Andrews v Aligned Community Care Pty Ltd
[2025] NSWPICMP 748
•29 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Andrews v Aligned Community Care Pty Ltd [2025] NSWPICMP 748 |
| APPELLANT: | Beth Andrews |
| RESPONDENT: | Aligned Community Care Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 29 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from 8% assessment for psychological injury; whether error made in psychiatric impairment rating scale (PIRS) categories of social and recreational activity and/or concentration, persistence and pace; whether Table 11.2 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) descriptors limited to activities outside the home and with other participants; whether reasoning adequate with regard to Table 11.5 of the Guidelines; Held – social and recreational activities include solitary activities such as dog walking and home based activities such as gardening; Botha v Secretary, NSW Department of Customs Service, and Diaz v Sydney International Container Terminals Pty Ltd considered and relied on; submissions regarding concentration, persistence and pace assumed a class 2 rating (when a class 3 rating given in the MAC); a higher class 4 rating not available on the facts; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 June 2025, the appellant, Beth Andrews, lodged an Application to Appeal lodged an Application to Appeal Against the Decision of a Medical Assessor . The medical dispute was assessed by Dr Timothy Berry, a Medical Assessor , who issued a Medical Assessment Certificate (MAC) on 9 May 2025.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 17 April 2025, this matter was referred for a WPI of psychiatric/psychological disorder, deemed to have happened on 28 May 2023.
Ms Andrews was employed as a support worker who suffered psychological injury through difficulty encountered whilst employed with a respondent, as explained by the Medical Assessor in the history he took.
He assessed 9 % WPI, from which he deducted 1/10, leaving a subtotal of 8%.
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 further medical examination because no error was established.
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 which have been considered below by the Appeal Panel.
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 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 MAC
With regard to Ms Andrews’ social activities of daily living, the Medical Assessor recorded:[1]
“She tends to stick to the same routine most days. In the morning, she walks her dog. She may link the walk with any chores she needs to complete. For example, if she has to go to the shops, she will walk the dog there. Once home, she attends to cleaning jobs as best she can in the afternoon. She might sit in her garden or undertake some garden related activities. She prefers being outdoors. She attends regular AA meetings.
…
Her concentration remains reduced. She does not read. She does not watch much television. She tends to turn the television on and off repeatedly. She is no longer able to multitask. She reports poor short term memory.”
[1] Appeal papers pages 239-240
In discussing his findings on mental state examination, at [5] of the MAC, the Medical Assessor said:
“…She was fairly easy to engage in the review. She was appropriate and calm throughout. Her speech was fluent and spontaneous. There was some mild psychomotor slowing. No agitation. She sometimes struggled to keep track during the assessment which lasted about 90 minutes. Her affect was downcast and flat. She had depressed mood. There was no formal thought disorder. No psychotic symptoms were elicited or observed. She has ongoing thoughts of suicide with no current plan or intent to end her life. "
As to consistency of presentation, the Medical Assessor said:
"...Ms. Andrews was a little unclear on details at times, but appeared to be an open and honest historian. I would attribute minor inconsistencies to concentration deficits which were evident.”
The Medical Assessor considered the reports of the opposing experts at [10c] of his report.
With regard to the opinion of Dr Kahn dated 24 April 2024, he said relevantly:[2]
“Class 3 – Dr Khan noted Ms Andrews socializes with friends she has made through AA but does not otherwise engage in social and recreational activities and prefers to isolate at home. My view is that class 2 is more appropriate - she is walking her dog, sometimes with a friend, and gets out into the garden. She was able to attend her daughter's wedding”.
[2] Appeal papers page 243.
With regard to Dr Khan's assessment regarding concentration, persistence, and pace, the Medical Assessor said:
“Class 3 - Dr Khan noted Ms Andrews' struggles with attention and concentration. She cannot focus on tasks like reading and cannot retain information. She is easily distracted and unable to multitask and her memory is impaired.”
In considering the opinion of the respondent’s expert Dr Anand dated 24 July 2024, relevantly the Medical Assessor said regarding social and recreational activities:
“Class 2-Dr Anand noted Ms. Andrews looks after four animals and walks her dogs. She attends AA meetings weekly. She maintains contact with her sponsor. She bakes. She pushes herself to get outside as she feels better when she does so”.
With regard to concentration, persistence, and pace, the Medical Assessor noted that
Dr Anand's view was:“Class 2-3. She has been able to get back into reading. She struggles with concentration and short term memory and can find it hard to retain information. Ms Andrews reports significant concentration deficits which have been ongoing since her injury. These were evident during my assessment and I regarded class 3 to be more severe".
The reasons given by the Medical Assessor in the psychiatric impairment rating scale (PIRS) rating form pursuant to Table 11.8 of the Guides, will be discussed in our reasons below.
SUBMISSIONS
The appellant
Ms Andrews confined her appeal to the rating assessed in the social and recreational activities, and concentration, persistence and pace categories.
Social and recreational activities
With regards to the Medical Assessor's findings in the social and recreational activities category, Ms Andrews referred to the reasons given by the Medical Assessor for the class 2 rating that he assigned. Ms Andrews then kindly reproduced the relevant descriptors for class 2 and 3 in this category. She referred to the finding by the Medical Assessor that she was unable to engage in social activities and had been significantly impaired and was increasingly socially withdrawn.
Ms Andrews noted that the Medical Assessor said that her psychiatric symptoms “severely” limited her ability to engage in social activities.
Ms Andrews submitted that the category was concerned with the extent to which “the injury has impaired the ability to go out in public and attend and be actively involved in events where there are other people participating”.
Ms Andrews submitted that this category was not concerned with hobbies unless they involved such social engagement.
She submitted that a class 2 rating therefore would cover someone who went to events such as a football game or to a club without a support person but did not become actively involved.
Ms Andrews submitted that it was improbable on the evidence before the Medical Assessor that she could even occasionally attend a social or public event. She conceded that walking her dog might be considered recreational but it did not qualify because it did not engage with other members of the public. She submitted that dog walking was a solitary activity and was therapeutic.
Similarly, Ms Andrews submitted that while she got some pleasure from being out in the garden, that activity did not qualify as being social recreational activity because it was done at home and not in public.
It followed, it was argued that the Medical Assessor had misconceived the parameters of this category. Ms Andrews admitted that there was not enough to show that she was engaging in recreational activities because if what she was doing was solitary and not in a social setting, they could not be said to be “social”.
Ms Andrews also referred to her attendance at Alcoholic Anonymous meetings. She submitted that that attendance too did not qualify as a recreational activity because it was again of a therapeutic nature.
Again, it was submitted that the Medical Assessor had misunderstood the purpose of the category.
Concentration persistence and pace
Ms Andrews referred to the findings by the Medical Assessor in the PIRS rating form and also to comments he made when considering the report of Dr Anand, particularly his comment that a class 3 was more appropriate than the class 2 rating assessed by
Dr Anand.Ms Andrews referred to the findings by the Medical Assessor on mental state examination and compared the Medical Assessor's conclusions with the descriptors for class 3 and class 4, which she kindly set out.
Ms Andrews referred to the comments by the Medical Assessor that she struggled to maintain focus on the conversation during the mental state examination. A class 4 rating should have been given, Ms Andrews argued, because of the “obvious deficits and the inability to maintain any focus or concentration. to be able to read or watch television for any length of time".
Ms Andrews submitted that the Medical Assessor had “ignored relevant evidence before him and inappropriately assigned a Class 2 [sic]…”.
Respondent
The respondent referred to many of the cases which we discuss below in furtherance of a submission that the clinical observations of a Medical Assessor were significant, and that to show a reviewable error, an appellant had to demonstrate more than a mere difference of opinion, about which reasonable minds might differ.
Social and recreational activity
So far as Ms Andrew's attendance at AA meetings was concerned, the respondent submitted that there was indeed a social aspect to such attendances, as was confirmed by her expert, Dr Abdal Khan.
The respondent also noted the finding by the Medical Assessor that Ms Andrews did walk her dog, sometimes with a friend, and that she was able to attend her daughter's wedding.
The respondent submitted in effect, that the finding was open to the Medical Assessor on the evidence and the detailed reasoning that he had given.
Concentration persistence and pace
The respondent noted that the Medical Assessor had found that Ms Andrews “sometimes” struggled to keep track during the 90-minute assessment. It was submitted that that was not a basis for a class 4 rating.
The respondent conceded that Ms Andrews evidently lived alone, but submitted that she did not need any regular assistance from relatives or Community Services.
The respondent referred to the findings regarding the self care and personal hygiene category, where the Medical Assessor noted that Ms Andrews managed living alone without regular support.
The respondent submitted that the reasoning was adequate to explain the classification, and as it followed a clinical assessment and took into account the evidence before him, the finding was open.
DISCUSSION
The psychiatric impairment rating scale (PIRS)
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. 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.
Chapter 11.12[3] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[3] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[4]
[4] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[5] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[6]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[5] [2017] NSWSC 887.
[6] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[7] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[7] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[8] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[8] [2022] NSWSC 929.
Her main hobby is walking her dog. She gets some pleasure from being outside and in her garden. She no longer cooks for pleasure. She has no other regular hobbies. She attends AA meetings. She was able to attend her daughter’s wedding but generally avoids large events.
Social and recreational activities
We note that Ms Andrews has relied on a restrictive interpretation of the descriptors in this category to the effect that the recreational activities, to be relevant, had to be performed in a social setting outside the home. That proposition has not been accepted. Whilst it is correct that the relevant class descriptors are as follows, recent authority has interpreted the Guides as including activities done alone, such as both gardening and dog walking.
The classes are provided by Table 11.2 of the Guides, relevantly:
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.”
In his Table 11.8 PIRS Rating Form, the Medical Assessor’s reasons for his class 2 rating were:
“Her main hobby is walking her dog. She gets some pleasure from being outside and in her garden. She no longer cooks for pleasure. She has no other regular hobbies. She attends AA meetings. She was able to attend her daughter’s wedding but generally avoids large events.”
In Botha v Secretary, NSW Department of Customs Service[9] Stern JA, sitting in the Common Law Division of the Supreme Court, said from 66:
“66 … In these circumstances, the word ‘attends’ in the Medical Assessor’s conclusion as to categorisation on the Social and Recreational PIRS should be read as encapsulating attendance at social activities both inside and outside of the plaintiff’s home.
67. In my judgment, that is entirely consistent with the proper construction of the Social and Recreational PIRS. In particular, consistent with the approach to construction of the Guidelines set out (authorities omitted), it is appropriate to have regard to considerations of text, context and purpose, and to the fact that the Guidelines are not drafted by Parliamentary Counsel. As to text, table 11.2 must be construed having regard to the clear instruction at [11.12] …. and reflected in Garling J’s judgment in Jenkins, that the examples of activities in the tables are “examples only” and that the assessing psychiatrist should consider activities that are usual for the person’s age, sex, and cultural norms. I have also had regard to the fact that, on the Social and Recreational PIRS against Class 1 – no or minor deficit, the drafter has referred to participation in social activities, whereas against Classes 2 and 3 – respectively mild and moderate impairment, the drafter has referred to a worker going out to “such events”. I doubt very much that it was intended that a higher standard of engaging in activities outside of a worker’s house, rather than participation in such activities, was intended as regards Classes 2 and 3, as opposed to Class 1.
68. As to context, it is clear that the aim of table 11.2[10] is to provide a tool for trained psychiatrists to assess a worker’s impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker’s home could be taken into account in making such assessments. …[T]he intention in table 11.2 is not to provide a tool for assessing a worker’s ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational. There is no good reason why such activities would have to occur outside of a worker’s home. …
69. Considerations of purpose point in the same direction. Given that the purpose of the Social and Recreational PIRS is as a tool for trained psychiatrists to assess the functional impact of an injury on a worker’s social and recreational activities, there is no sound reason why a distinction should be drawn between activities within or outside of the home. It is the social and recreational character of the activities that is relevant.”
[9] [2024] NSWSC 781. See also Diaz v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 437 from [100].
[10] [Table 11.2 provides that a psychiatrist who has undergone appropriate training is to conduct an evaluation of psychiatric impairment].
In view of her Honour's dicta, we are unable to accept Ms Andrew's submissions as to the limitations that should be put on this category. Activities such as gardening or walking the dog, even if they were solitary (which does not appear to have been the case all the time) are sufficient activities to be considered in this category.
We are also of the view that Ms Andrews’ regular attendances at AA meetings also carry a social aspect. It is, with respect, nothing to the point if a recreational activity is also therapeutic, and there is no dichotomy between the two concepts. Dr Abdal Khan accepted that view in his report of 14 February 2024, saying:[11]
“….She meets up with friends that she has made through Alcoholics
Anonymous meetings. Otherwise she does not engage in any social and recreational activities…”[11] Appeal papers page 49.
Bearing that interpretation in mind, we find no error with class 2 rating by the Medical Assessor.
Concentration, persistence and pace
Ms Andrews simply relied on the facts as stated by the Medical Assessor in submitting that in view of those facts, a higher class rating than the class 2 that was allocated should have been given. Ms Andrews appeared to overlook that in fact the Medical Assessor gave a class 3 rating. The relevant descriptors for a class 3 and class 4, are set out in table 11 .5 of the Guides.
“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. Concentration deficits, obvious during even brief conversation, unable to live alone, or needs regular assistance from relatives or community services.”
In his Table 11.8 Rating Form, the Medical Assessor gave the following reasons for his class 3 assessment. [12] (We note in passing that Ms Andrews erroneously stated that he had given a class 2 rating),
“She reports significant deficits in concentration and this was evident during the review. She is not reading and does not watch much television. She struggles to focus. She struggles with short-term memory. She sometimes struggles to talk coherently. My view is she would struggle to follow complex instructions.”
[12] Appeal Papers page 248.
Ms Andrews submission, in order to establish error, needed to overcome the advantage that the Medical Assessor had in being able to make his clinical observations in the face-to-face, (by video) assessment.
Ms Andrews submitted that the word “significant” was indicative of a higher class rating. As she was under the misunderstanding that she was dealing with a class 2 rating, we agree that a higher rating would have been required, and indeed a class 3 was given by the Medical Assessor.
The Medical Assessor explained his reasons for finding a class 3 adequately, both in the reasons within Table 11-8, but also in discussing Dr Anand's classification of a class 2, where he agreed with Dr Anand that Ms Andrews reported significant concentration deficits which have been ongoing since her injury. These were evident to the Medical Assessor also, but he regarded them to be class 3.
Moreover class 4 requires that a claimant be so cognitively impaired that they cannot live alone, and that he/she needs regular assistance from relatives or community services. Whilst the descriptors are not strict criteria, her concentration, persistence and pace do not have those deficits. She does live alone, and she does not need regular assistance from family or community services to address the impact of cognitive impairments.
In the result, Ms Andrews was not only not able to demonstrate anything more than a mere difference of opinion about which reasonable minds might differ, but did not identify impairment that necessitated a rating of severe impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2025 should be confirmed.
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