Aitchison v Guardian Community Early Learning Centres Pty Ltd

[2025] NSWPICMP 5

DETERMINATION OF APPEAL PANEL
CITATION:	Aitchison v Guardian Community Early Learning Centres Pty Ltd [2025] NSWPICMP 5
APPELLANT:	Rebecca Aitchison
RESPONDENT:	Guardian Community Early Learning Centres Pty Limited
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	John Lam Po-Tang
DATE OF DECISION:	6 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant worker sought to admit additional evidence in the form of additional statements and alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under five of the psychiatric impairment rating scale (PIRS) categories; Appeal Panel declined to admit the additional statements; Held – error in two of the contested PIRS categories; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 25 September 2024 the worker, Rebecca Aitchison (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 August 2024.

2. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);

   ·        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 grounds 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, 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).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. The appellant requested that she undergo a re-examination. However, as a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel to enable a determination to be made.

EVIDENCE

Documentary evidence

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.

Fresh evidence

1. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.

2. The appellant seeks to admit the following evidence:

   (a)    further supplementary statement of the appellant dated 25 September 2024, and

   (b)    statement of the appellant’s husband dated 24 September 2024 (who was present during the medical assessment as the appellant’s support person).

3. The appellant submits that the evidence is relevant and was not available prior to the medical assessment because it is about the assessment. Guardian Community Early Learning Centres Pty Limited (the respondent) opposed the admission of the additional evidence.

4. The Appeal Panel declines to admit this additional evidence. There is a presumption of regularity in the conduct of the assessment and in the event that there are complaints about the manner in which the assessment was conducted then that is matter for the complaints process and not the appeal process. The appellant has had ample opportunity to present statement evidence in these proceedings prior to the medical assessment taking place and indeed there are multiple statements of the appellant relied upon in these proceedings.

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

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 matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        Date of injury: 10.03.2023

   ·        Body parts/systems referred: Psychiatric/psychological disorder

   ·        Method of assessment: Whole person impairment”

4. The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury	10.03.2023	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	7	1/10	6
Total % WPI (the Combined Table values of all sub-totals)					6%

1. The assessment was based on his assessment under the Psychiatric Impairment Rating Scale (PIRS) as required by the Guidelines as follows: (emphasis in original)

“Table 11.8: PIRS Rating Form

Name	Rebecca Aitchison	Claim reference number (if known)	W22691/24
DOB	xxxx	Age at time of injury	37
Date of Injury	10.03.2023	Occupation at time of injury	Centre Manager
Date of Assessment	26.08.2024	Marital Status before injury

Psychiatric diagnoses

1. Major Depressive Disorder with anxious distress

2.

3.

4.

Psychiatric treatment

Yes

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

2

Ms Aitchison reported that she showers two to three times every week and brushes at the same frequency. However, she has been mindful of her eating and now has stopped ordering Uber. She said that she “tries to cook healthy meals and aims to lose weight.” She added that she does “bulk cooking” and cooks easy recipes so that she does not end up ordering takeaways like before. She has been able to prepare her own meals and does not miss taking any meals. She does not rely on any takeaway food. There has been some mild impairment in her self-care and hence, I opine that her presentation is consistent with mild impairment.

Social and recreational activities

2

She enjoyed socialising with friends, going to movies, theatre, going for walks, etc. She said that, however, she has become socially withdrawn. On further questioning, she replied that she has two friends in Queensland whom she speaks to regularly. She also sees one friend every six weeks. She said that these friends have been supporting her through her difficult times. She takes her dogs out for walks. She also sees a personal trainer at the gym and is working on her physical health. She spends time playing with her dogs in the backyard and watching Netflix. She has only gone out once for movies this year. Since Ms Aitchison has been able to go out without a support person, and has been actively involved with her friends, whether it is through the phone or when they meet up, I believe that she has mild impairment in social and recreational activities.

Travel

2

Ms Aitchison has travelled to Berry, South Coast, which is a two-and-a-half-hour drive from her home to meet her parents. She also leaves home to go to the gym and see her friends and her sister every four to six weeks. She also leaves home for grocery shopping. I have also noted that Ms Aitchison travelled to Queensland in December 2023 to be a bridesmaid and travelled on her own. Although she was supported by David on the phone, she was able to do that on her own.

Social functioning

2

Ms Aitchison reported that her husband has been “quite supportive” and does most of the household chores. She said that he has been financially supporting her as well as she is no longer working. Her parents live in Berry and she sees them once every six to eight weeks. She also sees her sister who lives in St Ives once every month and they have been quite supportive as well. Ms Aitchison reported that her mental health has impacted her sexual relationship with her husband.

Concentration, persistence and pace

2

She reported that her “concentration is bad” and she gets distracted through the conversation. She reported that she earlier used to read a lot, however, she reported that she now forgets whatever she reads and cannot focus for more than 5 to 10 minutes. She finds it difficult to concentrate while watching television or movies and struggles to browse social media. However, Ms Aitchison was able to remember the details along with the dates pretty accurately during the assessment. She was able to focus during the assessment. In fact, she scored 3 out of 3 in three-word repeat during the assessment.

Employability

4

Ms Aitchison reported that she fears about the allegations and hence feels that she has a lesser chance of getting a job and is anxious as to where she would get a referee letter as her managers were the ones who bullied her. Ms. Acheson has severe impairment and cannot work more than one or two days at a time, less than 20 hours per fortnight because of ongoing symptoms.

Score

Median Class

2

2

2

2

2

4

=2

Aggregate Score Impairment

Total

%

+2

+4

+6

+8

+10

14

7

Deduction for pre-existing impairment = 1/10

Final WPI = 7 – 0.7 = 6.3 = 6%”

1. The worker appealed.

2. In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments she made under five of the PIRS categories, as follows:

   (a)    in assessing class 2 for self-care and personal hygiene when she should have assessed a class 3 or 4;

   (b)    in assessing class 2 for social and recreational activities when she should have assessed a class 3;

   (c)    in assessing class 2 for social functioning when he should have assessed a class 3;

   (d)    in assessing class 2 for concentration, persistence and pace when he should have assessed a class 3, and

   (e)    in assessing class 4 for employability when he should have assessed a class 5.

3. In summary, the respondent submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

4. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring her clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.

5. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.

6. The Medical Assessor took a history which she recorded as follows: (emphasis in original)

   “•      The Medical Assessor conducted a mental state examination which s Identifying information: Ms Aitchison is a 40-year-old female who lives with her husband in Quakers Hill.  

   ·      History: Ms Aitchison commenced working in August 2016 with Guardian Child Care and Education as an educator and was gradually promoted finally to become the centre manager. Her last day at work was on 31 October 2023. She reported that she has yet to return to work since then. She denied having any secondary employments or any businesses.

   Ms Aitchison reported that in or around November 2022, her employers started having enrolments for the next year, and she was told that ‘she would have to book 218 children per day,’ which was 10% more than what was legally allowed. She reported that she knew she would have to cancel enrolments as there were not as many cancellations as her employers predicted. She escalated the matter to her bosses as well. However, it was not addressed.

   In January 2023, the centre was overbooked, and she was even asked to ‘cut the positions.’ She said that she was told by the management that she would not have to deal with the families directly in case of cancellation. However, once the enrolments were cancelled, the family started contacting her and she had to deal with angry family members.

   She reported that she remembers one of the incidents when a parent came down to the centre and confronted, verbally abused, and threatened that they would go to the Department of Fair Trading and would report her. She added that the parent also threatened that he would ‘bad mouth about her and the centre.’

   She said that as soon as the incident happened, she sent an update to the managers, but she did not receive any reply promptly. She said that, at this stage, she was working at least 45 hours per week, and she was not even allowed to get casual staff members on board, even though multiple staff members were resigning. She alleged that she was not getting any support from the managers, and she again informed her managers about it, but she did not receive any support from them.

   She said that she usually takes two weeks off in March, and around that time before she was due to take her time off, she had gone to see her GP because of her worsening mental health. She said that her GP then advised her to take leave and gave her a certificate of capacity from 10 March. She said that she went to the South Coast during that time as the holiday was previously booked and stayed in an apartment for two weeks.

   She said that she used to go out for day trips and sightseeing during that trip. However, in the second week, she received an email from the manager saying that she would need medical clearance before she started working. Ms Aitchison reported that this triggered her significantly, and she began experiencing panic attacks. She said that she had a telehealth appointment with another GP from the same practice and was prescribed Valium.

   Once she returned back, she then saw her GP on 24 March 2023 and a new certificate of capacity was issued. Ms Aitchison reported that she started experiencing mental health symptoms in 2022 when the management changed. She alleged that the new manager was not supportive and ‘would be on her phone during the meeting.’

   She added that she initially tried to work more and get more things done. However, without the support of her managers and being understaffed meant that Ms Aitchison was always chasing her tail. She remembers having more fights with her husband and her sleep was also getting disturbed. She started then using maladaptive coping strategies, including drinking more alcohol.

   She said that before the workplace incidents, she used to drink socially ‘generally on a Friday/Saturday,’ which increased to a bottle of wine every second night. She remembers feeling ‘agitated and anxious.’ She elaborated that she was anxious about work and constantly tried to get support for her educators and children, but despite her best efforts and working extra hours, ‘Guardian felt that she was not doing much.’

   She said that she was referred to a psychologist and started seeing the Psychologist in May 2023 and had 10 sessions of cognitive behaviour therapy. She also saw Dr Ismail, Psychiatrist, who optimised her antidepressant medication mirtazapine to 60 mg. Ms Aitchison reported improving her mental health and made a graded return to work in July 2023.

   She said that initially, she worked two days, six hours a week and then three days, eight hours a week. She said she ‘pushed her GP to sign off the return to work as she felt that she had to prove to everyone that she was a fighter.’ She said that once she returned, she found out that the employer still had similar issues like staffing issues, etc. She said that there were at least 12 resignations during the time that she was gone.

   This meant she was pressured to rapidly increase her working hours even though she was not ready. She said that when she did not work, her assistant manager used to cover for her but did not do an excellent job at that. She said that since the assistant manager needed to perform better, the education leader later delegated the task. However towards the end she was then performing all three roles: centre manager, education leader, and manager.

   Ms Aitchison alleged that despite working in three roles, her employers were still not satisfied with her work. I asked her if she was on a performance improvement plan, to which she reported that she tried to fire a trainee in March 2023, but the managers asked her to give the benefit of the doubt. She was then put on a performance improvement plan.

   She reported that the final straw was when one of the educators witnessed inappropriate interaction with a child and she reported it to the manager. Her manager, however, misinterpreted that as sexual abuse and it ‘turned into a big education department investigation.’ She said that the investigation ultimately resulted in her employers having ‘five allegations against her.’

   The allegations were that she was unaware of the policies and procedures and did not follow the same. She said that this incident impacted her mental health to the extent that she was no longer able to work.

   Ms Aitchison reported that because of her deteriorating mental health, she eventually stopped working.

   She later completed a REACH program through the Black Dog Psychotherapy Group. The group ran for 10 sessions, each lasting about two hours.

   She also received TMS therapy for 30 +15 sessions. She continued to engage with her Psychiatrist and Psychologist for the management of her symptoms.

   She said that despite the psychological and pharmacological treatment, her mental health continued to deteriorate.

   Personal history: Ms Aitchison was born in Sydney and grew up with her elder sister. She reported having normal birth and denied having any delay in developmental milestones. She said that her childhood was good, and her parents have been inverted comma married for close to 50 years. She denied witnessing any traumatic incidents or experiencing any adverse events.

   She reported that her mom worked as a schoolteacher and dad worked at TAFE before retiring. She reported that they had family holidays, and she attended a private school. After completing year 12, she went to TAFE to complete a diploma in children's services and then started working. She has been with her current partner for 11 years and married for six. She does not have any dependents.

   Forensic history: Ms Aitchison denied having any criminal convictions or any incarcerations.

   Family history: She denied having any family history of mental health illnesses.

   Drug and alcohol history: Ms Aitchison reported that she had an unrelated back injury in March 2024 and was prescribed Endone for the same. She said that she stopped taking it when her back improved. She, however, took ‘more than what was prescribed and was taking one to two tablets at a time.’ She added that she took it for a couple of months and then stopped taking the Endone.

   ·      Present treatment: She is currently on desvenlafaxine 200 mg and Seroquel 25 mg. She continues to see Dr Ismail every six weeks. She is also on glipizide and cholesterol-lowering medications. She also sees her psychologist every fortnightly to three weeks. She has received 30 initial sessions of TMS which were later augmented by 15 more sessions at Mind Connections. She is also attending another group program, REACH, which is a 10-week group therapy program.

   ·      Present symptoms: Ms Aitchison reported that her current mental health is ‘bad.’ She said that there was an improvement when she went to work, but her mental health has since deteriorated. She said that even after she stopped working, she continues to be contacted by her employers, like for security systems, etc, which has impacted her mental health.

   Her sleep ‘depends on the day.’ She reported that she generally tosses and turns and has a lot of ‘dreams from the last IME.’ She said that her husband works from home to support her, and she tries to book appointments for later in the day so that he can support her. She gets up at varying times of the day and does not do a lot of activities at home.

   She reported experiencing pervasive low mood, anhedonia, low energy and motivation levels and insomnia. She also struggles with self-confidence and worthlessness.

   She, however, has worked on her alcohol intake and now drinks ‘once every six to eight weeks,’ and drinks about ‘two to three drinks each time.’ She said that she continues to struggle with being intimate with her husband and does not find anything pleasurable. She has lost her self-confidence, feels worthless, and is unsure of her future.

   She alleged that she was ‘bullied to work full-time’ and that the ‘sexual abuse case was blown out of proportion just to force her out of work.’

   ·      Details of any previous or subsequent accident or injuries: Ms Aitchison reported that she saw a psychologist about 13 to 14 years back in the context of her ex-partner being a ‘high-functioning alcoholic’ She said that she was trying to get support from him. She reflected that she was ‘sad and upset’ and saw the Psychologist to get support on how to help her ex-partner.

   She also saw a psychologist in 2021 about ‘her eating.’ She later elaborated that she used to binge every day on lots of food and ‘drank a lot of alcohol and ate a lot.’ She said that at that time, she used to order takeaway about four to five times a week but since then she has worked on her eating habits.

   ·      General health: Ms Aitchison has diabetes mellitus, hypercholesterolaemia, and PCOS.

   ·      Work history including previous work history, if relevant: Nil.

   ·      Social activities/ADL: Ms Aitchison reported that she showers two to three times every week and brushes at the same frequency. However, she has been mindful of her eating and now has stopped ordering Uber. She said that she ‘tries to cook healthy meals and aims to lose weight.’ She added that she does ‘bulk cooking’ and cooks easy recipes so that she does not end up ordering takeaways like before.

   She has been able to prepare her own meals and does not miss taking any meals. She does not rely on any takeaway food. There has been some mild impairment in her self-care and hence, I opine that her presentation is consistent with mild impairment. She enjoyed socialising with friends, going to movies, theatre, going for walks, etc. She said that, however, she has become socially withdrawn.

   On further questioning, she replied that she has two friends in Queensland whom she speaks to regularly and sees one friend every six weeks. She said that these friends have been supporting her through her difficult times. She takes her dogs out for walks. She also sees a personal trainer at the gym and is working on her physical health. She spends time playing with her dogs in the backyard and watching Netflix. She has only gone out for movies once this year. Since Ms Aitchison has been able to go out without a support person and has been actively involved with her friends, whether it is through the phone or when they meet up, I believe that she has mild impairment in social and recreational activities.

   Ms Aitchison has travelled to Berry, South Coast, a two-and-a-half-hour drive from her home to meet her parents.

   She also leaves home to go to the gym, see her friends and her sister every four to six weeks, and go grocery shopping. I have also noted that Ms Aitchison travelled to Queensland in December 2023 to be a bridesmaid and travelled on her own. Although David supported her on the phone, she was able to do that on her own.

   Ms Aitchison reported that her husband has been ‘quite supportive’ and does most of the household chores. She said that he has been financially supporting her as well as she is no longer working. Her parents live in Berry and she sees them once every six to eight weeks. She also sees her sister who lives in St Ives once every month and they have been quite supportive as well.

   Ms Aitchison reported that her mental health has impacted her sexual relationship with her husband. She reported that her ‘concentration is bad’ and she gets distracted through the conversation. She reported that she earlier used to read a lot, however, she reported that she now forgets whatever she reads and cannot focus for more than 5 to 10 minutes.

   She finds it difficult to concentrate while watching television or movies and struggles to browse social media. However, Ms Aitchison was able to remember the details and dates pretty accurately during the assessment. She was able to focus during the assessment. In fact, she scored 3 out of 3 in three-word repeat during the assessment.

   Ms Aitchison reported that she fears about the allegations and hence feels that she has got a lesser chance of getting a job and is anxious as to where she would get a referee letter as her managers were the ones who bullied her.”

1. The Appeal Panel is satisfied that an adequately detailed history was taken which is broadly consistent with the other evidence that was before the Medical Assessor. Medical Assessors have to obtain a focussed history and undertake a mental state assessment in a finite appointment time.

2. The Medical Assessor conducted a mental state examination of which she recorded as follows:

   “I reviewed Ms Aitchison via video. She was accompanied by her husband during the assessment. She engaged well during the assessment and was cooperative. She presented as a 40-year-old Caucasian female who looked slightly overweight. There was no evidence of any psychomotor agitation or retardation. No abnormal motor movements like tics or mannerisms were noted.

   She was casually dressed, wearing hand bracelets, a smart watch, and a grey T-shirt. Her hair was tied at the back. She took two breaks in between to compose herself, as she was quite emotional and teary during the assessment. She, however, gave a clear account of her symptoms and difficulty with much accuracy, including the details around dates, etc.

   She reported her mood to be bad, and her affect was dysphoric and teary. Her thoughts were logical, and goal directed. Her speech was spontaneous and normal in volume and tone. She currently reported ongoing, pervasive low mood, anhedonia, insomnia, fluctuating appetite, and low energy and motivation levels.

   There was no evidence of any manic, psychotic, or perceptual abnormalities. She had insight into her condition, and her judgement was intact. She was able to focus during the assessment and was not distracted. She did not have any suicidal thoughts, plans or intent.”

3. The Medical Assessor summarised the injury and her diagnosis as follows: (emphasis in original)

   “•      summary of injuries and diagnoses: Ms Aitchison is a 40-year-old female who worked as a childcare manager at Guardian Education Centre. Ms Aitchison alleged being verbally abused by her parents, overworked, and unsupported by her management. She started experiencing mental health symptoms and stopped working in March 2023. She later returned to work in July 2023 on a return-to-work plan.

   However, upon returning to work, she was still unsupported, had to cover for multiple staff members, worked overtime, and was accused of inappropriate conduct. There was an inquiry about the same, and five allegations were made against her. This was the final incident that impacted her mental health, and she stopped working.

   At the time of the assessment, Ms Aitchison experienced anhedonia, pervasive low mood, fluctuating appetite, low energy and motivation, decreased attention and concentration, feelings of hopelessness and worthlessness, and anxiety symptoms. These symptoms have impacted her functioning in the areas of self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability.

   Ms Aitchison's current presentation is consistent with the diagnosis of Major Depressive Disorder with anxious distress. The diagnosis is based on the DSM-5 criteria which I have highlighted in bold.

   Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
   Note: Do not include symptoms that are clearly attributable to another medical condition.

   ·         Depressed most of the day, nearly every day as indicated by subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful)

   ·         Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation)

   ·         Significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day

   ·         Insomnia or hypersomnia nearly every day

   ·         Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)

   ·         Fatigue or loss of energy nearly every day

   ·         Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).

   ·         Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)

   ·         Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide

   -       The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

   -       The episode is not attributable to the physiological effects of a substance or to another medical condition.
   Note: The above criteria represent a major depressive episode.

   -       The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.

   -       There has never been a manic episode or a hypomanic episode.
   Note: This exclusion does not apply if all of the manic-like or hypomanic-like episodes are substance- induced or are attributable to the physiological effects of another medical condition

   Ms Aitchison has since received evidence-based treatment, including biological treatment with antidepressants and TMS. She has also received psychological interventions including cognitive behaviour therapy and group therapy. She continues to engage in group therapy sessions for her Major Depressive Disorder.

   I opine that she has reached maximal medical improvement as she has received evidence-based treatment for her symptoms.

   ·        consistency of presentation

   Ms Aitchison's presentation was mostly consistent with the history given during clinical interview, documentation received, and mental status examination except:

   Ms Aitchison reported difficulties in her attention and concentration and said that she forgets things and gets distracted even during conversations. However, during my assessment, Ms Aitchison was able to give detailed history with correct information around the incidents, including the dates as well. She was focused during the assessment.”

4. The Medical Assessor made an assessment of whole person impairment (WPI) in accordance with her assessment under the six PIRS categories as set out above noting that her assessment was based upon the following:

   “In making that assessment I have taken account of the following matters:-

   -Clinical Interview

   -Mental Status Examination

   -Documentation received including previous IME.”

5. The Medical Assessor made brief comment on the other opinions as follows: (emphasis in original)

   “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

   ·IME by Dr Abhishek Nagesh, dated 13 December 2023. Dr Nagesh concluded that Ms Aitchison's presentation was consistent with Major Depressive Disorder with anxious distress. He also calculated the WPI as 22%. I have also noted that Dr Nagesh did not make any deductions for any pre-existing impairment. Kindly note, I have made deductions and given my reason as in point 11.

   ·I have noted letters by Dr Raiz Ismail, dated 8 May 2024. The plan of supportive psychotherapy, increasing the dose of Pristiq to 200 mg, continuing Dayvigo 10 mg, lifestyle changes, exercises and four-weekly appointments with the Psychologist continuing TMS weekly, and group therapy weekly.

   ·I have noted notes by Dr Mohammed Akhtar, multiple dates. I have noted that a note dated 19.03.2021 mentions has depression/anxiety, is comfortable eating and is tearful throughout, is keen to have family and is sure of weight loss surgery. I have noted other notes in 2021 with the diagnosis of anxiety and advice regarding psychology referral and antidepressants. I have also noted that the date 09.04.2021 mentions concern about the child in daycare; he is aggressive and difficult to control.

   ·Visit dated 20.10.2021, mentioning ‘binge eating, including BMI, struggling to conceive, worsening DM, impacting on mood and relationship, tearful, agitated, no thoughts of DSH or suicide.’

   ·Visit 04.05.2022, ‘frustrated with work and again struggling with weight, clearly has anxiety/depression, advised Psychologist.’

   ·Visit dated 16.12.2022 mentions, ‘Not checked for > 12 months adv rpt b/t, BMI still > 40, and adv weight loss, diet discussed, exercise discussed, options discussed, and says trying, depressed, tearful, and struggling to balance home/work life, has good insight, but unable to practically do what she would like, struggling with relationship with husband, he is also depressed, and reduced intimacy and would like to have children, no thoughts of DSH or suicide, engaged well, good insight, adv DM meds, and b/t, adv to see diabetes educator and re-educated on DM, eating takeaways and wrong foods and feels fed up, has minimal control.’

   ·Letter by Dr Ismail dated 10.05.2023, which mentions that she saw a psychiatrist about 20 years back and was prescribed Ritalin. Saw a psychiatrist 10 years ago, there was some relationship conflict as her boyfriend had drinking issues. Noted letter by Dr Raees Ismail, dated 12.07.2023, 11.05.2023.

   ·Report by Bob Craig, Psychologist, dated 21.06.2023.

   ·IME by Dr Nadeem Anwar dated 29 June 2023. I have noted that Dr Anwar diagnosed Ms Aitchison with Adjustment Disorder with mixed anxiety and depressed mood.

   IME by Dr Nadeem Anwar, dated 22 April 2024, mentioning the diagnosis of Major Depressive Disorder. He mentioned that Ms Aitchison has not reached maximal medical improvement and hence he did not calculate the WPI. I respectfully disagree, as Ms Aitchison has clearly received evidence-based treatment, including treatment with antidepressants, psychological interventions, and treatment with TMS as well. She has also received group psychotherapy and, in fact, has completed 10 sessions earlier and currently is engaged with another round of group psychotherapy.”

6. The Medical Assessor explained her reasons for assessment under each of the PIRS categories as set out in the table above.

7. The appellant complains that the Medical Assessor has erred in respect of five out of the six categories assessed, namely Self-care and Personal Hygiene, Social and Recreational Activities, Social Functioning, Concentration, Persistence and Pace, and Employability.

8. The MAC must be read as a whole. The Appeal Panel cannot interfere with these ratings absent error by the Medical Assessor. The Appeal Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Appeal Panel will deal with each category complained about on appeal in turn.

9. In respect of Self-care and Personal Hygiene, Table 11.1 of the Guidelines provides as follows:

   Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population
Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4	Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5	Totally impaired: Needs assistance with basic functions, such as feeding and toileting.

1. The Medical Assessor rated a mild impairment at class 2 with the following reasoning: (emphasis in original)

   “Ms Aitchison reported that she showers two to three times every week and brushes at the same frequency. However, she has been mindful of her eating and now has stopped ordering Uber. She said that she ‘tries to cook healthy meals and aims to lose weight.’ She added that she does ‘bulk cooking’ and cooks easy recipes so that she does not end up ordering takeaways like before. She has been able to prepare her own meals and does not miss taking any meals. She does not rely on any takeaway food. There has been some mild impairment in her self-care and hence, I opine that her presentation is consistent with mild impairment.”

2. The appellant submitted that a class 3 or class 4 should have been assessed.

3. There is no basis upon which a class 4 should have been assessed. For the appellant to be assessed as class 4 (severe impairment) she would need to be assessed as requiring supervised residential care. There is simply no basis on either the appellant’s own self report, the clinical evaluation of the medical assessor or the other evidence before the medical assessor that such an assessment could be made.

4. However the Appeal Panel is satisfied that an error was made in the assessment of class 2 or a mild impairment. The Medical Assessor has failed to adequately take account of the level of support that the appellant’s husband is providing to the appellant in this arena. He works from home and as such is able to provide the regular support required by the appellant including importantly, as recorded by a clinician in a non-legal setting, a reliance on him to remind the appellant to take her psychotropic medication. The frequency of showering and brushing teeth is far less than would be considered indicative of looking after one’s self adequately.

5. The Appeal Panel considers that error has been made and the appropriate assessment based on the correct criteria in the Guides is a moderate impairment at class 3.

6. In respect of Social and Recreational Activities, Table 11.2 of the Guidelines provides as follows:

   Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

1. The Medical Assessor assessed a mild impairment at class 2 with the following reasoning:

   “She enjoyed socialising with friends, going to movies, theatre, going for walks, etc. She said that, however, she has become socially withdrawn. On further questioning, she replied that she has two friends in Queensland whom she speaks to regularly. She also sees one friend every six weeks. She said that these friends have been supporting her through her difficult times. She takes her dogs out for walks. She also sees a personal trainer at the gym and is working on her physical health. She spends time playing with her dogs in the backyard and watching Netflix. She has only gone out once for movies this year. Since Ms Aitchison has been able to go out without a support person, and has been actively involved with her friends, whether it is through the phone or when they meet up, I believe that she has mild impairment in social and recreational activities.”

2. The appellant submitted that a class 3 or moderate impairment should have been assessed.

3. The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is undertaking regular social activity without the need for a support person. She is also undertaking regular recreational activities such as going to the gym weekly and walking her dogs. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.

4. In respect of Social Functioning, Table 11.4 of the Guidelines provides as follows:

   Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
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.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

1. The Medical Assessor assessed class 2 with the following reasoning: (emphasis in original)

   “Ms Aitchison reported that her husband has been ‘quite supportive’ and does most of the household chores. She said that he has been financially supporting her as well as she is no longer working. Her parents live in Berry and she sees them once every six to eight weeks. She also sees her sister who lives in St Ives once every month and they have been quite supportive as well. Ms Aitchison reported that her mental health has impacted her sexual relationship with her husband.”

2. The appellant submitted that the Medical Assessor should have assessed a moderate impairment at class 3.

3. Social functioning is concerned with the quality of relationships. An assessment of moderate impairment requires that existing relationships are severely strained evidenced by periods of separation. The appellant continues to maintain a strong relationships with her husband –  there are no periods of separation and indeed he is supportive and the appellant and her husband consider the relationship sufficiently strong that they are planning to have children. In addition strong familial ties are maintained with her parents and siblings. Whilst there is self report of some degree of social withdrawal the appellant continues to maintain existing friendships which have been supportive, and the extent of the ongoing quality of her relationships evident in her being a bridesmaid for her friend as recently as December 2023. There is no evidence of what could be characterised as a “severe strain” on existing relationships to support a moderate impairment rating. The Appeal Panel considers that a mild impairment is the best fit and a class 2 is the more appropriate assessment in accordance with the criteria of the category of social functioning.

4. In respect of Concentration, Persistence and Pace, Table 11.5 of the Guidelines provides as follows:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

1. The Medical Assessor assessed class 2 or mild impairment with the following reasoning: (emphasis in original)

   “She reported that her ‘concentration is bad’ and she gets distracted through the conversation. She reported that she earlier used to read a lot, however, she reported that she now forgets whatever she reads and cannot focus for more than 5 to 10 minutes. She finds it difficult to concentrate while watching television or movies and struggles to browse social media. However, Ms Aitchison was able to remember the details along with the dates pretty accurately during the assessment. She was able to focus during the assessment. In fact, she scored 3 out of 3 in three-word repeat during the assessment.”

2. The appellant submitted that a moderate impairment or class 3 should have been assessed.

3. Assessment cannot be based on self-report alone. The Medical Assessor has to make an independent assessment on the day of examination using her clinical expertise, and in this case the degree of impairment can be clinically evaluated within the assessment. The medical sessor has clearly taken account of the appellant’s self report and clinically evaluated her findings on mental state examination to classify the appellant as mildly impaired. The Medical Assessor has made an independent assessment on the day of examination and has based her assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of class 2 which is the best fit.

4. In respect of Employability, Table 11.6 of the Guidelines provides as follows:

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training.

The person is able to cope with the normal demands of the job.

Class 2

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).

Class 3

Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).

Class 4

Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

Class 5

Totally impaired: Cannot work at all.

1. The Medical Assessor rated class 4 with the following explanation:

   “Ms Aitchison reported that she fears about the allegations and hence feels that she has a lesser chance of getting a job and is anxious as to where she would get a referee letter as her managers were the ones who bullied her. Ms. Acheson has severe impairment and cannot work more than one or two days at a time, less than 20 hours per fortnight because of ongoing symptoms.”

2. The appellant says the rating should have been total impairment at class 5.

3. The Appeal Panel considers that the Medical Assessor erred in rating a Class 4 as there is no evidence that the appellant is able to work. Although she reports some level of function across many domains the panel can discern none that would support some hours of employable activity in either a remunerated or volunteer role. Class 5 is the correct fit and should have been assessed.

4. In summary, the classes of social and recreation activities, social functioning and concentration, persistence and pace assessed by the Medical Assessor have been confirmed on appeal. However, there were errors in the assessments for Self-care and Personal Hygiene which was assessed as class 2, which the evidence shows should have been assessed as class 3, and Employability which was assessed as class 4 and should have been assessed as class 5.

5. This means the calculations become as follows:

Score								Median Class
2	2	2	2	3	5		=2
Aggregate Score Impairment						Total			%
+2	+4	+6	+8	+11	5	16			9

1. There was no complaint on appeal about the deduction of one-tenth made by the Medical Assessor which means 9% less 0.9 becomes 8% WPI after rounding.

2. The appellant complained on appeal that the medical assessor erred in failing to allow any percent WPI for the effects of treatment.

3. The Appeal Panel is satisfied that no error was made in this regard as the medical assessor was constrained by the criteria in the Guides which provides at para 1.32 as follows:

   “Where the effective long term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment but the claimant is likely to revert to the original degree of permanent impairment if treatment is withdrawn the assessor may increase the percentage of WPI by 1%, 2% or 3%.”

4. The appellant herself in the latest statement (June 2024) describing the impact of her treatment on her condition states that she believes her condition is still so refractory to treatment that she has numerous symptoms, ongoing impairment and is unable to return to work. As such there is no evidence either that the treatment has been “effective” or led to a substantial or total elimination of her impairment. As the requisite criteria were not satisfied on the evidence in this case, in accordance with the assessment of the Medical Assessor there is no justification for an allowance for the effects of treatment and the Medical Assessor was correct to make no such allowance.

5. This means that the total permanent impairment assessed as a result of the referred injury is 8% WPI (9% WPI less 0.9 (one-tenth under s 323)) gives 8% WPI after rounding with no allowance for the effects of treatment.

6. For these reasons, the Appeal Panel has determined that the MAC issued on 29 August 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:	W22692/24
Applicant:	Rebecca Aitchison
Respondent:	Guardian Community Early Learning Centres Pty Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma 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 AMA5 Guides	% WPI	WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical Injury	10/03/2023	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Tables: 11.1,11.2,11.3,11.5, 11.5,11.6	9	1/10	8
Total % WPI (the Combined Table values of all sub-totals)					8%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.