a medical appeal panel's decision to significantly reduce his psychological injury impairment rating without conducting a fresh clinical examination.
A worker's challenge to his psychological injury assessment highlighted important questions about medical reviews and procedural fairness.
The case examined whether medical appeal panels could properly assess psychological impairment and challenge a worker's credibility based solely on documentary evidence, without conducting their own clinical examination.
According to records, the worker had served at a local council for 14 years until November 2020, when he had to leave due to deteriorating psychological conditions.
The council's insurer accepted liability under the Workers Compensation Act 1987 (NSW), but disputed the degree of permanent impairment that would determine his lump sum compensation.
A medical assessor first evaluated the worker's permanent impairment at 22% in April 2023. The employer then introduced additional evidence, including surveillance reports and bank statements, leading to a second assessment that reduced the rating to 19% in August 2023.
During both assessments, conducted via audiovisual link, the medical assessor examined the worker's self-reported condition alongside medical records. The assessor noted: "[The worker] was tremulous during the interview and at times clearly anxious... His affect was only mildly flattened... There was no evidence of formal thought disorder, hallucinations or delusions."
The employer appealed to a medical appeal panel, which further reduced the impairment rating to 8% without conducting its own examination of the worker. The panel relied heavily on documentary evidence to draw conclusions about the worker's daily activities and credibility.
The medical assessor had previously addressed surveillance evidence in his assessment, stating: "The surveillance team undertook a total of 41 hours of surveillance, but managed to obtain a total of 9 minutes footage of [the worker]... None of this constitutes activity that would change my previous assessment of his level of impairment."
The panel's approach differed significantly from the medical assessor's clinical evaluation. While the assessor had conducted detailed interviews and clinical observations, the panel focused primarily on analysing bank records and surveillance footage.
The court examined whether the panel's documentary review approach satisfied procedural fairness requirements. The judgment explained: "The nature of the challenges raised by [the employer] in this case did necessitate the taking of that step [conducting an examination]."
The court emphasised the importance of clinical assessment when evaluating psychological injuries: "To accept challenges made by [the employer] to [the worker's] reliability and veracity, the Appeal Panel was required to undertake its own consultation to afford [the worker] procedural fairness."
The decision concluded by stating: "The medical questions involved in the matter, regarding the psychological assessment of [the worker], required that a clinical examination take place."
The court ultimately set aside the appeal panel's decision and directed the matter to be referred to a new panel, unless the parties reached an agreement.
