Aruma Services Ltd v Sherwood

DETERMINATION OF APPEAL PANEL
CITATION:	Aruma Services Ltd v Sherwood [2024] NSWPICMP 757
APPELLANT:	Aruma Services Limited
RESPONDENT:	Jennifer Sherwood
APPEAL PANEL
MEMBER:	Rachel Homan
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	4 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error or incorrect application of criteria in Medical Assessor’s assessment of Class 3 in the psychiatric impairment rating scales of social functioning and concentration, and persistence and pace; whether demonstrable error in the addition for effects of treatment; failure to take into account relevant considerations; Medical Appeal Panel satisfied that Medical Assessment Certificate (MAC) affected by demonstrable error; Class 2 more appropriate in both relevant scales; 2% addition for treatment effect appropriate; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 August 2024, Aruma Services Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
4 July 2024.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Jennifer Sherwood (the respondent) was employed by the appellant as a disability support worker.
On 8 May 2019, the respondent was assaulted by a client in the course of her employment and sustained a psychological injury.
On 5 August 2022, the respondent made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987, relying upon an assessment of permanent impairment made by Dr Graham George on 29 July 2022. Dr George assessed the respondent as having 24% whole person impairment (WPI).
On 21 October 2022, solicitors for the appellant wrote to the respondent enclosing a report from Dr Clayton Smith in which he determined that the respondent’s condition had not yet reached maximum medical improvement.
Proceedings were commenced in the Personal Injury Commission (Commission) and the medical dispute was referred to the Medial Assessor. The Medical Assessor issued a Medical Assessment Certificate (MAC) on 23 March 2023, in which he agreed that the respondent had not yet reached maximum medical improvement.
Subsequently, Principal Member Harris issued a Certificate of Determination on
27 April 2023, in which he determined that the degree of permanent impairment resulting from injury was not fully ascertainable. Principal Member Harris directed that the proceedings could be restored when the respondent had attained maximum medical improvement.
On 14 October 2023, Dr George prepared a further report in which he determined that the respondent’s psychological condition had reached maximum medical improvement. The respondent was again assessed as having 24% WPI resulting from the injury.
On 23 April 2024, the respondent’s solicitor wrote to the Commission attaching Dr George’s supplementary report. The respondent requested that the proceedings be restored in accordance with Principal Member Harris’ Certificate of Determination.
The appellant lodged an Application to Admit Late Documents on 13 May 2024, which attached, amongst other things, a Desktop Investigation Report from Lee Kelly Investigations dated 7 December 2023, a Golf NSW article about a “Chip & Sip” women’s golf program in which the respondent was quoted, and a report from psychologist, Dr Yajuvendra Bisht, dated 29 January 2024. In his report, Dr Bisht made an assessment of 6% WPI resulting from the injury.
The matter was again referred to the Medical Assessor, who issued the MAC which is the subject of this appeal.
The Medical Assessor found the appellant had reached maximum medical improvement. The Medical Assessor made an assessment of 19% WPI. That figure was reached after adding 2% WPI for “moderate benefit from treatment”. In his assessment of the Psychiatric Impairment Rating Scale (PIRS) categories, the Medical Assessor relevantly found that a Class 3 was appropriate in the scales of “Social Functioning” 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 the Appeal Panel considered it had sufficient material before it on which to determine the 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.
The respondent provided a brief written statement in which she indicated that the account of her injury set out in the report of Dr George dated 29 July 2022 was true and correct.
In his report of that date, Dr George recorded that the respondent was born in Rylstone and was living in Newcastle. The respondent had been in a de facto relationship for over four years. The respondent had separated from her partner, although they had remained living under the same roof for the last 18 months. The respondent had two adult daughters from a previous marriage, one living in Bathurst and the other on the Central Coast.
Dr George indicated that on 8 May 2019, the respondent was assaulted by a schizophrenic patient in a group home where she was working.
The respondent came under the care of her general practitioners and a psychiatrist,
Dr Bhandari. The respondent had also been under the care of psychologists, Mr Rob Wainwright and Ms Jodie Kerr for the past three years.
The respondent reported taking Sertraline for two and a half years but, due to unwanted side effects, her psychiatrist had changed her to a novel antipsychotic/antidepressant, Latuda 60mgs daily.
The respondent’s psychological treatment had included cognitive behavioural therapy emphasising anxiety management as well as meditation-based therapy. She had engaged in a post-traumatic stress disorder course and a dialectical behaviour therapy (DBT) course on two occasions.
The respondent reported improvements in her sleep on Latuda and recent improvements in appetite. The respondent continued to struggle with her mood, experienced acute anxiety at times and appeared to describe periods of dissociation.
Dr George diagnosed chronic post-traumatic stress disorder and major depressive disorder. Dr George described the respondent’s treatment for her injury over time as “appropriate”.
In assessing impairment, Dr George assigned a Class 3 to the PIRS categories of “Social Functioning” and “Concentration, Persistence and Pace”, commenting:
“SOCIAL FUNCTIONING: There has been severe strain in all relationships. She has become more socially withdrawn. She is separated under the same roof with her current partner. This has been the case for 18 months. Class 3.
CONCENTRATION, PERSISTENCE AND PACE: She indicated, “I have thrown books in the bin because I just cannot read them”. She can lose track of conversations. She finds it hard to retain information. Class 3.”
Dr George made no additions or deductions in his assessment.
Dr Clayton Smith prepared a report for the appellant on 10 May 2022, in which he took a history of the injury and subsequent treatment which was consistent with the other evidence. Dr Smith gave the opinion that the respondent’s condition had not yet reached maximum medical improvement, commenting,
“Ms Sherwood's condition is improving. She has had comprehensive evidence-based treatment for her condition and has improved. I do not consider that she has reached maximum medical improvement at this point. She is contemplating a return to work and is considering volunteer work. There is a good chance that with vocational rehabilitation her function will improve by more than 3% whole person impairment over the next twelve months. She has also recently settled on a new medication regime.”
In a supplementary report dated 31 August 2022, Dr Smith was asked to comment on
Dr George’s report. Dr Smith maintained his view that the respondent was yet to reach maximum medical improvement. Dr Smith said,
“She has begun to resume her activities of daily living as her depressive symptoms have improved. She is motivated to return to work but is lacking in confidence and is able to participate in a limited graded return to work plan with appropriate vocational rehabilitation and support.
The ratings of whole person impairment by Dr George are inconsistent with the functional history provided by Ms Sherwood to me, particularly the assessments of self-care and personal hygiene, social and recreational activities, social functioning and employability.”
Dr George prepared a supplementary report on 14 October 2023 after reviewing the respondent via teleconference on 27 September 2023.
Dr George recorded that the respondent continued to live in a “semi-de facto relationship” with her partner, noting,
“…at this point in time, she is in a relationship “of sorts” with her partner, with whom she indicated that she had, previously, separated under the same roof.”
Dr George noted that the respondent had ceased seeing her psychiatrist in March 2023 but continued to see a psychologist, Ms Lisa Millar, on a fortnightly basis. The respondent was about to undertake an Eye Movement Desensitization and Reprocessing (EMDR) course with Ms Millar.
The respondent was getting approximately 10 hours of sleep per night which she attributed to taking the antidepressant, Vortioxetine, 5mgs daily in combination with Lurasidone, 20mgs daily. The respondent reported that “at some level” this combination of medicines seemed to be helping her.
The respondent’s mood was reasonable but she was aware of panic attacks from time to time. The respondent’s alcohol intake had increased and Dr George additionally diagnosed an alcohol use disorder.
Dr George made an assessment of permanent impairment which remained at 24% without any deductions or additions. Dr George again assigned a Class 3 to the PIRS categories of “Social Functioning” and “Concentration, Persistence and Pace”, commenting,
“SOCIAL FUNCTIONING: She indicated that there was strain in all her relationships generally due to her symptoms. She still struggles with irritability, a low frustration tolerance and a degree of emotional numbing. She said that she struggles in a relationship with her current partner, from whom she was previously separated. Class 3.
CONCENTRATION, PERSISTENCE AND PACE: She indicated that she could not read and retain information. She loses track of conversations. Even if she attempts to listen to an audio book, she cannot focus her attention on it. Class 3.”
Dr Yajuvendra Bisht was qualified by the appellant to prepare a report in response to
Dr George’s supplementary report. Dr Bisht took a history of the injury and subsequent treatment consistent with the other evidence. Dr Bisht agreed that the respondent had reached maximum medical improvement and made an assessment of 6% WPI following a 1/10 deduction for a co-morbid non-work related condition.
Dr Bisht assigned a Class 2 to the PIRS category of “Social Functioning”, commenting:
“The client still has a good relationship overall with the family, and partner though is more distant from them. There haven't been any periods of separation Though she sleeps in a different room, but she is not separated from her partner. She attends gatherings with his family and they do many activities together She told me- "I go to the nursing home with him to see his (partner's) father, we visit his mother sometimes. Sometimes we play golf but not very often. Sometimes we go fishing. We do things around the house, like if he is trimming hedges then I will put stuff away. He has a pool, and he always cleans the pool. So, I will go and empty the basket."
A Class 2 was also assigned to the category of “Concentration, Persistence and Pace”:
“The client would be able to do a course, though it would take the client longer to learn the contents as compared to the pre-morbid state. She is able to manage her own finances, has a reasonable level of regularity and independence with self care. She drove to central coast, for Christmas, which was about a 40-minute drive.”
The Factual Investigation Report attached to the appellant’s Application to Admit Late Documents, relevantly noted:
“On 4 August 2023, quotes made by the claimant in an interview with Kassidy Rogan from Golf NSW were published in an article about Newcastle Golf Club's Chip & Sip Program. In the article the claimant stated that she joined Newcastle Golf Club's 'Chip & Sip Program' and that the program "gave me the confidence to play social and competitive golf. It featured all aspects of the game in an interesting and easy-to-understand program. The facilitators were very helpful and respectful towards all of us beginners, giving us the confidence to ask questions enabling us to understand the mechanics of our swings and impacting the ball." The claimant continued "I would not have taken up the game of golf without doing this. It was an absolute pleasure to be part of such a great opportunity to learn the skills of golf."
The report also indicated that the respondent appeared to have provided an online review of a business offering resin art classes, noting:
“In August 2023, the claimant or her namesake, reviewed Allettare Dezigns in Cardiff, Newcastle stating "Great class, had an amazingly time learning about resin art. Very relaxed environment, lovely teacher'' indicating that she completed a resin art class with them.”

Medical Assessment Certificate

The Medical Assessor noted that the respondent was a 62 year old woman, born in Australia, with two adult children, living with her former partner.
The Medical Assessor took a history of the injury that was broadly consistent with the evidence before him.
The Medical Assessor noted that the respondent had seen three psychologists over the years, which the respondent reported “… was mildly helpful with being taught anxiety management skills, such as breathing skills.”
The respondent had seen a psychiatrist since 2020 but had stopped a year ago as he said she had reached “maximum treatment”.
With regard to medication, the Medical Assessor noted:
“She had previously been on sertraline since the injury, which she had found alright in helping her symptoms, but it caused a tic and bruxism and emotional numbing, so she ceased it. She said she is currently on Latuda 40mg for three years, and Brintellix 5mg for 2 years, and she has found it of moderate benefit with stabilising her mood and sleep.”
The respondent reported seeing her general practitioner every month and her current psychologist every two to three weeks.
With regard to her present symptoms, the Medical Assessor noted:
“She said she feels depressed often, and she said she can enjoy drinking wine. She has not been seeing her friends. She said she has not been to golf since April, and she said she struggled to enjoy it then.”
The respondent reported feeling detached from friends and family and having poor concentration.
Under the heading, “Social activities/ADL” the Medical Assessor recorded that the respondent’s children lived in Brisbane and Bathurst. The respondent had ceased a relationship with her former partner, Derrick, and for the past two years they were just friends. The Medical Assessor wrote:
“Since the subject injury, she said her relationship with Derrick has been more distant, and they are now just friends for the past two years, without intimacy, as he has described her mood as being “up and down”. She said her relationship with her children is now distant, and they explained it as her personality having “changed”. She also doesn’t see her grandson now.
Prior to the subject injury, she said she had many friends, and she would see them each weekend with them for dinner and drinks. She went to Yoga with one friend and have coffee and go to the movies with other friends.
Since the subject injury, she said she has one friend, but she has moved away a year ago. She said she has another friend she interacts with on Facebook. She said she occasionally sees her friend every few months, when her friend visits, and they will have coffee at a café and have a chat. She said she had been playing golf regularly, but she has not played in three months, as she struggles with keeping the score. She said she had played the Chip and Sip structure at Golf, which has now ceased. She has tried playing Bingo alone but could not keep up with the Bingo person. She said she cannot engage in much activity now as she no longer has an income and so she cannot afford to engage in many activities.”
With regard to concentration, the Medical Assessor reported:
“Prior to the subject injury, her concentration was good, and she was able to read books and courses. She was able to sustain her concentration for up to a couple of hours.
Since the subject injury, she said her concentration has been poor, and she cannot read up to 5-8 minutes and she has difficulties retaining information.”
The Medical Assessor recorded his findings on examination, noting that the respondent spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody. The respondent was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.
The Medical Assessor diagnosed post-traumatic stress disorder, persistent depressive disorder and alcohol use disorder.
The Medical Assessor referred to the reports of Dr George dated 14 October 2023 and
Dr Bisht dated 29 January 2023 and said his assessment was more aligned with
Dr George, and substantially different to Dr Bisht.
In the PIRS rating form, the Medical Assessor assigned a Class 3 for the “Social Functioning” scale, explaining:
“Since the subject injury, she said her relationship with Derrick has been more distant, and they are now just friends for the past two years, without intimacy, as he has described her mood as being “up and down”. She said her relationship with her children is now distant, and they explained it as her personality having “changed”. She also doesn’t see her grandson now.
Since the subject injury, she said she has one friend, but she has moved away a year ago. She said she has another friend she interacts with on Facebook. She said she occasionally sees her friend every few months, when her friend visits, and they will have coffee at a café and have a chat. She said she had been playing golf regularly, but she has not played in three months, as she struggles with keeping the score. She said she had played the Chip and Sip structure at Golf, which has now ceased. She has tried playing Bingo alone but could not keep up with the Bingo person. She said she cannot engage in much activity now as she no longer has an income and so she cannot afford to engage in many activities.
As she has lost some friends, and has been less intimate and no longer in a relationship with her previous partner, though they remain in an amicable situationship, she has moderate impairment.”

The Medical Assessor assigned a Class 3 for the “Concentration, Persistence and Pace” scale, commenting:
“Since the subject injury, she said her concentration has been poor, and she cannot read up to 5-8 minutes and she has difficulties retaining information.
She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.
As she has poor concentration, but not so severe that it would be easily observed in a brief conversation, she has moderate impairment.”
The Medical Assessor made an assessment of 19% WPI, from which a 1/10 deduction was made for pre-existing impairment, leaving 17% WPI. To this, the Medical Assessor added 2% WPI, explaining, “there is moderate benefit from treatment, so an adjustment for effect of treatment by 2% is reasonable.”

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 made a demonstrable error or applied incorrect criteria by:
(a)    finding that there was a Class 3 in the PIRS scale, “Social Functioning” when a Class 2 was more appropriate;
(b)    finding that there was a Class 3 in the PIRS scale, “Concentration, Persistence and Pace” when a Class 1 or 2 was more appropriate, and
(c)    assigning 2% WPI for the “effects of treatment”.
The appellant submitted that the Medical Assessor provided no actual explanation or comment as to why he assigned 2% WPI for the effects of treatment.
The history recorded by Medical Assessor indicated that the respondent considered her psychological treatment had been “mildly helpful” and her Sertraline prescription “alright” in helping her symptoms although she had ceased it due to unwanted side effects. The respondent’s current prescriptions had been of “moderate benefit” in stabilising her mood and sleep. The respondent had stopped seeing her psychiatrist as he said she had reached maximum treatment.
The appellant submitted there had not been “substantial or total elimination” of impairment. The appellant further submitted that there was no evidence of “effective long term treatment”, which if withdrawn would result in the respondent reverting to her prior level of impairment. The Medical Assessor had failed to provide proper reasons for the 2% addition.
In relation to the “Social Functioning” scale, the appellant submitted that the Medical Assessor failed to take into account relevant material, which, if properly reviewed, would not have permitted a Class 3 assessment. The appellant submitted, in particular, that the history recorded by the Medical Assessor indicated that changes in the respondent’s relationships were the result of geographical limitations rather than the injury. The history indicated that the respondent had been able to maintain relationships with a close friend and her former partner.
Furthermore, having regard to the class descriptors in the Guidelines, there was no evidence of “severely strained relationships”, domestic violence or other circumstances which would warrant a Class 3 assessment. The appellant noted that the history recorded by Dr Bisht was that the respondent still had a good relationship with her family and partner, overall, although was more distant from them.
In relation to the “Concentration, Persistence and Pace” scale, the appellant submitted that the Medical Assessor failed to give proper regard to his own observations on examination. There was a clear conflict between the respondent’s reported symptoms and the Medical Assessor’s own observations which was not addressed or explained.
The appellant further submitted that the Medical Assessor failed to give proper consideration to the evidence in a news article that the respondent had found a “Chip & Sip” golf program had given her the confidence to play “social and competitive” golf. The evidence indicated that the respondent had played golf for at least six months. In overlooking this evidence, the Medical Assessor fell into demonstrable error and incorrectly categorised the respondent in Class 3.
The respondent opposed the appeal, submitting that the appellant’s submissions sought to “re-imagine the findings demonstrated on the record of the MAC to cavil with the PIRS scores”.
The respondent referred to the Oxford English Dictionary definition of “substantial” in terms of treatment effect and submitted that the history supported a finding that the respondent’s treatment had a “real and of substance” effect.
The respondent submitted that the Medical Assessor’s assessment of social functioning was consistent with the history of a breakdown of the respondent’s intimate relationship with her partner, Derrick, the distancing of her children, as they described her personality “had changed”, not seeing her grandson and various other instances of social withdrawal. The respondent submitted that the appellant’s submissions were misleading and erroneous in suggesting that Dr Bisht’s assessment should be preferred.
With regard to the assessment of “concentration, persistence and pace”, the respondent submitted that the fact that she was able to follow the sequence of questions posed during the assessment, did not mean that she could, therefore “follow complex instructions”. The reported symptoms were consistent with the Medical Assessor’s assessment.
Further, the respondent’s submitted that the appellant’s lay opinion as to the necessary concentration to swing a golf club should be rejected. The respondent’s evidence was that she struggled with keeping the score. There was no substance to the appellant’s submissions.

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.
In Tasevski v Westpac Banking Corporation [2024] NSWSC 41, Schmidt AJ, referring to the High Court decision in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, commented on the meaning of the term, “demonstrable error”:
“Gleeson JA explained that ‘demonstrable error’, a term which is not defined, is intended to convey the degree of strictness of scrutiny to which the disputed assessment may be subjected. As such, a finding of ‘error alone is not sufficient’. The error must be ‘material’ and apparent in the certificate, although there is no limit on the material to which the Panel may have regard when assessing whether the certificate ‘contains’ a demonstrable error: at [77]-[78].
An error is also not demonstrable merely because the Panel disagrees with the assessor’s opinion: at [87]. An error for which there is no information or material to support the finding made, rather than a difference of opinion, will establish a demonstrable error.”
Relevantly to this appeal, Schmidt AJ noted the decision in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 and commented:
“It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor’s conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”
The Appeal Panel has reviewed the history recorded by the Medical Assessor, his findings on examination, the evidence before him and the reasons for his conclusions.

Social functioning

The Appeal Panel is satisfied that there was a demonstrable error in relation to the Medical Assessor’s assessment of the “Social Functioning” scale.
Table 11.4 of the Guidelines provides that a Class 2 assessment in this scale would be appropriate in the following circumstances:
“Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
A Class 3 assessment is appropriate where:
“Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The appellant submits that the Medical Assessor fell into error by failing to have regard to the evidence of geographical reasons for the distance in the respondent’s relationships and assigning a Class 3 when there was no evidence of “severely strained relationships”. The appellant submits that the Medical Assessor failed to give due regard to the nature of the respondent’s relationships at the time of his assessment.
The respondent submits that the appellant’s submissions ignored the findings of a breakdown in her relationship with Derrick, the distancing of her children as her personality had changed, social withdrawal and not seeing her grandson.
The Appeal Panel finds that the Medical Assessor’s task was to make an assessment of the respondent’s impairment as she presented on the day of the assessment. While there was evidence that the nature of the respondent’s relationship with Derrick had changed several years earlier, the evidence indicated that they continued to co-habit and maintained an amicable relationship at the time of the assessment.
The Appeal Panel also finds that the Medical Assessor did not give appropriate consideration to the contribution of geographical distance between the respondent and her daughters and her friend who had moved away in considering the nature of her relationships with them. The evidence suggested that the physical separation between the respondent in Newcastle, and her daughters in Bathurst and Brisbane could account for the “distance” in their relationship. The evidence suggested that the respondent had been seeing her close friend less often because she had moved away, however, they continued to catch up every few months, have coffee and have a chat.
The history recorded by Dr Bisht was that the respondent had a good relationship overall with her family. The respondent engaged in activities with her partner and visited his parents.
The Appeal Panel is satisfied that the Medical Assessor erred by failing to address these relevant considerations in making his assessment.
Alternatively, the Appeal Panel agrees that the Medical Assessor erroneously applied the Guidelines in making his assessment.
There was no evidence to suggest that the respondent’s relationships with her family and close friend were “severely strained” at the time of the assessment. There was no evidence of separation, domestic violence or the cessation of those close relationships.
The Appeal Panel noted the respondent’s changed circumstances in her primary relationship. It is common for people with mental health struggles to lose libido and sexual intimacy and this cannot be considered unusual in someone over the age of 60. However, the respondent continues to live with her partner several years after the onset of her condition.
The Medical Assessor described the respondent’s relationship with her partner as “more distant, and they are now just friends for the past two years, without intimacy…”. The respondent explained to Dr George on 14 October 2023 that she was in a “relationship of sorts”, in which she “struggles”. In July 2022, she described them as “separated under the same roof.” In January 2024, Dr Bisht noted, “The Client still has a good relationship overall with the family, and partner though is more distant from them”.
The respondent has demonstrated that she can maintain a relationship over an extended period although there is strain. They remain amicable and supportive of each other. They have not ceased living together, and there has not been domestic violence. The Appeal Panel accepts the respondent’s relationship with her partner has changed but it remains intact.
While the Appeal Panel has noted the examples of social withdrawal described in the history and accepts there has been a loss of some friendships. Considering the material as a whole, the Appeal Panel finds that the evidence before the Medical Assessor was more consistent with a Class 2.

Concentration, persistence and pace

The Appeal Panel is further satisfied that there was a demonstrable error in relation to the Medical Assessor’s assessment of the “Concentration, Persistence and Pace” scale.
Table 11.5 of the Guidelines provides that a Class 2 assessment in this PIRS scale would be appropriate in the following circumstances:
“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.”
A Class 3 assessment is appropriate where:
“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 submits that the Medical Assessor fell into error by failing to take into consideration evidence attached to the appellant’s Application to Admit Late Documents about the respondent’s participation in a Chip & Sip golf program, as well as his own observations of the respondent during the examination.
The Appeal Panel accepts that the evidence regarding the respondent’s participation in the golf program was relevant to the assessment of this scale. The Guidelines required the Medical Assessor to consider the respondent’s capacity to participate in courses, follow instructions and focus on intellectually demanding tasks.
Although the Medical Assessor was clearly aware that the respondent had played golf, and had ceased doing so, the evidence in the Golf NSW article indicated that the respondent had participated in a course, which involved weekly lessons for six months, for an hour each lesson. The course enabled the respondent to understand the mechanics of her swing and impacting the ball. It suggested that the course had enabled the respondent to play social and competitive golf.
The failure to address this relevant evidence involved demonstrable error on the Medical Assessor’s part.
The Medical Assessor noted the subjective difficulties the respondent claimed, commenting, “She said her concentration has been poor, and she cannot read up to 5-8 minutes and she has difficulties retaining information”. However, the Medical Assessor also noted that objectively, during the assessment, “She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.”
Dr George, on 14 October 2023, said, “She indicated that she could not read and retain information. She loses track of conversations. Even if she attempts to listen to an audiobook, she cannot focus her attention on it.”
Psychiatrist Dr Yajuvendra Bisht also noted the respondent’s subjective difficulties with concentration but stated, “Cognitively, she able to provide reasonably detailed answers to my questions with minor prompting. Her short-term memory was not impaired. Her abstract thinking was not impaired.”
The report from Lee Kelly Investigations, on 7 December 2023, noted the respondent’s participation in Newcastle Golf Club’s ‘Chip & Sip Program’, which the respondent had claimed;
“…gave me the confidence to play social and competitive golf. It featured all aspects of the game in an interesting and easy-to-understand program. The facilitators were very helpful and respectful towards all of us beginners, giving us the confidence to ask questions enabling us to understand the mechanics of our swings and impacting the ball … I would not persistence and have taken up the game of golf without doing this. It was an absolute pleasure to be part of such a great opportunity to learn the skills of golf.”
The Lee Kelly Investigations report also mentioned the respondent’s participation in a resin art workshop, about which the respondent apparently commented, “Great class, had an amazingly time learning about resin art. Very relaxed environment, lovely teacher'' indicating that she completed a resin art class with them.”
The Appeal Panel considers these activities are equivalent to a basic retraining course in which the respondent has been able to engage with attention, learn new skills and persist to completion.
Taking into account all of the material, in the Appeal Panel’s assessment, a Class 2 for this scale was more appropriate.

Effects of treatment

The Appeal Panel was satisfied that there was a demonstrable error in relation to the Medical Assessor’s addition of 2% WPI for the effects of treatment.
Paragraph 1.32 of the Guidelines states:
“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 impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart.”
Paragraph 11.8 of the Guidelines further states:
“Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”
Neither Dr George nor Dr Bisht made any addition for the effects of treatment in their assessments. The only explanation given in the MAC for the addition was the comment, “there is moderate benefit from treatment, so an adjustment for effect of treatment by 2% is reasonable”.
The appellant submits, and the Appeal Panel accepts, that before an addition for the effects of treatment can be made, the Guidelines require a determination that “effective long-term treatment” of the injury has resulted in “apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn”.
While the MAC provided an adequate summary of the treatment received by the respondent, the Medical Assessor did not on the face of the MAC address the question of whether the treatment was “effective” or address its effect on the respondent’s permanent impairment.

The respondent has submitted that the history taken by the Medical Assessor supported an addition for treatment effect. The respondent’s submissions do not, however, address the alleged failure to consider the threshold questions provided for by the Guidelines.
The Appeal Panel is satisfied that the Medical Assessor has fallen into demonstrable error by failing to ask the questions identified in Paragraph 1.32 of the Guidelines. Alternatively, there is a demonstrable error in the failure to provide adequate reasons for the Medical Assessor’s opinion that paragraph 1.32 permitted an addition for treatment effect.
Having found error, the Appeal Panel has considered this question for itself.
The evidence before the Medical Assessor indicated that the respondent had undergone an appropriate, evidence based regime of treatment over a period of approximately four years at the time of the assessment. The treatment regime consisted of ongoing, regular psychological treatment, which had, in the past, included EMDR, a post-traumatic stress disorder course and DBT.
The respondent was also under the care of a psychiatrist, Dr Pavan Bhandari, for approximately three years. During this period the respondent was prescribed varying doses of Sertraline and other medications with some unwanted side effects before settling on her current medication regime.
In his most recent report, Dr Bhandari reported that since commencing Lurasidone the respondent’s emotional state had been relatively stable and her alcohol use limited. It was noted that the respondent felt her psychological treatment regime had stabilised her condition. The respondent’s affect was noted to be reasonably reactive, although she became anxious at times during the interview. Her mood did not appear depressed.
Dr Bhandari said the respondent’s care had been transferred to her general practitioner as it was felt there was little further that could be offered by current psychiatric treatment.
Dr Bhandari noted, however, that it was imperative that the respondent continue to engage with psychological treatment.
The treatment history recorded by the Medical Assessor was broadly consistent with the other evidence. The respondent reported a “moderate benefit” with stabilisation of her mood and sleep with the current medication regime. The respondent’s psychological treatment was described as “mildly helpful”. There were no plans for treatment escalation or medication changes.
In contrast, the early treatment reports from the respondent’s psychologists and
Dr Bhandari recorded that she had been highly anxious, easily overwhelmed, emotionally distressed, noise intolerant, afraid in her own home, fearful of others in her personal space, experienced disturbed sleep with intrusive dreams and nightmares, suffered panic attacks and had experienced suicidal thoughts. Dr Bhandari noted marked avoidance behaviours in early 2020 to the point where the respondent was almost agoraphobic.
The Appeal Panel finds that the evidence supports a finding that the respondent’s treatment, particularly the medication regime prescribed by her psychiatrist, over a period of four years, had been effective.
The Appeal Panel is also satisfied that the respondent’s treatment had resulted in a substantial, albeit not total, elimination of permanent impairment.
The Appeal Panel’s assessment of impairment is markedly different from Dr George’s initial assessment approximately two years ago and is consistent with Dr Bisht’s more recent assessment. Although Dr George’s more recent assessment remained at 24%, the Appeal Panel has explained above why it considers the respondent’s current impairment to be less.
Furthermore, the Appeal Panel agrees that with withdrawal of treatment, the respondent’s condition would likely deteriorate and her impairment would be greater.
The Appeal Panel considers the 2% addition made by the Medical Assessor was appropriate and has not disturbed this aspect of the MAC.

Summary

In view of the Appeal Panel’s findings above, the PIRS scores become:

Score class Median

= 2

Aggregate Score Impairment						Total	%
2	+2	+2	+2	+2	+5	=	15
Impairment (%WPI) from Table 11.7							8%
Less pre-existing impairment							1/10
Plus effects of treatment							2%
Final impairment (% WPI)							9%

The Medical Assessor made a deduction of 1/10 under s 323 of the 1998 Act but this was not the subject of complaint on appeal and has not been disturbed.
The final whole person impairment assessment is 9%.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 July 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:	W7736/22
Applicant:	Jennifer Sherwood
Respondent:	Aruma Services Limited

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychiatric and psychological disorders

8 May 2019

Chapter 11

pp 54-60

Chapter 14, pp 361-365

1/10^th

7+2% for effects of treatment

Total % WPI (the Combined Table values of all sub-totals)

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.

[2024] NSWPICMP 757

4 November 2024