Australian Leisure and Hospitality Group Pty Ltd v Byimira

DETERMINATION OF APPEAL PANEL
CITATION:	Australian Leisure and Hospitality Group Pty Ltd v Byimira [2024] NSWPICMP 436
APPELLANT:	Australian Leisure and Hospitality Group Pty Ltd
RESPONDENT:	Derrick Cyusa Byimira
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	9 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer from psychiatric assessment of 15% whole person impairment; whether Medical Assessor (MA) erred in rating of self-care and hygiene; whether MA erred in rating for social and recreational activities; whether MA had considered all the evidence; whether MA erred in failing to make a deduction pursuant to section 323; the assertion that the MA had not considered the evidence in fact was limited to whether he had adequately considered the employer’s medico-legal expert; employer had to concede that MA considered that expert’s reports; MA’s function discussed; Wingfoot Australia Pty Ltd v Kocak, Jones v Registrar WCC, Bojko v ICM Property Service Pty Ltd applied; presumption of regularity discussed; Held – employer’s reliance on medico-legal expert advice regarding section 323 dismissed as it was based on speculation and without forensic support; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 February 2024, Australian Leisure and Hospitality Group Pty Limited the appellant employer 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 8 January 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 17 November 2023 this matter was referred to the Medical Assessor for assessment of WPI caused by a psychiatric/psychological injury that occurred on 9 January 2019.
Mr Byimira, who was 27 years of age at the time, was employed as a gaming and bar attendant.
On 9 January 2019 Mr Byimira and his manager were robbed by two men at gunpoint and Mr Byimira was threatened with assault with a pool cue. He experienced a gradual decline in his mental state over the next few weeks and sought treatment for the first in early 2021.
The Medical Assessor assessed 15% WPI.

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.
The appellant employer did not seek to have the worker re-examined and in view of the issues as described below, no such re-examination was required.

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 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

The Medical Assessor reported a detailed consideration of Mr Byimira’s symptoms.
When referring to previous or subsequent accidents, injuries or conditions, the Medical Assessor said:[1]
“Mr Byimira reports symptoms of depression in around 2014. He was in year 12 at the time and was struggling with the pressure. He was attending a boarding school on a scholarship and did not want to let anyone down or waste the opportunity he had been given. His school were worried about his safety and asked him to go home for a period.
He saw a psychiatrist and was prescribed medication which he found helpful. He took medication for a couple of months and stopped once he had completed his HSC. He was feeling much better by the time he finished school. He reports no issues with his mental health since then until the robbery.”
[1] Appeal papers page 33.
The Medical Assessor noted that Mr Byimira was born in Rwanda shortly after the genocide of 1994. He noted that Mr Byimira and his mother and siblings moved to Belgium when Mr Byimira was about three. He relocated to Australia once his father had arrived in 2006. He said:
“When I asked Mr Byimira today about the impact of his early years in Rwanda, he reported that he largely became aware of the history of the country through watching news and documentaries. In later years, he would ask his mother some questions. She has never provided many details. He reports the issues in Rwanda did not have a significant impact on his day to day living as a child. He did find it difficult to move schools and learn a new language but broadly managed this.
During psychological therapy in 2023, Mr Byimira had emerging memories of childhood sexual abuse which has left him feeling overwhelmed. Prior to this year, he had no awareness of any childhood sexual abuse. The memories came ‘flooding in’ during a psychological therapy session. He recalls instances while living in Belgium of being inappropriately touched and kissed by a friend of his mother’s.
He is processing this but does not feel it had any impact on his life prior to this year.
When asked about any previous interpersonal issues, difficulties with trust or emotional dysregulation, he does not identify any issues in these areas.”
The Medical Assessor noted the following in considering Mr Byimira’s activities and activities of daily living after noting that Mr Byimira was very active, going to the gym five times a week, listening and creating music and regularly going to restaurants and clubs with friends.
The Medical Assessor said:[2]
[2] Appeal papers page 34.
“Mr Byimira’s activities of daily living are now significantly reduced. He was previously very clean and tidy around the home and liked to help and support his family. Now he is unable to carry out even basic chores without repeated reminders and encouragement from his mother. He appears close to his mother and feels bad that he is not of more help.
He feels he has now become a ‘shadow’ of his former self.
He indicated he can cook basic meals if required. When asked what he meant by a basic meal, he replied toast or boiling an egg.
His grooming has declined. He generally showers once or twice per week after work on
the weekends. His mum prompts him. He tries to brush his teeth once per day. Sometimes he misses a day and his mum comments on his bad breath.
….
His psychologist has encouraged him to walk and he tries to do this. He is not going to
the gym. He is not going out to restaurants. The last social event he attended was at the beginning of the year when he pushed himself to attend the birthday of a close friend.
He has lost contact with a lot of friends because he no longer goes out to social events.
He feels he has become gradually disconnected over the last few years. His relationship with his girlfriend has ended.”
In his summary at [7] of the MAC, the Medical Assessor said relevantly:[3]
“I have considered whether Mr Byimira is also suffering from a major depressive episode.
In my view, he is not. He has low mood but this relates to his ongoing symptoms of PTSD. I was unable to identify any stressors external to the robbery which are causing current psychological symptoms.
He has had some difficulties in regards to his relationship with his father but these are longstanding and he was functioning well prior to the robbery. Emerging memories of childhood sexual abuse do not appear to have caused significant psychological symptoms in and of themselves. His family life in childhood was significantly impacted by war in Rwanda and the need to relocate countries twice. However, he appears to have been able to cope with these pressures well, with one discrete episode of an adjustment disorder while completing his HSC.”
[3] Appeal papers page 35.
The Medical Assessor considered the medical evidence that had been referred to him at [10c] of the MAC. He noted the opinion of Dr Virk and that Dr Virk had diagnosed a major depressive disorder following his first assessment in 2022 as well as the post-traumatic stress disorder that resulted from the subject injury.
In noted that Dr Virk regarded the major depressive disorder as an aggravation of a pre-existing disorder but indicated, as he had already, that Mr Byimira was not suffering from a depressive disorder. He said:[4]
“In my view his current psychological symptoms stem from the robbery he encountered at work in 2019”.
[4] Appeal papers page 37.
The Medical Assessor regarded the psycho-social stresses (“grief following the passing of a previous colleague, family stressors, relationship stressors with his girlfriend”) as not being particularly evident to the Medical Assessor. He said they were a background to Mr Byimira managing to cope with life stressors prior to the robbery.
The Medical Assessor noted that Dr Virk had diagnosed a complex post-traumatic stress disorder (ICD diagnosis) regarding Mr Byimira’s emerging memories of childhood sexual abuse, interpersonal conflict with his friends and separation with his girlfriend. The Medical Assessor disagreed, saying:[5]
“…… Although emerging memories of childhood sexual abuse have understandably been difficult for Mr Byimira to process, and have caused psychological upset, in my view there is insufficient basis for such a diagnosis based on today’s assessment (and my review of the documentation). He does not appear to have had longstanding symptoms consistent with this diagnosis.”
[5] Appeal papers page 37.
As to Dr Virk’s opinion that maximum medical improvement had not been reached, the Medical Assessor said:[6]
“My view is that Mr Byimira has reached maximum medical improvement. He has been under the care of a number of psychiatrists and psychologists. Treatment to date has not been particularly effective but I think a significant change in symptoms is unlikely even with further treatment. On this basis, I think he has reached maximum medical improvement.”

SUBMISSIONS

[6] Appeal papers page 38.

Ground 1 – self care and personal hygiene

The appellant employer submitted that the class 3 rating for this category in the Psychiatric Impairment Rating Scale (PIRS) was inappropriate. It relied on the opinion of its qualified expert, Dr Abdul Virk and his findings in that regard.
The appellant employer kindly referred us to the descriptors in this category for class 2 mild and class 3 moderate impairment.
We were referred to Jenkins v Ambulance Service of New South Wales[7] regarding the necessity for a Medical Assessor to consider all of the evidence before him.
[7] [2015] NSWCA 633.
The appellant employer conceded that the Medical Assessor had engaged with the opinions of Dr Virk at paragraph 10c of the MAC. However, it submitted that the Medical Assessor had failed to demonstrate any engagement with the self-care opinion and history taken by Dr Virk, which was inconsistent with that provided to the Medical Assessor.
The appellant employer said that it seemed that the Medical Assessor had limited his assessment to the history given by Mr Byimira on the day of the assessment. This, it was said, was an error in that the assessment was based on incorrect criteria and a failure to consider the conflicting histories in this category presented in the medical evidence before him. The history more appropriately accorded with a class 2 rating.

Ground 2 – social and recreational activities

The appellant employer submitted that the class 3 rating given by the Medical Assessor was inappropriate. The appellant employer submitted that he did not adequately consider the evidence that Mr Byimira was able to fly independently to the United Kingdom, which the Medical Assessor considered in the travel category in the PIRS. Whilst acknowledging the history taken by the Medical Assessor that Mr Byimira did not do much on that trip apart from spend time with his bereaved relatives, it was submitted that socialising with an extended family following the death of a family member was an age, sex and culturally appropriate activity. The act of flying independently to the United Kingdom required, it was submitted, significant social interaction with his family members.
We were referred to the descriptors for a class 3 impairment rating in this category which included that the claimant would not go out without a support person. Flying independently and internationally without a support person was a significant factor, whether or not it was frequent behaviour, it was argued.
Further, the appellant employer submitted that the disassociation from social events noted by the Medical Assessor was improperly entirely attributed to the subject injury and the Medical Assessor had failed to engage with the entirety of the evidence in doing so.
We were referred to passages from Dr Virk’s report in that regard. Dr Virk had advised that Mr Byimira’s non-work-related psycho-social challenges were having a greater impact on his functioning than the impairment caused by the subject injury.
The appellant employer acknowledged that the Medical Assessor had considered to some extent this material which it reproduced. The difficulty was, it was submitted, that the Medical Assessor did not engage with Dr Virk’s opinion that the reduced social interaction was not due to the subject injury but rather due to the non-work related factors.
In all the circumstances it submitted a class 2 rating was more appropriate.

Ground 3 – s 323

The appellant employer submitted that in accordance with accepted authority a deduction was warranted under this section. We were referred to the “well documented” history of “prior psychological conditions” and the history recorded by the Medical Assessor himself that during psychological therapy in 2023, Mr Byimira had emerging memories of childhood sexual abuse, something of which he had not previously been aware.
These memories, the appellant employer submitted, were said to have “come flooding in” and caused Mr Byimira to remember being inappropriately touched and kissed by a friend of his mother when the family was living in Belgium.
The appellant employer referred to the history taken by the Medical Assessor that when Mr Byimira was at boarding school on a scholarship, the school was worried about his safety and asked him to go home for a period where he saw a psychiatrist and the prescribed medication for one or two months.
The appellant employer noted the findings by the Medical Assessor in that regard, but submitted that Dr Virk took a “pointedly different history” which it reproduced.
The appellant employer submitted that even if that pre-existing condition had been asymptomatic prior to Mr Byimira commencing employment with the appellant employer a deduction could nonetheless be made according to accepted authority.
The appellant employer submitted that a 1/10^th deduction at least should have been applied.

Respondent

Self-care and personal hygiene

Mr Byimira submitted that the appeal in regard to self-care and personal hygiene should not succeed because the Medical Assessor had engaged with the opinion of Dr Virk and disagreed with it.
The basis of the challenge appeared to be that Mr Byimira was able to live independently, as he had to help his mother at times.
Mr Byimira also submitted that the appellant employer had not considered his statement at [13] and [14], which was unchallenged. The same evidence was noted by Dr Samson Roberts, Mr Byimira’s qualified psychiatric expert, prior to the date of the statement. Mr Byimira observed that the Medical Assessor had noted Dr Roberts’ history, and agreed with it.
We were referred to passages from the MAC which Mr Byimira submitted there is ample justification for the rating given.
Mr Byimira also referred to Jenkins.
Mr Byimira submitted that the class 3 rating was appropriate.

Social and recreational activities

Mr Byimira noted the submission that the rating was incorrect because Mr Byimira had travelled independently to the United Kingdom. He submitted that this assertion was merely conjecture, and was not supported by any medical evidence apart from the Medical Assessor’s allusion to it under the “Travel” category.
The relevance of the UK trip, Mr Byimira submitted, was in that category, and it was inappropriate to use this event to rate another PIRS category.
Further, Mr Byimira argued it could not be said that the necessity to travel to a family funeral was a social recreational activity as described in the PIRS. It was not a usual activity that persons would engage on a normal day to day basis.
Mr Byimira noted the submissions by the appellant employer as to the alleged failure by the Medical Assessor to engage with the opinion of Dr Virk. Mr Byimira reproduced portions of the MAC to demonstrate that such was not the case.
We were referred to Jones v Registrar WCC.[8]
[8] [2010] NSWSC 481.

Section 323

Mr Byimira submitted that the assumption on which Dr Virk made his finding about the seriousness of the 2014 incident when he was in year 12 was not supported by the evidence. Dr Virk had accordingly had based his opinion on incorrect fact.
Further, Mr Byimira noted that there was no reference to any contemporaneous medical documentation that there was a pre-existing injury in the years prior to the work injury. There was no medical evidence, he submitted, on which to find that there was a pre-existing condition, let alone an impairment caused by a pre-existing condition to justify the application of this section.
Further, Mr Byimira referred to the consideration by the Medical Assessor of whether Mr Byimira was suffering from a major depressive episode and he differed from the opinion of Dr Virk.
Mr Byimira concluded that the appeal stemmed from reliance on the findings of Dr Virk, whose opinion and indeed whose facts were contrary to those found by the Medical Assessor.

It was submitted that it was not the function of the Medical Assessor to prefer conflicting bodies of evidence.

CONSIDERATION

The PIRS

The PIRS is established as the rating criteria 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[9] 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.”
[9] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[10]
[10] See 11.15-11.21 at Guides p 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[11] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal 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[12]. 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].”
[11] [2017] NSWSC 887.
[12] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[13] 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])…..”
[13] [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 Appeal 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[14] 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).
[14] [2022] NSWSC 929.
The appeal has a fundamental difficulty with its premise. We have been grateful for the careful analysis of the applicable authority, which it can be seen are relevantly referred to above. However, in the final analysis the appellate employer has relied on the reports of its medico-legal specialist Dr Virk to support its assertions that the Medical Assessor did not consider all the evidence.
In Wingfoot Australia Pty Ltd v Kocak[15] the High Court held at [47]:
“…The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[15] [2013] HCA 43.
In Western Sydney Local Health District v Chan[16] Adams J found that a Medical Assessor (or AMS as they were then known) had an analogous task. It follows that a Medical Assessor is not required to comment on every document or opinion that is referred to him. Whilst it is axiomatic that he is required to read the material referred to him, he makes no error if he does not refer to opinions that either have no relevance, or which by their nature do not accord with his opinion. There is a presumption of regularity that applies to administrative decision-makers, of which a Medical Assessor is one. In Jones v Registrar WCC[17] James J said at [50]:
“…There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical. The medical science the second defendant [the Medical Assessor] was applying was not controversial and his reasons were not required to be extensive or detailed.”
[16] [2015] NSWCA.
[17] [2010] NSWSC 481.
James J had earlier referred to the presumption of regularity at [36], adopting the dicta of Handley AJA (Allsop P and Giles JA agreeing) in Bojko v ICM Property Service Pty Ltd[18] at [36]:
“36. The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action..…”
[18] [2009] NSWCA 175.
There is, of course, a requirement by a Medical Assessor to consider the material that is referred to him and accordingly it may be presumed that he/she will have read it. Presumptions are rebuttable, but the evidence relied on by the appellant employer falls far short of doing so. We turn now to each ground raised.

Self-care and personal hygiene

The appellant employer submitted that the Medical Assessor fell into error in assessing a class 3 rating in this category. Table 11.1 of the Guides provides, relevantly:
“Class 2 – Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 – Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
In his Table 11.8 PIRS Rating Form, the Medical Assessor stated:
“[Mr Byimira’s] self-care has deteriorated. He can cook very basic meals. He is unable to undertake cleaning and chores without prompting and is doing much less to help his mum than previously. I think he would struggle to manage without the ongoing support of his mother.”
We have also reproduced above the comments made by the Medical Assessor in the body of his report above at [21]. The Medical Assessor there reported that Mr Byimira was unable to carry out even basic chores without repeated reminders and encouragement from his mother. The Medical Assessor also reported that Mr Byimira’s grooming had declined and that he was prompted to shower once or twice a week on weekends after work. His oral hygiene was such that his mother commented on his bad breath if he missed brushing his teeth.
These findings were consistent with Mr Byimira’s statement of 3 October 2023 when he said at [12]:
“12. I neglect my self-care. I only shower up to 3 times a week, usually before I go to work on the weekends. As I do not work during the week, this where the most neglect happens. I try to my brush my teeth once a day, mainly due to experience, sometimes I miss brushing my teeth. I do not recall the last time I visited the dentist. I only change my clothes around once or twice a week.”
Dr Samson Roberts in his reports of 30 November 2021 and 19 March 2023 assessment a class 3 rating. In his latter report he said, in explaining that rating:
“Mr Byimira acknowledged neglect of his personal hygiene. He reported participating in household tasks albeit to a lower standard than was previously his habit. He is cooking less frequently than was previously the case. The impression derived from his account on 28 February 2023, in addition to the information presented at the time of the previous assessment, support the conclusion that if not for the support, encouragement and sense of obligation derived from living with family, Mr Byimira’s ability to live independently would be tenuous. On this basis, it is appropriate to conclude that he is moderately impaired in this area of functioning.”
Dr Abdul Virk advised on 12 July 2023 that maximum medical improvement had not occurred. He was invited to comment on Dr Roberts’ report however, and said:
“I disagree with Dr Roberts’ opinion that Mr Byimira is ‘moderately impaired’ with regards to his self-care and personal hygiene. Although he appears to lack motivation at times, I believe that Mr Byimira can live independently, evidenced by his contribution to the household duties that his mother is unable to complete due to her physical health issues and his ability to shower and groom himself on a reasonable regular basis. I would opine that he is suffering from a ‘mild impairment’…”
Dr Virk recorded a somewhat more complex domestic situation in the body of his report, where he noted that Mr Byimira now did the “bare minimum” for domestic duties, that he lacked motivation to attend to his self-care and personal hygiene, that he skipped showering for several days, that he had lost weight because he did not have an appetite and that he ate “fruits eggs and toast throughout the day”.[19]
[19] Appeal papers page 184.
We note that although the appellant employer submitted that the Medical Assessor had fallen into error by not considering all the evidence, the only evidence it actually referred to was that of its medicolegal specialist Dr Virk. It made a general submission that the Medical Assessor had not considered “the opinions of treatment providers… and alternative opinions provided by other independent medical specialists…” but referred only to the opinion of Dr Virk. Even then, the appellant employer had to concede that it was clear that the Medical Assessor had considered Dr Virk’s opinion, as he referred to it in some detail when discussing Dr Virk’s reports in other contexts at [10c] of the MAC.
The basis of the appellant employer’s appeal appears to be a disappointment that its medico-legal specialist’s opinion had not been accepted by the Medical Assessor. In the final analysis the submission is no more than a mere disagreement about which reasonable minds might differ.

Social and recreational activities

In this category the Medical Assessor accorded a class 3 rating. The descriptors for the relevant classes are provided in Table 11.2 of the Guides:
“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.”
The reasons given by the Medical Assessor for this rating were:
“He has stopped going to the gym. He has stopped his hobby of music production. He mostly stays at home. He would likely remain quiet at any social events.”
In challenging the rating in this category, the appellant employer emphasised the isolated occasion when Mr Byimira had travelled unaccompanied to the UK to attend a family funeral. Again, the appellant employer had to concede that the Medical Assessor had considered this event under the Travel category, for which we note a class 1 rating was given, class 1 being defined in Table 11.3 as “no deficit, or minor deficit attributable to the normal variation in the general population. Can travel to new environments without supervision.”
Notwithstanding, the appellant employer alleged that the Medical Assessor had erred in not taking Mr Byimira’s UK visit into account in this category as well. The basis of the submission was that attendance at a funeral was an age, sex and culturally appropriate activity, as such attendance involves socialising with the bereaved relatives. The appellant employer appears to have overlooked the adverb “regularly” contained in the class I descriptors.
The appellant employer also submitted that the class 3 descriptors included the example “Will not go out without a support person.” This, it was submitted, demonstrated error on behalf of the Medical Assessor because Mr Byimira’s ability to fly internationally showed that he could go out without a support person, even if he only did it once. We have above referred to Chapter 11.12 the Guides and would observe that the descriptors are not strict criteria.
We apprehend that the drafters of the Guides foresaw many different possible factual scenarios within the six categories of the PIRS, and indeed within the classes of severity within each category, which would cause tension if applied strictly, and such appears to be the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
In the particular circumstances of Mr Byirima’s flight to the UK, it is clear that in his discretion, the Medical Assessor determined that because of the other circumstances he referred to, the appropriate class rating was nonetheless class 3. We find no error in his having done so.
Under the same guise as the appellant employer approached its submissions regarding self-care and personal hygiene, it then submitted that the Medical Assessor had failed to engage with the “entirety of the evidence” in determining a class 3 rating. Again, it referred only to the opinion of Dr Virk in making such a general submission and again, it had to concede that the Medical Assessor had engaged with the material about which it was now complaining. The appellant employer submitted that the Medical Assessor did not “appear to engage” with the concept that Mr Byimira’s reduced social interaction was attributable to Mr Byimira’s emerging memories of childhood sexual abuse, interpersonal conflict with friends and separation from his girlfriend, rather than as a result of the accepted work related injury. In making that submission, the appellant employer referred to one comment made by the Medical Assessor at [10c] of the MAC, but overlooked his second comment. The first comment was:
“The psycho-social stressors referenced by Dr V in his first report from 2022 (grief following the passing of a previous colleague; family stressors, relationship stressors with his girlfriend) were not particularly evident today. In my view, they should also be seen against a background of Mr Byimira managing in the main to cope with stressors in his life prior to the robbery at work.”
The second comment, which immediately followed the first, demonstrated that in fact the Medical Assessor had engaged with the concept complained about:
“Dr V also gave a diagnosis of complex PTSD (ICD Diagnosis) which appears to be based on his emerging memories of childhood sexual abuse and interpersonal conflict with his friends and separation from his girlfriend. Although emerging memories of childhood sexual abuse have understandably been difficult for Mr Byimira to process and have caused psychological upset, in my view there is insufficient basis for such a diagnosis based on today’s assessment (and my review of the documentation). He does not appear to have had longstanding symptoms consistent with this diagnosis.”
It is evident that the Medical Assessor was aware of Dr Virk’s view but that he dismissed it on the basis that the diagnosis was untenable in view of the Medical Assessor’s review of the documentation and assessment as Mr Byimira presented to him. The symptoms were not “particularly evident” and were not of sufficient long-standing to be consistent with Dr Virk’s opinion. It follows that the Medical Assessor did not regard these matters as being relevant to the class 3 rating. It was, with respect, somewhat fanciful to submit in view of the above that the Medical Assessor did not engage with Dr Virk’s opinion.

Section 323 1998 Act

Section 323 provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
In his report of 12 July 2023 Dr Virk stated:[20]
“Dr Roberts described Mr Byimira’s previous episode of depressive symptoms as an adjustment disorder with mixed anxiety and depression or simply a normative stress reaction and failed to make a deduction pursuant to Section 323 of the Act. I respectfully disagree with this assertion made by Dr Roberts.
Mr Byimira provided a history of a significant depressive episode that lasted over 12 months and required him to be maintained on antidepressant medication for at least 12 months while also receiving regular psychological therapy from his school counsellor. In addition, he was experiencing suicidal ideation during the episode, indicating that it was of significant severity and likely warranted a diagnosis of major depressive disorder rather than simply adjustment disorder.”
[20] Appeal papers page 192.

Dr Virk had earlier recorded that since this episode had occurred in 2013, in the context of stress associated with his HSC studies, and to that extent the history agrees with that taken by the Medical Assessor (although the year given was 2014). Dr Virk had also noted that Mr Byimira had been on a scholarship and not been performing – again broadly consistent with the history taken by the Medical Assessor. Whilst Dr Virk took a history that Mr Byimira was on antidepressant medication for at least 12 months, the Medical Assessor recorded that it was “a couple of months” and ceased once he had completed his Higher School Certificate (HSC). The Medical Assessor reported that Mr Byimira was “feeling much better” when he finished school and had no issues with his mental health thereafter until the robbery.
In his statement of 3 October 2023, Mr Byimira confirmed that in year 11 and year 12 when he was studying he suffered from stress and spoke to the school counsellor. He did not recall what the medication he was prescribed was, but he consulted a psychiatrist for up to a year and stopped using the medication as he made a full recovery.[21]
[21] Appeal papers page 53.
The appellant employer thus based this ground also on the opinion of Dr Virk, who, as was again conceded by the appellant employer, took a “pointedly different history” from that of the Medical Assessor regarding the depressive episode that occurred when Mr Byimira was still at school in year 12. The essential difference was that Dr Virk had taken a history that the episode had been “significant,” that it had lasted over 12 months, that Mr Byimira had been maintained on antidepressant medication for at least 12 months, and that he was experiencing suicidal ideation during that episode. What Dr Virk did not record was that Mr Byimira made a full recovery. In 2013/14 Mr Byimira was 17 to 18 years old, and a schoolboy. He experienced mental health symptoms in the context of challenging and stressful life circumstances and recovered when those circumstances changed. There was no evidence to support Dr Virk’s assumption that Mr Byimira’s experiences then constituted a pre-existing condition which created an impairment that contributed to that caused by the subject injury. Dr Virk’s opinion was speculative and without any forensic basis.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 January 2024 should be confirmed.

[2024] NSWPICMP 436

9 July 2024