AKD NSW Pty Ltd v Friend
[2025] NSWPICMP 212
•27 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | AKD NSW Pty Ltd v Friend [2025] NSWPICMP 212 |
| APPELLANT: | AKD NSW Pty Ltd |
| RESPONDENT: | Ronald Keith Friend |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Doug Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 27 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); medical appeal; challenge to two of the psychiatric impairment rating scales (PIRS); social and recreational activities, and concentration, persistence and pace; worker attending Men’s Shed on a regular basis; specifics of attendance involve multiple areas of functioning; Ballas v Department of Education (State of NSW), Lancaster v Foxtel Management Pty Ltd, and Botha v Secretary, NSW Department of Customer Service considered; Held – MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 December 2024 AKD NSW Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Aman Suman a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 November 2024.
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):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
Mr Friend worked in the timber industry for over 40 years, including with AKD NSW Pty Ltd (the appellant) as a labourer. In February 2022 another employee (the lead hand) abused Mr Friend in front of others. This triggered the onset of his psychological injury which was deemed to have occurred on 7 February 2022.
Mr Friend made a claim for compensation. In previous proceedings in the Personal Injury Commission (Commission), an agreement was reached concerning the payment of weekly benefits and medical expenses.
Mr Friend made a claim for lump sum compensation which involved some controversy as to whether an offer was made and accepted. Ultimate proceedings were commenced in the Commission with the matter being referred to a Medical Assessor for assessment of Mr Friend’s permanent impairment.
On 26 November 2024, a MAC was issued, which found that Mr Friend suffered from 19% whole person impairment. The appellant appeals against that assessment, challenging the assessment made by the Medical Assessor in two of the Psychiatric Impairment Rating Scales (PIRS), being social and recreational activities, and concentration, persistence and pace.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient information available in the MAC and the documents referred to the Medical Assessor to determine the issues raised on appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
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
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor assessed concentration, persistence and pace on the basis of incorrect criteria and the MAC contains a demonstrable error in the Medical Assessor’s consideration of that PIRS. The appellant also challenges the assessment of social and recreational activities on the same bases (albeit with different submissions).
The respondent opposes the appeal. Specific submissions are made addressing each ground relied upon by the appellant, in a rather narrative form. The Appeal Panel will discuss the specific submissions of the parties in the findings and reasons, below.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. In the present case, the appellant’s submissions go to two of the PIRS assessed under the Guidelines, and the Appeal Panel’s consideration of the matter is limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.”
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 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.
The appellant challenges two of the assessments made by the Medical Assessor under the PIRS. The submissions are addressed separately to the grounds of incorrect criteria and demonstrable error. The Appeal Panel will deal with each PIRS separately, considering both grounds raised in each by the appellant, as well as the respondent’s notice of opposition.
Before turning to the specific submissions made, it is worth discussing how assessments of psychological injuries are assessed under the Guidelines. All assessments of permanent impairment are undertaken “in accordance with” the Guidelines (s 322(1) of the 1998 Act).
For the purposes of assessing psychiatric injuries, there are six scales, known as the PIRS, “each of which evaluates an area of functional impairment” (cl 11.11 of the Guidelines). The scales give examples of activities that are to be taken into account when assessing the class of functional impairment. The class descriptors range from no or minor deficit, through to totally impaired. This is explained by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887:
“Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment.”
Each area of functional impairment provides a series of examples, that are “examples only” (cl 11.12). In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J considered the construction of the PIRS in the context of the examples given. He provided some commentary on the construction of the Guidelines:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.” (at [57])
Concentration, persistence and pace
The Medical Assessor assessed class 3 in this PIRS. He provides the following reasons on page 12 of the MAC in the PIRS table:
“Mr Friend told me that he struggles with poor concentration and recall. He was observed to be struggling with his concentration and recall during the assessment. He kept asking his wife for important information/details, especially dates and specific information about his treatment. Mr Friend said, “I tend to forget names and where I placed my keys or other items”. Mr Friend’s description indicates he continues to struggle with severe anxiety symptoms. He feels exhausted throughout the day. He told me it takes him a lot of effort to attend to the household chores or any tasks requiring concentration or planning: “My wife is managing all the paperwork and anything to do with the computers”.”
The appellant submits that the Medical Assessor should have assessed class 2 in this PIRS.
The criteria in Table 11.5 for the relevant classes in issue are:
“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.”
The appellant relies on two grounds of appeal under this PIRS, being incorrect criteria and demonstrable error. The submissions do not particularly deal with the grounds of appeal or identify any difference between the two. The appellant’s submissions in respect of demonstrable error largely reiterate the submissions given in respect of incorrect criteria.
The appellant submits that the Medical Assessor largely relied on the history given to him by the respondent and has not considered other evidence available to him. In particular, references are made to Mr Friend’s attendance at the Men’s Shed, and how that evidence was considered by Dr Young, who assessed class 2 impairment in this PIRS. The appellant also submits that the Medical Assessor has made reference to the respondent relying on his wife to provide assistance, but in that regard Mr Friend has relied on his wife for many years, including when attending his general practitioner.
The respondent submits that the Medical Assessor expressly considered Mr Friend’s attendance at the Men’s Shed, and the information obtained by the Medical Assessor is consistent with the other evidence available before him. The examples given in the Guidelines are examples only. The respondent further submits that the Medical Assessor has explicitly considered the evidence of Dr Young and the treating practitioners.
The Appeal Panel note that the appellant’s submissions on this ground, as well as when addressing the PIRS of social and recreation activities, largely concern Mr Friend’s attendance at the Men’s Shed. The Appeal Panel are cognisant of the decision in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas), which concerned (inter alia) the categorisation of conduct into one or other of the scales (see [93]-[94]). Ballas was considered by Basten JA in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 (Lancaster):
“The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor “social and recreational activities” if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term “recreational” by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.
Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas. In any event, no similar error is alleged to have occurred in the present case: the question here is whether the Appeal Panel erred in assigning a particular class (that is level of severity) in relation to conduct which concededly fell within the particular scales (or categories).”
Similar caution was similarly expressed in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 by Stern JA (at [14]):
“Their Honours held, on the facts of that case, that the finding of the medical assessor that the worker “sees one friend regularly” fell “squarely within the “social functioning (relationships)” scale”, and, by implication, not within the Social and Recreational PIRS: at [96]. It is important that this finding is not taken out of its own factual context. It should not be read as holding that social and recreational activities with friends, or even with one friend, cannot properly be characterised as going to the Social and Recreational PIRS. In Ballas, the worker submitted (and there is nothing to suggest that that submission was contradicted) that there was no reference in the history set out in the medical assessor’s certificate to the worker seeing the “one friend”, and it was not possible from the medical assessor’s assessment to know in what circumstances that contact occurred (as recorded in Ballas at [35], [81]). The dearth of information in Ballas to explain in what context the worker saw that one friend informs their Honours’ conclusion as to characterisation. The mere fact that the worker saw a friend regularly would not indicate that the occasion on which she did so was properly categorised as a social and recreational activity.”
It is the Appeal Panel’s view that Mr Friend’s attendance at the Men’s Shed is not limited to consideration in only one of the PIRS. His attendance at the Men’s Shed is a relevant consideration for a number of the PIRS, for example in travel (the extent to which Mr Friend can travel to the Men’s Shed with or without a support person), social and recreational activities (the type of activities undertaken and how Mr Friend interacts with others at the Men’s Shed, which will be considered below), and concentration, persistence, and pace (Mr Friend’s ability to concentrate, participate in and persist at tasks at the Men’s Shed.
Here there is no overlap between the particular conduct. Attending the Men’s Shed impacts on a number of areas of functioning and is an important consideration in those areas. The Medical Assessor takes the following history in respect of Mr Friend’s attendance at the Men’s Shed:
“He told me, “In early 2023, I started attending Men’s Sheds. It was four hours per day, two days a week. I was able to discuss my problems with others who had similar issues”. Mr Friend told me that he found attending Men’s Sheds therapeutic. He highlighted that he still avoided meeting any of his previous friends or going to the pub for a drink.”
Supplemented by the history taken by the Medical Assessor are supporting materials contained in the evidence sent to the Medical Assessor. The appellant refers to some of these, in particular the records of Martin Alster, the respondent’s treating psychologist. The records initially record attendance at the Men’s Shed two mornings per week (consistent with the history recorded by the Medical Assessor) rising to three days per week by 18 April 2023. The other evidence the applicant points to is the respondent’s attendance at his treating general practitioner, which appears to have been with his wife for a period long before the work injury, suggesting that this was an aspect of the appellant’s relationship.
In respect of the first point, concerning the respondent’s attendance at the Men’s Shed, it is clear that the Medical Assessor was aware of this. He refers to it in his history taking as outlined above. The Medical Assessor was also clearly aware of the opinion of Dr Young, including his assessment of impairment, as he comments upon it on page 7 of the MAC.
In that respect, it cannot be said that the Medical Assessor failed to consider this evidence. This rules out the ground of demonstrable error as raised by the appellant. However, the appellant has also submitted that the Medical Assessor assessed Mr Friend’s concentration, persistence and pace on the basis of incorrect criteria. The criteria for assessment in classes 2 and 3 of this PIRS are set out above. The Guidelines, inter alia, set out criteria with relevance as to whether a worker can focus on “intellectually demanding tasks” (class 2) and “follow complex instructions” (class 3).
There is certainly evidence of capacity to perform tasks through Mr Friend’s attendance at the Men’s Shed, now three days per week. When attending Mr Friend engages in woodworking activities in the company of other men, whilst also discussing his mental health issues. He also, independently builds birds nests for his neighbours (per his statement dated 5 April 2024). The above activities require Mr Friend to plan, purchase or otherwise obtain materials and concentrate on a process. Having worked in the timber industry for over 40 years, he is no doubt familiar with the processes involved in completing such tasks. Nevertheless the task of building bird boxes reflects a capacity to plan, persist and concentrate for reasonable periods of time. That is a factor that should be taken into account when considering activities “that are usual for the person’s age, sex and cultural norms”.
The Medical Assessor’s reasons under this PIRS also include reference to Mr Friend’s memory issues. The Appeal Panel’s view is that the applicability of memory loss and recall, with respect to this PIRS, must be treated with caution. The Guidelines do not refer to memory loss in any of the five classes. Whilst concentration is clearly part of the criteria, and the Medical Assessor has taken that into account (“he struggles with poor concentration … he was observed to be struggling with his concentration”), the Medical Assessor has also considered Mr Friend’s memory issues:
“he struggles with… recall… and recall during the assessment. He kept asking his wife for important information/details, especially dates and specific information about his treatment. Mr Friend said, ‘I tend to forget names and where I place my keys or other items’”.
The Medical Assessor has also considered that Mr Friend’s wife manages paperwork and anything to do with computers. It is not clear whether this is due to a habitual division of tasks, ability, or as a result of the work injury. In circumstances where Mr Friend has worked in physical roles all his life, it is likely that this is an “age, sex and cultural norm” that should have been taken into account by the Medical Assessor.
On consideration of the totality of the evidence in the context of the Guidelines, the Appeal Panel are satisfied that the Medical Assessor has applied incorrect criteria. He has considered matters outside of the Guidelines (i.e. memory issues), has not properly considered the norms set out in cl 11.12, and has not referred to an apparently considered the activities engaged in by Mr Friend when he attends the Men’s Shed and works on projects, including the building of bird houses, in his own time.
On the totality of the evidence, Mr Friend’s functioning cannot be classified as class 3. He has a demonstrated ability to attend to intellectually demanding tasks at least three days per week when he attends the Men’s Shed (and likely more when working at home). The issues taken into account by the Medical Assessor are closer to memory-related issues than related to concentration, persistence and pace. In those circumstances, this ground of appeal is made out and the correct assessment under this PIRS is class 2.
Social and recreational activities
The Medical Assessor assessed class 3 in this PIRS. He provides the following reasons on page 11 of the MAC:
“Mr Friend told me he has avoided attending social or family events. He said, “With people around, I feel anxious. I prefer being alone in the room”. Mr Friend told me that he has been unable to enjoy or watch sports or spend time with his family, which he used to enjoy. He has been on holiday, although he has not been able to enjoy it.”
The appellant submits that the Medical Assessor should have assessed class 2. The relevant criteria for each class appears in Table 11.2 of the Guidelines:
“Class 2 Mild impairment: Occasionally goes 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.”
Again, the appellant relies on two grounds of appeal, being incorrect criteria and demonstrable error. Much of the appellant’s submissions concern Mr Friend’s attendance at the Men’s Shed. The history of attendance at the Men’s Shed has been discussed above. The appellant submits that Mr Friend attends the Men’s Shed on a regular basis, does not require a support person to undertake such activity, derives enjoyment from it and actively participates in the activity. The appellant further submits that the Medical Assessor has focused solely on the “social” aspect of the respondent’s capacity, and has not given due weight to the recreational component.
In reply, the respondent submits that the Medical Assessor has performed a clinical examination of the respondent, has plainly read the Guidelines, and has performed an assessment taking into account the activities he engages in. The Medical Assessor recorded the role of the Men’s Shed in considering social and recreational activities. The fact that the respondent found attending the Men’s Shed therapeutic did not detract from the fact that his social and recreational activities have been substantially diminished. The respondent also submits there is no basis for the submission that the Medical Assessor failed to give due weight to the “recreational” component of this PIRS, and the criteria are not divisible in that regard.
The history taken by the Medical Assessor in respect of Mr Friend’s attendance at the Men’s Shed is recorded at [32] above. Mr Friend began attending the Men’s Shed in 2023, for four hours per day, two days per week (it is noted that based on the clinical information, this has increased to three days per week. The history taken by the Medical Assessor is not inconsistent with this, as he has recorded the history of when Mr Friend started attending the Men’s Shed). He discussed his problems “with others who had similar issues”. He found it “therapeutic” but still avoided meeting his previous friends or going to the pub for a drink.
Dr Young took a history that Mr Friend liked to “have a yarn” at the Men’s Shed, and his general practitioner, in a consultation on 21 March 2023 commented that he was “making good connections there”.
The Appeal Panel are satisfied that the Medical Assessor has failed to appropriately consider the respondent’s activities, in attending the Men’s Shed, as part of this PIRS. He makes no reference to it in his reasons under given in respect of a finding of class 3. He takes a history of attendance, discussing problems, and it having a therapeutic benefit, but does not address this history in his reason.
It is true that reasons must be read as a whole. But here, the reasons on a critical issue are entirely absent. The Medical Assessor has failed to acknowledge what is clearly a social and recreational activity, that involves Mr Friend attending on his own, multiple times per week, and engaging with others. The Men’s Shed is a social activity that is “age, sex and culturally appropriate”, and it could also be classified as a club or association. Mr Friend is involved to a degree in these activities. He regularly attends without a support person. There is no history recorded that he requires prompting to attend the Men’s Shed, and in fact the history taken of the activity having a “therapeutic benefit” suggests that he attends of his own volition.
The Men’s Shed movement has evolved to provide a social and recreational outlet for men who come together over tasks such as woodworking. The attendee may find the activity to have a therapeutic benefit, but this does not mean that attendance at the Men’s Shed constitutes a form of therapy. Many activities that are properly classed as social and recreational benefit the mental health and well-being of participants.
Woodwork such as that done by the respondent is a recreational activity for many men. In this situation, it is not being done out of necessity or to earn a living. At the Men’s Shed, projects are undertaken in a collaborative environment, and as a result, they also have a strong social component.
Mr Friend also provides a specific history to the Medical Assessor of engaging with others at the Men’s shed. Whilst his activities with his previous friends, including attending the pub, are diminished, he has adapted and now engages in different activities. This is entirely appropriate and within the scope of consideration in the Guidelines. In other words, there is no restriction in considering the social activities that an injured worker previously engaged in – the relevant consideration is the extent to which the worker can engage in social and recreational activities after the injury.
The Appeal Panel accepts the appellant’s submissions. The Medical Assessor has applied incorrect criteria in reaching his conclusion of class 3 impairment in this PIRS. He has failed to consider the history of attendance at the Men’s Shed.
The Appeal Panel are of the view that the correct classification of impairment in this PIRS is class 2.
The new assessments under the PIRS provide an ascending score of 2, 2, 2, 2, 2, 5. This provides a median of 2 and a total of 15. The resulting whole person impairment is 8%.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 November 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: | W26515/24 |
Applicant: | Ronald Keith Friend |
Respondent: | AKD NSW 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 Aman Suman 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) |
| Psychological | 7/2/22 (deemed) | Chapter 11 | 8% | n/a | 8% | |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0
7
0