Bertolotti v Employers Mutual Management Ltd

[2025] NSWPICMP 135

DETERMINATION OF APPEAL PANEL
CITATION:	Bertolotti v Employers Mutual Management Ltd [2025] NSWPICMP 135
APPELLANT:	Naomi Bertolotti
RESPONDENT:	Employers Mutual Management Limited
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	3 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant worker alleged demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories (self-care and personal hygiene and concentration, persistence and pace); Held – Appeal Panel found error because of an inadequate path of reasoning and a re-examination was considered necessary; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 6 September 2024 Naomi Bertolotti (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 August 2024.

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

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

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

2. The appellant requested that she undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

EVIDENCE

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Further medical examination

1. Medical Assessor Douglas Andrews of the Appeal Panel conducted an examination of the worker on 15 January 2025 and reported to the Appeal Panel.

Medical Assessment Certificate

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

SUBMISSIONS

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

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

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

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

   ·        Date of injury: 22 April 2022 (deemed)

   ·        Body parts/systems referred: Psychiatric/psychological disorder

   ·        Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying 8% whole person impairment (WPI) as a result of the injury.

5. The assessment was based on his assessment under psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	Naomi Bertolotti	Claim reference number (if known)	W3014/24
DOB	xxxx	Age at time of injury	27 years old
Date of Injury	22 April 2022	Occupation at time of injury	Claims Advisor
Date of Assessment	10 July 2024	Marital Status before injury	Engaged in April 2021

Psychiatric diagnoses	1. Major Depressive Disorder		2. Attention Deficit Hyperactivity Disorder
3.		4.
Psychiatric treatment	GP, psychiatrist and psychologist follow-ups, psychotherapy, antidepressants and mood stabilisers
Is impairment permanent?	Yes
PIRS Category			Class		Reason for Decision
Self-care and personal hygiene			2		Ms Bertolotti skips showers.  She wants to shower but finds it hard to do and lacks the motivation.  She feels paralysed at times.  She has shortness of breath when she has to leave the house.  She may shower one to two times per week.  She may shower and may not change her clothes regularly.  At times, she has to change her clothes if her baby has a reflux and vomits on her.  She told that at times, her partner reminds her to shower.  She looks after her house.  At times, she gets hyper fixated and may do excessive cleaning or may not do it at all.  She cooks big meals around three times a week and tries to eat a balanced diet.  She is able to look after her 7-month-old son and is able to live independently.
Social and recreational activities			2		Ms Bertolotti’s social life has been better recently.  She attends a mother’s group twice a month for around two hours.  She hates going there but does it for her son.  She does not go outside as financially they are not doing well.  She may go to the park, but there is not much happening in social life.  She went to a birthday with her partner.  She would go for family dinners with her brother and mother.  She takes her son with her and finds that he is a security blanket.  She told me that she went to Bali in the end of May this year for her partner’s best friend’s wedding and she enjoyed the time and liked being away and out of the country.
Travel			2		Ms Bertolotti drives locally.  She has driven 30-35 minutes from her house.  She is comfortable in driving.  She can go to get groceries at the shops and go for her doctor’s appointment.  She can travel without a support person but mostly drives around locally, around her house and in her neighbourhood.
Social functioning			2		Ms Bertolotti has a good relationship.  At times, she may get snappy and describes relationship as being strained and may have some arguments with her partner due to the financial situation and also her not being able to help a lot in and around the house and not in a position to work.  She said that at times, she has gone and stayed with her mum for a few days but then came back.  She described a good relationship with her mother and her siblings.  She lives with her partner and is very supportive and she is able to look after her son.
Concentration, persistence and pace			2		Ms Bertolotti said that her focus and concentration depends on what she is doing.  Her focus is great when she is in a good mood and may do five jobs at once.  She still forgets things but is able to do more during those periods.  When she is low and anxious, then her concentration goes down as well and struggles to focus.
Employability			5		Ms Bertolotti feels sick about thinking of work.  She is not able to go back to work.  She thinks of a job where it does not matter much to others if she works or not.  She cannot figure out what she will do, thinking of working makes her feel sick.  She said that she did go back to work full-time after the psychological injury at the Department of Veterans Affair.  There were a lot of triggers while working there.  She was triggered by the type of work she was doing as it was the same profile of work as she was doing in an earlier job and also, she was triggered by the name as there was another person supervising her whose name was also Gina.  She is totally impaired and has no capacity to work in any form of employment.
Score										Median Class
2	2	2		2		2	5		2
Aggregate Score Impairment								Total			%
+	+	+		+		+	15			8 %

Pre-existing impairment = 0 %

Treatment effects = 0 %

Final WPI = 8 %”

1. The worker appealed.

2. In summary, the appellant submitted that the Medical Assessor made demonstrable errors in the assessments he made under two of the six PIRS categories, namely self-care and personal hygiene and concentration, persistence and pace, causing him to make errors as follows:

   (a)    in assessing a class 2 for self-care and personal hygiene when he should have assessed a class 3, and

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

3. In summary, the respondent employer Employers Mutual Management Limited (the respondent) submitted that the Medical Assessor did not err and the MAC should be confirmed.

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

5. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self-report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that it was not clear that the Medical Assessor had considered all of the evidence before him and the path of reasoning was inadequate including in relation to how the diagnosis of ADHD was dealt with. In these circumstances the Appeal Panel was satisfied as to error and considered a re-examination was necessary.

6. In these circumstances of a finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Douglas Andrews was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W3014/24
Appellant:	Naomi Bertolotti
Respondent:	Employers Mutual Management Limited (EML)
Date of Determination:

Examination Conducted By:	Dr Douglas Andrews
Date of Examination:	15 January 2025

1. The worker's medical history, where it differs from previous records

   Ms Bertolotti is a 27-year-old woman in a de facto relationship with Jordan, and they have a 14-month-old infant son. She lives at Riverstone, NSW but plans to relocate to Perth, WA in the next few weeks because she has found Sydney too expensive, and she would like to get away from the area where her work injury occurred.

   She continues seeing general practitioners and her psychologist. She had been seeing psychiatrist Dr Tanveer Ahmed at the Hills Clinic, but this relationship was terminated, and he suggested she engage with the new psychiatrist in Perth.

   Ms Bertolotti chose Perth primarily because of the lower cost of housing. She has an aunt and uncle there but is not close to them, and she has no friends in Perth.

   Ms Bertolotti had been diagnosed by Medical Assessor Singh with a major depressive episode and attention deficit hyperactivity disorder.

   Her current medications are agomelatine 25 mg nocte and dexamphetamine. She takes the dexamphetamine irregularly and infrequently.

   She described her condition as stable and said she had improved slightly since leaving work with EML. She was unsure if the dexamphetamine assisted her, except that she felt more attentive while driving.

   Ms Bertolotti started work with EML in November 2019. She left their employment in April 2021. Between August 2021 and July 2022, she had a similar role as a case manager for the Department of Veterans Affairs (DVA). She left that job because of her deteriorating mental health, and she said, “There were a lot of triggers in the DVA.”

   She fell pregnant early in 2023 and delivered a healthy male infant in November 2023.

   She is engaged to Jordan, a boilermaker who is currently unable to work because of workplace injuries. He recently had bilateral knee surgery.

   Ms Bertolotti was diagnosed with ADHD in 2022, after the onset of her work injury. Her general practitioner made this diagnosis based on a questionnaire and was supported by a psychiatrist. She was a reasonably good student during childhood and adolescence. She recalled doing well in high school in subjects she liked but was less attentive in those she didn’t. There was never any suggestion of ADHD during her developmental years.

   She has had trials of lisdexamfetamine, atomoxetine, reboxetine and dexamphetamine without significant benefit.

   Ms Bertolotti remains unsure of the accuracy of the diagnosis of ADHD.

   Her physical health problems include hypothyroidism, Factor V Leiden deficiency, endometriosis and probable uterine adenomyosis. She occasionally uses oxycodone or paracetamol/codeine during the time of menses. She takes 25 µg thyroxine sodium daily.

   She does not smoke and rarely drinks alcohol.

2. Additional history since the original Medical Assessment Certificate was performed

   Current symptoms:

   Her mood varies but is more often down without diurnal variation. She has a reduced capacity to experience positive emotions. She enjoys seeing her son do “cute things.”

   She is irritable and prone to anger.

   She is frequently anxious, more so when she needs to leave the house. On those occasions, she experiences physical symptoms such as tachycardia and sweating. She avoids leaving her home most days.

   She described her concentration, attention, and memory as “awful,” describing incidents of leaving the house unlocked and doors open and forgetting to buckle her son into his seat when she drove.

   She acknowledged thoughts of suicide without intent. She nominated her infant son and her mother as protective factors, noting that her mother had experienced the cancer-related death of her brother when he was seven years old.

   She has initial and middle insomnia. Her son sleeps through the night, but it is often the early hours of the morning before she can fall asleep because her mind is “too active.” She often needs to nap during the day.

   She has a reduced appetite and compensates by binge eating every few days.

   She has no libido.

   Diagnoses:

   Ms Bertolotti meets DSM-5 criteria for a persistent depressive disorder with an ongoing major depressive episode and anxious distress.

   Her symptoms have been present for more than two years, warranting a persistent depressive diagnosis.

   She meets the criteria for a major depressive episode. Of the nine described symptoms, she did not have psychomotor agitation or retardation or feelings of worthlessness or excessive or inappropriate guilt. She has had weight fluctuations – she currently is 5-7 kg greater than when she left work – but she has had a child, and it is difficult to interpret the weight changes in that context.

   On the evidence before me, I cannot confirm a diagnosis of ADHD and consider it unlikely. Her challenges with concentration, attention and memory can be understood in the context of her depression.

   Activities of daily living:

   Ms Bertolotti lives with her fiancé Jordan and her 14-month-old son.

   She rises at 7 AM, when her child gets up and attends to his needs, including cleaning and feeding.

   She spends much of her day scrolling on her phone, looking at Facebook, TikTok, and Instagram. During the day, she naps when her son sleeps.

   She had maintained a lower standard of housework than before her injury, tending to do a thorough clean occasionally. Since her partner’s surgery, his insurance has given him a cleaner, and the house is being kept to a reasonable standard.

   She prepares a batch of meals two or three times a week, sometimes with her partner's help, and they reheat them on subsequent days.

   She does the necessary cleaning in the kitchen, such as cleaning the dishes.

   She often skips meals.

   She showers once or twice a week, sometimes after suggestion from her partner. She changes her clothes on a similar schedule and struggles to motivate herself to do more.

   She often shops online or arranges ‘click and collect’. She will also go to the shops to collect purchased items by herself.

   She has restricted her social and recreational activities because of her reluctance to leave home. Before becoming unwell, she had an active social life, going out most weekends. Encouraged by her psychologist, she has joined a mother’s group but rarely attends, except online.

   She has stopped seeing friends but has one friend who continues to message her.

   She can drive alone locally to pick up shopping or attend appointments. In recent weeks, she has driven one hour and 50 minutes to meet her sister to drop off her child when her sister offered to care for him for a few days. She described this trip as “stressful; I was out of my comfort zone.” She repeated the trip to pick up her son. She has not planned how she and her family will travel to Perth.

   She has maintained good relationships with her partner, mother and sister. Her mother works full-time and provides little practical support.

   She often has the television on, preferring reality TV. She describes it as “background noise" and isn’t engaged. She has stopped reading because she has to reread passages several times to understand them. She has no projects or hobbies.

   Whole-person impairment:

   Ms Bertolotti appealed the MAC because of perceived errors in self-care and personal hygiene, and concentration, persistence, and pace. The MA determined mild impairments in these categories, and Ms Bertolotti argues that the impairments are moderate.

   Self-care and personal hygiene – Ms Bertolotti lives with her de facto partner and 14-month-old child. She attended to housework, albeit at a lower standard than previously, but reduced her contribution recently when her partner was given cleaning support by his insurer. Before that, she occasionally cleaned thoroughly. She contributes to shopping for food and meal preparation, often preparing several days of meals at one time. She frequently skips meals but has gained weight. She showers and changes into clean clothes once or twice weekly, sometimes following suggestion from her partner. Ms Bertolotti can live independently, maintaining a lower standard of self-care and hygiene than previously. Her impairment is mild, class 2.

   Concentration, persistence and pace – Ms Bertolotti has subjective problems with concentration, attention and memory. She watches television with little engagement and has given up reading. She has no ongoing projects or hobbies. She sufficiently cares for her infant son. During my 60-minute interview, she struggled to recall details and event sequences. Her impairment is moderate, class 3.

   My self-care and personal hygiene assessment agrees with the Medical Assessor Singh and Independent Medical Examiner, Dr Khan. Regarding my assessment of concentration, persistence, and pace, my assessment agrees with Dr Khan's but not the Medical Assessor Singh.

   Sequentially, the class ratings are 2, 2, 2, 2, 3, and 5. The aggregate is 16, and the median is 2. This equates to a 9% WPI.

1. Findings on clinical examination

   I assessed Ms Bertolotti via an audiovisual link for 60 minutes. The connection quality was adequate to do a comprehensive assessment.

   She was friendly and cooperative during the interview.

   She described anxiety and low mood. Her affect was reactive. She came across as warm and often smiled during the interview. On one occasion, she lost composure while discussing her circumstances.

   There was no evidence of any disorder of thought form or perception.

   She acknowledged thoughts of suicide.

   She gave a detailed history but was imprecise about details and event sequences.

   At the end of the interview, she agreed that we had covered everything necessary and had nothing else to add.

2. Results of any additional investigations since the original Medical Assessment Certificate

   No additional investigations have been done.”

   The Appeal Panel considers that the examination undertaken by Medical Assessor Douglas Andrews was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Douglas Andrews has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS categories that have been challenged on appeal, namely self care and personal hygiene and concentration, persistence and pace. The Appeal Panel notes that Medical Assessor Douglas Andrews had clear regard to the other evidence before him, has not relied on self -report alone and has used his clinical expertise on the day of assessment to make recommendations to the Appeal Panel about the assessments of the contested PIRS categories. The Appeal Panel also notes Medical Assessor Douglas Andrews findings on clinical examination of the appellant and his diagnosis made after clinical examination of the appellant, namely that the appellant worker continues to meets DSM-5 criteria for a persistent depressive disorder with an ongoing major depressive episode and anxious distress and that a diagnosis of ADHD cannot be confirmed and is considered unlikely. The Appeal Panel agrees with and adopts the findings of medical assessor Douglas Andrews which include that the appellant’s challenges with concentration, attention and memory can be understood in the context of her depression resulting from her psychological injury.

3. In respect of self care and personal hygiene, Table 11.1 of the Guides provides as follows:

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

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

1. The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

   “Ms Bertolotti lives with her de facto partner and 14-month-old child. She attended to housework, albeit at a lower standard than previously, but reduced her contribution recently when her partner was given cleaning support by his insurer. Before that, she occasionally cleaned thoroughly. She contributes to shopping for food and meal preparation, often preparing several days of meals at one time. She frequently skips meals but has gained weight. She showers and changes into clean clothes once or twice weekly, sometimes following suggestion from her partner. Ms Bertolotti can live independently, maintaining a lower standard of self-care and hygiene than previously. Her impairment is mild, class 2.”

2. The Appeal Panel considers that based on these findings, the best fit is a mild impairment or class 2 for self care and personal hygiene.

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

   Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace

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

1. Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

   “Concentration, persistence and pace – Ms Bertolotti has subjective problems with concentration, attention and memory. She watches television with little engagement and has given up reading. She has no ongoing projects or hobbies. She sufficiently cares for her infant son. During my 60-minute interview, she struggled to recall details and event sequences. Her impairment is moderate, class 3.”

   The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or Class 3 for concentration, persistence and pace.  

2. What this means is that the classes assessed by the Appeal Panel are in accordance with the class assessed by the Medical Assessor for the contested PIRS category of self care and personal hygiene but differs in respect of concentration, persistence and pace and employability. The calculations become as follows:

Score								Median Class
2	2	2	2	3	5		2
Aggregate Score Impairment						Total			%
+	+	+	+	+	16			9 %

1. There was no deduction made by the Medical Assessor for any pre-existing condition abnormality or injury under s 323 and no allowance for the effects of treatment made by the Medical Assessor. These aspects of the assessment were not the subject of complaint on appeal. This means that the total WPI is 9% and the MAC will be revoked.

2. For these reasons, the Appeal Panel has determined that the MAC issued on 9 August 2024  should be revoked and a new MAC 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:	W3014/24
Applicant:	Naomi Bertolotti
Respondent:	Employers Mutual Management Limited

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

The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury	23 March 2020	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	9%	0%	9%
Total % WPI (the Combined Table values of all sub-totals)					9%

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.