AC Stone Group Pty Ltd v Chuang

DETERMINATION OF APPEAL PANEL
CITATION:	AC Stone Group Pty Ltd v Chuang [2024] NSWPICMP 461
APPELLANT:	AC Stone Group Pty Ltd
RESPONDENT:	Ying-Chieh (Jessica) Chuang
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	15 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; appeal in respect of each category of the psychiatric impairment rating scale; need to ascribe conduct to the correct scale; worker continued to study and commenced new employment immediately after injury; Ballas v Department of Education (State of NSW) and Tasevski v Westpac Banking Corporation considered; Held – errors found with respect to concentration, persistence and pace; errors with respect to employability; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 March 2024 AC Stone Group Pty Ltd (AC Stone) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Yu-Tang Shen, who issued a Medical Assessment Certificate (MAC) on 4 March 2024.
AC Stone relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out - being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Chuang suffered a psychological injury in the course of her employment with AC Stone which is deemed to have occurred on 13 March 2021. The injury was caused by sexual assault and sexual harassment by staff members of the company, who have been prosecuted.
The Medical Assessor saw Ms Chuang with the assistance of an interpreter. He assessed 15% whole person impairment (WPI) using the Psychiatric Impairment Rating Scale (PIRS) in the Guidelines. He assessed her in class 2 for self care and personal hygiene, travel and concentration, persistence and pace and in class 3 for social and recreational activities, social functioning and employability. The Medical Assessor did not make any allowance for the effects of treatment nor did he make a deduction under s 323 of the 1998 Act.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Ms Chuang to undergo a further medical examination because there is sufficient medical information in the file to determine the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination. We have summarised the evidence relevant to our decision.
The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, AC Stone submitted that the Medical Assessor applied incorrect criteria in the assessments he made under the PIRS. With respect to self care and personal hygiene, AC Stone said that the Medical Assessor did not record any deficit in Ms Chuang’s appearance. AC Stone noted that the Medical Assessor recorded that before the injury Ms Chuang cooked every day after work and performed laundry every three days, but now she prepares simple meals and does laundry on average every three weeks. It submitted that the evidence did not support the contention that Ms Chuang was working every day, and that she had only ever worked part time. It said that Ms Chuang remains engaged in employment, and study, so that the suggestion of self-neglect is dubious and she should have been assessed in class 1.
AC Stone said that the Medical Assessor erred in his assessment of social and recreational activities when he assessed Ms Chuang in class 3 on the basis that she is mainly isolated at home. It said that she continued to engage in employment and study, which requires some degree of social interaction. AC Stone said that assessment in class 2 or even class 1 was more appropriate.
With respect to travel, AC Stone said that the Medical Assessor erred in assessing Ms Chuang in class 2 because she travelled from her home at Ingleburn to Surry Hills to work and had been doing so for two years.
AC Stone said that the Medical Assessor was in error in assessing class 3 for social functioning because she maintained contact with her sisters, and had friends who she did not see because they live overseas. It said there was no evidence of her relationships being strained. It noted that on 10 March 2021, Ms Chuang attended her psychologist with her supportive boyfriend.
With respect to concentration, persistence and pace, AC Stone said that the study which Ms Chuang undertook was not basic retraining. It noted that the Medical Assessor recorded that she was grossly cognitively intact and able to sustain concentration for the duration of his assessment.
AC Stone said that the Medical Assessor had an incorrect history about the extent of Ms Chuang’s work before the injury and said that she had consistently worked the 20 hours that she was permitted to work under her visa.
AC Stone also submitted that the Medical Assessor made a demonstrable error in failing to disclose the path of his reasoning for assessment under the PIRS and failed to take relevant information in the file into account. In particular, AC Stone referred to material about Ms Chuang’s visa status.
In reply and in submissions prepared by Mr Robison of counsel, Ms Chuang submitted that AC Stone merely sought to cavil with the Medical Assessor’s assessment and urged its own assessment in preference to the Medical Assessor’s clinical judgement. Ms Chuang submitted that none of the submissions made by AC Stone engaged with the statutory requirement for a medical appeal. Ms Chuang said that the Medical Assessor sought to “mix and match” across the tables. It said that Ms Chuang’s visa requirements were irrelevant and only apply from March 2023, that the evidence in the file suggested full time earnings before the injury.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The Medical Assessor set out a history of the injury and Ms Chuang’s present symptoms, including disruption to her sleeping and eating patterns. He said:
“She said she has intrusive recollections of the subject intrusive, which occurs frequently and causes her distress. She said she also has nightmares of the subject incidents, and the nightmares occur every week, and she finds them distressing. She avoids thinking about the subject incidents. She blames her colleagues for what happened. She feels she is ruined and she has constant feelings of negative emotions including fear, anger and shame. She has diminished interest in her previous activities, and she feels more detached from others. She struggles to experience positive emotions. She has been more easily irritable, but she internalises it until her head starts to ache. She has been more hypervigilant, particularly around males, easily startled to an exaggerated degree when she walks outside, and she has poor concentration and sleep. She denied any psychotic symptoms.”
The Medical Assessor described Ms Chuang’s social activities and activities of daily living in detail and drew on that material when applying the PIRS. The Medical Assessor diagnosed major depressive disorder and post-traumatic stress disorder. He summarised factual and medical evidence in the file and explained that his opinion differed from that of Dr Rastogi. We are satisfied that the Medical Assessor disclosed the path of his reasoning.
For the reasons set out below, we are satisfied that the Medical Assessor made demonstrable errors in respect of his assessments of concentration, persistence and pace and employability. Ms Chuang submitted that a demonstrable error was as described in Merza v Registrar of the Workers Compensation Commission[3] (Merza) being one that is “readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment”.
[3] [2006] NSWSC 939.
In Vannini v Worldwide Demolitions Pty Ltd[4] (Vannini) Gleeson JA noted that Hoeben J’s comments in Merza were made in the context of the state of satisfaction required under
s 327(4) to refer a matter to an Appeal Panel.[5] His Honour said:[6]
“…, s 327(3)(d) requires that such an error be ‘contained’ in the certificate; that is, the error must be apparent in the certificate of the approved medical specialist. Importantly however, there is no express limitation on the material to which the Panel may have regard when assessing whether the certificate ‘contains’ a demonstrable error.”
And:
“That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales:
‘The concept of “demonstrable error” is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error “on the face of the record” for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word “demonstrable” does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error’.”
[4] [2018] NSWCA 324.
[5] At [82].
[6] At [78].
The demonstrable errors that the Medical Assessor made are apparent when the MAC is read in light of the evidence in the file.
A Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [7] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[7] At [36].
That principle is relevant to the consideration of much of AC Stone’s submissions.

Assessment under the PIRS

In Ballas v Department of Education (State of NSW)[8] (Ballas) Bell P and Payne JA explained the operation of the Guidelines and highlighted the need to ascribe conduct to the correct table. Their Honours said:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.
In the present case, it was plainly ‘arguable’, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ … This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.”
[8] [2020] NSWCA 86 at [94-95].
In Tasevski v Westpac Banking Corporation[9] (Tasevski) Schmidt AJ referred to Ballas and discussed the need for conduct to be assigned to the appropriate class of the PIRS. Schmidt AJ said:[10]
[9] [2024] NSWSC 401.
[10] At [27]-[36].
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.
…
It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor’s conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”
Her Honour’s comments are relevant here because AC Stone has sought to rely on the same conduct across a number of the tables of the PIRS, discussed in more detail below.
We observe that AC Stone did not rely on medical evidence from a psychiatrist who assessed Ms Chuang under the PIRS. That does not prevent it from submitting that the Medical Assessor was in error in his assessment under any of the tables, though it means that the only point of comparison is Dr Rastogi’s report.

Self care and personal hygiene

The Medical Assessor assessed Ms Chuang in class 2, mild impairment, for the following reasons:
“She said she now showers about every 2-3 days, particularly if she feels hot, whereas prior to the subject injury she would shower every day. She said she uses make-up only when needed such as for the assessment, but she usually doesn’t use make-up nowadays. Prior to the subject injury, she would use make-up every day. She said she usually eats one meal a day, and sometimes she buys meals from outside, otherwise she will cook make simple meals like boiling eggs or cooking noodles. Prior to the subject injury, she said she would cook after work every day, and make three meals a day, including preparing for the meals the following day. She said she occasionally does her laundry, on average about every 3 weeks, whereas prior to the subject injury, she would do her laundry every three days as she would be working every day. She said she does light shopping every 2 weeks, usually limited to simple ingredients, such as eggs, noodles and spices.
As she can still self-care, albeit with a degree of self neglect, she has mild impairment.”

The Medical Assessor noted that Ms Chuang was reasonably groomed and that she wore make up for the assessment. One possible conclusion from that statement is the one AC Stone seeks to draw - that there was no deficit. The statement is equally consistent with a mild impairment and that Ms Chuang made an effort to groom herself in a way she considered appropriate for the examination but may not maintain this every day.
The assessment of self care is not limited to a worker’s appearance and the history the Medical Assessor recorded about food preparation now, compared to pre-injury are relevant.
The submissions AC Stone made about the hours Ms Chuang worked before the injury conflate self care and personal hygiene with other tables of the PIRS and those about the frequency with which she did her laundry are attenuated and are speculative.
When describing Ms Chuang’s symptoms, the Medical Assessor recorded that she feels that she is ruined and experiences fear, anger and shame, the last of which is relevant to her impairment in this category.
Dr Rastogi, who saw Ms Chuang on two occasions at the request of her solicitors, assessed her in class 3 for self care and personal hygiene. Observing that Ms Chuang feels ashamed as a result of the injury, Dr Rastogi noted that Ms Chuang lacks drive and interest in self-care and that she does not want to be attractive.
Those statements are consistent with anticipated consequences of an injury as a result of sexual assault and harassment. Based on the history that the Medical Assessor obtained, his assessment in class 2 - mild impairment - was correct.

Social and recreational activities

The Medical Assessor assessed Ms Chuang in class 3, saying:
“She said she is more afraid of working, and she no longer goes swimming. She mainly spends the day looking at her mobile phone. She said she no longer attends any social activities, such as for New Year, though her sister had brought food for her on that day.
As she is mainly isolated at home, and not engaging in any form of social activities, though not isolated to the extent she never leaves her residence, she has moderate impairment”
In Ballas, the Bell P and Payne JA said:[11]
“The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities.”
[11] At [96] and [100].
AC Stone’s submissions again conflated factors relevant to this Table with those that are not. Ms Chuang’s ability to go to work and to study do not reflect her engagement in social activities or activities that are recreational in nature.
The history in both the MAC and in Dr Rastogi’s report show that Ms Chuang is a socially isolated young woman from Taiwan who does not participate at all in the recreational activities she used to undertake and attends practically no social outings. The reference to New Year highlights the extent of the impairment in the context of activities relevant to her cultural background as Schmidt AJ discussed in Tasevski.
Assessment in class 3 for social and recreational activities was appropriate.

Travel

The travel table measures a worker’s ability to leave home and go to new places. Class 1 is appropriate for someone who “can travel to new environments without supervision” and assessment in class 2 is relevant for a worker who can “travel without a support person, but only in a familiar area”. A worker who “cannot travel away from own residence without support person…” is assessed in class 3.
The Medical Assessor assessed Ms Chuang in class 2 because:
“She doesn’t drive and she said she would drive company every day for her work. [sic] She said she walks and uses public transport. She said sometimes she will miss her bus or train and have to wait for a long time, and she said she has difficulties taking public transport to distant destination as she will be afraid, she will get lost. She said she has some anxiety taking public transport, particularly when there are many other fellow passengers.
As she can still use public transport, albeit with significant anxiety, and limited to the local area, she has mild impairment.”
While AC Stone is correct to point out that Ms Chuang travels from her home in Ingleburn to Surry Hills to work, her social isolation means that is the only travel that she undertakes and it is therefore familiar, if not local. The Medical Assessor noted that Ms Chuang experiences anxiety, especially when public transport is crowded. The Medical Assessor was wrong to say that Ms Chuang only travelled in her local area but that does not vitiate his finding that she has a mild impairment.

Social functioning

AC Stone argued that the Medical Assessor should have assessed Ms Chuang in class 2 for social functioning because there was no evidence of severe strain in her relationships.
In Ballas, the Bell P and Payne JA said:[12]
“Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.”
[12] At [96].
The history that the Medical Assessor took justifies assessment in class 3 for social functioning. Ms Chuang said that she has no partner or children and that she lives with housemates who “simply greet each other with a nod in passing”. Her parents and one of her sisters live overseas as do the only friends with whom she keeps in touch. The history shows that she has lost her entire friendship circle in Sydney and her only ongoing relationship is with her sister who visits her at home and whom she sees monthly.
While Ms Bertolini, the psychologist whom Ms Chuang saw in March 2021, recorded in her notes dated 9 March 2021 and her report dated 10 March 2021 that she attended with a supportive boyfriend, Ms Chuang told the Medical Assessor that she has not had a partner since the injury. It is unclear from that report if the person was a romantic partner or a male friend. The need for an interpreter, and cross-cultural differences in the meaning of certain words complicates this. The consultation took place contemporaneously with the date of injury. Two comments are relevant. First, Ms Chuang has lost contact with her friendship circle, which is more likely to have occurred over time as a result of a chronic impairment, rather than in one blow immediately after the injury. Second, the Medical Assessor is required to assess Ms Chuang on the date of the examination[13] and not on the basis of one comment in a report written three years before.
[13] Guidelines paragraph 1.6.
The Medical Assessor was correct to assess Ms Chuang in class 3 for social functioning.

Concentration, persistence and pace

The Medical Assessor assessed Ms Chuang in class 2, saying:
“She said her concentration has been poor, and she can read up to 2-3 minutes. She said prior to the subject injury, she could focus for up to a few hours. She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.
The claimant was enrolled in a general English course and obtained an upper intermediate level on 18 January 2021 to 20 June 2021. She also enrolled in Certificate IV in Business from 26 July 2021 to 23 January 2022. She enrolled in a Diploma of Business and received a competent mark for 12/12 units from 14 February 2022 to 12 February 2023.
As she has significantly impaired concentration, but was able to complete courses in English and Business, she has mild impairment.”
The Medical Assessor did not set out the length of his examination but it would be expected to take about an hour. He set out his findings on examination:
“She engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail.
She told me she was feeling anxious, irritable and depressed.
She displayed limited emotional reactivity and was predominantly dysthymic, and she became teary at times during the interview.
She spoke articulately and in a logical sequence most of the time, without much prompting.
…
She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.”
The examination provides the Medical Assessor with an opportunity to make his own assessment of a worker’s ability to concentrate. Ms Chuang’s ability to read for two or three minutes is inconsistent with her ability to sustain her concentration for the whole of the assessment, as is her ability to study.
The Medical Assessor noted that Ms Chuang had completed courses in English and business. The examples for class 1 – no impairment - in the PIRS table include being able to pass a TAFE or university course in the normal time frame. The examples for class 2 show that assessment of a mild impairment is appropriate when a worker can undertake a basic retraining course or on a standard course at a slower pace. The material in the file includes the results Ms Chuang has achieved. The Medical Assessor referred to some of that material, noting an:
“Email from Louise Pillon, from the Academic Salisbury College Australia.
The claimant was enrolled in a general English course and obtained an upper intermediate level on 18 January 2021 to 20 June 2021. She also enrolled in Certificate IV in Business and not yet achieved and not yet competent, marked for 10 units from 26 July 2021 to 23 January 2022. She enrolled in a Diploma of Business and received a competent mark for 12/12 units from 14 February 2022 to 12 February 2023”
Dr Rastogi assessed Ms Chuang in class 3 on 3 August 2022. Her assessment was only based on Ms Chuang’s self-reported impairment on this category and she did not comment on her own observations relevant to the assessment of concentration, persistence and pace. Also, Dr Rastogi was not availed of Ms Chuang’s academic record over several years. Dr Rastogi noted that Ms Chuang had a limited command of English and there is no reference to an interpreter.
In her supplementary statement dated 8 February 2024, Ms Chuang said:
“I had so many plans when I came to Australia and although I am still studying, which I’m forced to do to keep my Visa, I have no idea what work I will ultimately do or even where I will live. I have lost interest in my career.
I am currently studying at the Australian College of Applied Business at Parramatta in Leadership And Management and previously I completed a course at Sailsbury College Australia at Burwood in the same area.
I am very slow to complete assignments and I’m essentially doing the bare minimum to get through.”
AC Stone’s Application to Admit Late Documents dated 30 January 2024 contains information to which the Medical Assessor should have had regard in addition to the email to which he referred. It shows that assessment in class 2 was inappropriate and that even though Ms Chuang said that she was slow, she finished her most recent course in the anticipated time.
Ms Chuang enrolled at the Australian College of Applied Business in a Diploma of Leadership and Management commencing on 10 April 2023 and anticipated to be finished by 6 October 2024. The Medical Assessor did not record that Ms Chuang was engaged in study at the time of his examination. That was a matter he should have asked about and commented on.
The record of results for a Diploma of Business showed that Ms Chuang was able to complete and be judged competent in 12 subjects undertaken between 14 February 2022 and 12 February 2023. She was certified as having fulfilled the requirements for the Diploma from Salisbury College on 2 February 2023, a year after she started.
The email from Ms Pillon of Salisbury College dated 15 January 2024 to which the Medical Assessor did refer, sets out that Ms Chuang had achieved Upper Intermediate Level in General English between 18 January 2021 and 20 June 2021, a period which spans the date of injury. She enrolled in Certificate IV in Business and was marked not yet competent for 10 units between 26 July 2021 and 23 January 2022. Ms Pillon confirmed full completion of the Diploma of Business course.
That information is sharply at odds with the history the Medical Assessor recorded. Ms Chuang was marked not yet competent for all 10 units of a course in the second half of 2021, soon after the injury. Since that time, she has completed a TAFE level course in a normal time frame and enrolled in another course.
Those factors, taken with Ms Chuang’s ability to concentrate for the duration of the Medical Assessor’s assessment show that the Medical Assessor’s assessment in class 3 was inappropriate and that Ms Chuang should have been assessed in class 1 for concentration, persistence and pace.

Employability

The Medical Assessor said that Ms Chuang was employed by AC Stone on a full time basis:
“She said prior to the subject injury, she was working at AC stone, as a driver 90% of the time, and accompanied a sales representative, and works 10% of the time as a sales representative, and if needed she would become involved with the sales. She said she would work 5 days a week, 9 hours a day.
She said she works at the office, 1-2 days a week, 7 hours a day, to measure the dimensions of the clothes. She has been in this work for the past 2 years.”
Assessing Ms Chuang in class 3, the Medical Assessor said:
“She said she works at the office, 1-2 days a week, 7 hours a day, to measure the dimensions of the clothes. She has been in this work for the past 2 years.
Her current role is significantly reduced to part-time, and in a less stressful and less complex role, but not to the point she is erratic with her employment attendance, so she has moderate impairment.”
The Medical Assessor set out the history provided by Ms Chuang at the examination. A close, and time consuming, review of the evidence shows that the history she provided was inconsistent with the material in the file, much of it in the Application to Resolve a Dispute (ARD). The hours Ms Chuang worked is within the knowledge of both parties and any issue should have been resolved before the matter was referred to the Medical Assessor. It was not appropriate to require the Medical Assessor to sift through the file, undertake an analysis of pay records and challenge Ms Chuang with the results. However, assessment in class 3 on the basis that Ms Chuang reduced her hours is a demonstrable error.
In her statement dated 22 February 2023, Ms Chuang said that she commenced working for AC Stone on 22 April 2020 and ceased on 13 March 2021.She said:
“I am stressed about my financial situation. I have managed to find another job, but I work at a reduced capacity. I only work 20 hours per week, which is a lot less than my previous job.”
Ms Chuang’s statement should have been more detailed about the hours she worked before and after the injury. Dr Rastogi recorded that she had previously worked more hours on the basis of the history provided.
Ms Chuang began to consult Dr Lim’s practice in May 2021. On 17 June 2021, a psychologist who saw Ms Chuang at that practice said that she was working “9-5 and overtime with a different employer” (than the employer at the time of her injury.) That is consistent with Dr Lim’s certificate dated 11 May 2021 certifying her fit for some type of work for full time hours.
Dr Lim, Ms Chuang’s general practitioner, recorded in July 2021 that she was “working 9–5 and overtime with a different employer” but had reduced to 20 hours in September 2021. On 9 November 2021 he said that she was “str[BG1] uggling to work full time, has reduced to 20 hours per week).
The ARD contains a number of payment summaries for financial years ending 2018 to 2023. In those summaries, there is no record of Ms Chuang working for AC Stone before
1 July 2020 nor is there a reference to the company in her 2020 tax return. In the period until 31 March 2021 (39 weeks) she earned $15,587 or $399 per week. If the period ended on the date of injury (36.5 weeks) she earned $427 per week.
The payment summaries show that Ms Chuang started working for her current employer on 15 March 2021, within days of ceasing employment with AC Stone, and she earned $6,490 by 30 June, a period of roughly 15 weeks, which averages to $432. Ms Chuang’s taxable income for the 2021 financial year was $21,633, an average of $416. Those calculations are rough but they do not support a submission that Ms Chuang was earning considerably less after the injury. The figures are consistent with Ms Chuang’s 2021 tax return.
A statement from Jiesheng Qin, a director of AC Stone, dated 30 June 2023 says:
“The claim claimant generally worked three days a week. She worked as per the operational needs of the business, and as such did not work a regular pattern of days or hours. The claimant when working for the insured could work any day from Monday to Saturday. She worked no routine hours and as such she could work anywhere from 8:30 am to 5:30 pm. A review of the claimants pay records found that she worked on average between 64 to 67 [sic] a month.
The claimant at the time that she went to the insured was a student. I am aware that she was living in Australia, via some kind of student visa I do not know what course she was studying in Australia, or what education institution she was studying at in Australia.”
In a further statement dated 1 December 2023 Jiesheng Qin said that Ms Chuang told him when she resigned that she was going to work as an accounts person for a business that sold clothes. That evidence is consistent with the payment summaries.
All of that evidence shows that Ms Chuang worked about 20 hours per week before the injury.
The only visa in the file is a student visa dated 12 March 2023 which permits Ms Chuang to work no more than 40 hours per fortnight. It is consistent with Jiesheng Qin’s evidence that she was on a student visa when working for AC Stone.
Ms Chuang said that her current role requires her to work on a computer and requires little interaction with others. The pay records show that she works 20 hours per week. There are three pay slips in the file. That for the period from 26 April 2021 shows that Ms Chuang worked 20 hours per weeks.
The examples in Table 11.6 are based on an ability to work full time. The examples for class 2 are:
“Mild impairment. Able to work full time but in a different environment from that of the pre-injury 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).”
The examples for class 3 are:
“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).”
The evidence does not support the contention that Ms Chuang worked full time for AC Stone. Her capacity is reduced and she cannot work in her pre-injury job. The pay records show that she is able to work roughly the same hours, which is the maximum allowed by her visa. This is in addition to her undertaking TAFE level courses to maintain her visa status. Based on the examples in Table 11.6, she suffers a mild impairment and should be assessed in class 2.

Assessment

The scores under the PIRS arranged in ascending order in accordance with paragraph 11.14 of the Guidelines are 1, 2, 2, 2, 3, 3 and the median class is 2. The total is 13. Using Table 11.7, Ms Chuang’s WPI is 7%.
For these reasons, we have determined that the MAC issued on 4 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7245/23
Applicant:	Ying-Chieh (Jessica) Chuang
Respondent:	AC Stone Group Pty Ltd

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 Yu-Tang Shen 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 NSW workers compensation guidelines	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 and psychological injuries	13.3.21	Chapter 11	N/A	7	Nil	7%
Total % WPI (the Combined Table values of all sub-totals)					7%

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[2024] NSWPICMP 461

15 July 2024