Browne v Southern Cross Care

[2025] NSWPICMP 690

DETERMINATION OF APPEAL PANEL
CITATION:	Browne v Southern Cross Care [2025] NSWPICMP 690
APPELLANT:	Elena Browne
RESPONDENT:	Southern Cross Care
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	9 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of an assessment under one of the psychiatric impairment rating scale (PIRS) categories (concentration, persistence and pace); Held – Appeal Panel found error in the assessment of concentration, persistence and pace; findings during a mental state examination in the domain of concentration, persistence and pace are highly relevant but they are not determinative; Medical Assessor placed undue weight on the findings during the mental state examination and had insufficient regard to the appellant’s self-report supported by other medical evidence; a re-examination was not considered necessary as there was sufficient material before the Appeal panel to enable a determination to be made; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 15 May 2025 the worker Elena Browne (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 17 April 2025.

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):

   (a)    the assessment was made on the basis of incorrect criteria, and

   (b)    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, 4th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 Procedural Direction PIC7.

2. The appellant did not request that she undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel to enable a determination to be made.

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.

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: 24 November 2020

   ·        Body parts/systems referred: Psychological and Psychiatric disorders

   ·        Method of assessment: Whole person impairment”

4. The Medical Assessor issued a MAC certifying as follows:

   “

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. Psychiatric injury	24 November 2020	Chapter 11, page 54	Chapter 14, pg 361-365	8	0	8+1
Total % WPI (the Combined Table values of all sub-totals)					9

While she has said she has not made any sustained improvement from treatment, the medical records, and her suggestion that some of the post-traumatic stress disorder symptoms have improved, suggest there has been some improvement. Due to the degree of inconsistencies, it is difficult to be certain how much improvement to her psychosocial functioning is from her treatment, but an adjustment of 1% for the effect of treatment may be reasonable.”

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

“Table 11.8: PIRS Rating Form

Name	Elena Browne	Claim reference number (if known)	W29770/24
DOB	xxxx	Age at time of injury	48 years old
Date of Injury	24 November 2020	Occupation at time of injury	Service advisor
Date of Assessment	14 April 2025	Marital Status before injury	Married

Psychiatric diagnoses	1. Posttraumatic Stress Disorder		2. Persistent Depressive Disorder
3.		4.
Psychiatric treatment	Therapy, Medications, rTMS
Is impairment permanent?	Yes
PIRS Category			Class		Reason for Decision
Self Care and personal hygiene			2		Since the subject injury, she said she showering every day when she feels ok, though sometimes her husband has to remind her. She said she has not cooking at all, though she can make simple meals such as a sandwich, including toasted sandwich for her children. She said she has not been cleaning and they have hired cleaners. She said her husband does most of the laundry, though on rare occasions she will help wash and fold the clothes. She said she does the shopping at the local shops when it’s not busy, such as early in the morning, and she goes in and gets out quick. As she can self-care independently, such as showering regularly, with some reminders, but not to the extent she relies on them to manage her grooming, and she can prepare simple meals, she has mild impairment.
Social and recreational activities			3		Since the subject injury, she said she has lost all her friends, and she has no remaining friends. She has considered re-establishing her friendships after her discharge. She had been in contact with the godmother of her son, who was visiting her and ringing her, but since 6-7 months ago, her friend stopped contacting her. She said she goes to Church a couple of times a month, and she stays for half an hour, and usually when it is not busy. She said she usually doesn’t attend from the start of the service, and only remains for 30-45 minutes at the most, before leaving. She said the Church helps her feel at peace to a mild degree. She said she doesn’t socialise with anyone there, apart from greeting people in passing. When someone approaches her, she tries to escape from the conversation as soon as possible. As she has been socially isolated, but not to the extent that she does not leave the house, she has moderate impairment.
Travel			2		She said she drives in the local area, to the local shops, and to her psychologist and psychiatrist in Penrith, and to her GP 600m away. As she can drive in the local area, she has mild impairment.
Social functioning			2		Since the subject injury, she said her relationship with her husband is “on the last legs” as they no longer have any intimacy, and she finds him too loud and irritating, though she said there has not been any physical violence or separation. She said her oldest son moved out 7 months after the subject injury as he struggled with how much she had changed, and she said she talks to him “quite often” when he calls her. She said her relationship with her two youngest children are loving, though they tell her to lay down, and prefer their father’s company than her, which she finds sad and hurtful. She said she still tries to prepare meals for them when she feels better, but she can only make simple meals. She said she will try to watch a movie with them, even when she struggles to concentrate on the movie. Her husband does most of the meal preparation and does most of the laundry, though she sometimes does the laundry for them. She said her husband mostly takes them to places. She said she has driven her daughter to the local shops sometimes. Since the subject injury, she said she has lost all her friends, and she has no remaining friends. She has considered re-establishing her friendships after her discharge. She had been in contact with the godmother of her son, who was visiting her and ringing her, but since 6-7 months ago, her friend stopped contacting her. She said she goes to Church a couple of times a month, and she stays for half an hour, and usually when it is not busy. She said she usually doesn’t attend from the start of the service, and only remains for 30-45 minutes at the most, before leaving. She said the Church helps her feel at peace to a mild degree. She said she doesn’t socialise with anyone there, apart from greeting people in passing. When someone approaches her, she tries to escape from the conversation as soon as possible. While she has lost friends, she maintains her relationship with her family. While her relationship with her husband has been strained, there are no episodes of violence or separation. There are opportunities to reach out to a friend that she has contemplated undertaking. Hence, she has mild impairment.
Concentration, persistence and pace			2		Since the subject injury, she said her concentration has been poor, and sometimes she gets too overwhelmed to even concentrate on conversations. She cannot concentrate on reading longer than half a page. She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment. She was able to recall the details of the incident, and her past, as well as recent events reasonably well. I note the medical records suggesting she has made some improvement, particularly with rTMS, with her concentration. While she complains of poor concentration, there is no objective findings in the assessment, and so she has mild impairment.
Employability			4		Since the subject injury, she had made an attempt to return to work on a part-time basis around January 2021, to her pre-injury role at reduced hours (3 days a week, 4 hours a day) with similar duties. She said she had to go through the same client again, and they would copy her into emails and send information about the incident. The client’s file was in her portfolio, and she was not able to go back in. She said she stopped working less than 2 weeks later. She said she made two further attempts to return to work. The second attempt was in around 9-10 months after her first attempt to return to work, on a casual basis as a carer for NDIS, with a lady client who was a widowed mother with four children. She said she felt it was too much, as the client wanted her to drive to places, such as shopping and appointments, which she was unable to undertake, due to her anxiety particularly when there were too many people. She had tried to do this for a few months, working 1 day a week. The third attempt to return to work was in November 2022 to March 2023, working in a cardiology medical practice as an administration assistant and receptionist, working part-time 20 hours a week. She said that the practice was very busy and there were a lot of people, and sometimes people had to wait for a while. She said seeing new people every day was “bad enough”, and some people would become frustrated from the waiting and approach her, which would trigger her symptoms. She said her anxiety became unbearable and she would hide herself in the toilet or in the backroom where the file cabinets were. She said her manager said that she was employed to work at the front, and she was not able to leave and sit on the toilet for 15 minutes. She then left the work at the time, which led to her first admission to hospital. She has not been able to sustain work, even on a part-time basis, so she has severe impairment, but not total impairment as she has previously been able to sustain some form of work for months at a time.
Score										Median Class
2	2	2		2		3	4		=2
Aggregate Score Impairment								Total			%
+2	+2	+2		+2		+3	4	15			8

While she has said she has not made any sustained improvement from treatment, the medical records, and her suggestion that some of the PTSD symptoms have improved, suggest there has been some improvement. Due to the degree of inconsistencies, it is difficult to be certain how much improvement to her psychosocial functioning is from her treatment, but an adjustment of 1% for the effect of treatment may be reasonable.”

1. The worker appealed.

2. In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments he made under one of the PIRS categories, namely in assessing class 2 for concentration, persistence and pace when he should have assessed a class 3.

3. In summary, the respondent employer Southern Cross Care (the respondent) submitted that the Medical Assessor did not make assessments on the basis of incorrect criteria and 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 respondent submitted that the Medical Assessor exercised his clinical judgment on the day of examination applying correct criteria to the assessment of concentration, persistence and pace and no error has been demonstrated.

6. The Medical Assessor took a history which he recorded as follows (emphasis in original):

   “● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   ·    Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   I read out my previous assessment and she agreed about the history of the onset of injury:She said she was giving a new client who had drugs and alcohol dependence and mental health issues, which she has not had previous experience or training in dealing with people who are heavily intoxicated. She said she attended the client and one day the client was heavily intoxicated and took a knife and was threatening them with a knife. She said she felt that she felt that the staff were in jeopardy, particularly towards her colleague and she thought he would kill her in front of her eyes, and would then do the same to her. She was not far from the door, as the place was small. She felt she could not move and was frozen.

   She said that they managed to leave his place safely and she called her manager to inform her of the incident. She said she was having panic attacks after this.

   She said that she had tried to persist working after the subject injury and had engaged with EAP counsellor, but two weeks after the subject incident, she received a letter from HR, calling her to attend a disciplinary meeting, for breaching Aged Care Standards, instead of supporting her.

   From the subject injury, she developed symptoms including “stopping sleeping, constant nightmares and being completely destroyed, so depressed, absolutely worthless, like my life is a complete rubbish”. She said her symptoms have gotten worse after receiving the letter, but she has been feeling better in the past two years since.

   She has had psychological therapy, and Effexor 150mg and 75mg, quetiapine 25mg, melatonin 2mg, prazosin 2.5mg.

   Since my last review, she has had further psychological therapy, including EMDR (which is still ongoing), and 35 sessions of rTMS, and medication treatment and she has had two psychiatric hospital admissions, the first one being 1.5 years ago and the last one being in February 2025. She was changed to Lexapro, then back to Effexor 225mg, and continued on prazosin 1mg at night, and temazepam 10-20mg at night, and quetiapine up to 100mg at night.

   She said that treatment has helped her mental health, but the benefits are not sustained for longer than a month or so. She said that the symptoms recur, though she is not sure why that is the case, with worsening flashbacks and sleep.

   ·    Present treatment:

She is currently on Effexor 225mg, prazosin 1mg at night, temazepam 10-20mg at night, quetiapine up to 100mg at night.

She is seeing her GP every 4 weeks. She is seeing her psychologist every 2 weeks. She is seeing her psychiatrist every 4 weeks.There are no further plans for treatment escalation or medication changes.

·    Present symptoms:

She said she has been feeling depressed almost all the time, and she said she has not been able to enjoy anything, and she constantly feels a sense of danger. She said she tries to spend time with her children, as it is very upsetting to see them not wanting to be around her. She said she loves and enjoys spending time with her children. Her sleep has been generally poor, with middle insomnia, and struggles to return to sleep. Her appetite has been generally poor, and she skips meals sometimes. She has lost 18kg since her injury. Her energy has been “very bad”, and she needs a lot of effort to organise herself for appointments. She said she feels guilty all the time and worthless. She said she thinks about death a lot, but she denied any suicidal ideations. Her religion and her children are her protective factors.She said she has some intrusive recollection of the subject incident at work, though this has been less frequent since undertaking EMDR. She still has flashbacks and can still smell the odour of the room where the incident occurred. Sometimes she can be triggered by seeing male figures. She said she still has nightmares of the subject incident, though less frequent on account of the prazosin. She tries to avoid thinking or talking about the incident. She feels she cannot trust anyone, and she avoids meeting new people altogether. She feels constant shame, guilt and anger. She struggles to connect to people, including her husband, and harder to enjoy her previous interests. She is still easily irritable. She has been hypervigilance and easily startled by loud noises. She has poor concentration and ongoing sleep difficulties.

She was asked if she had any other relevant information she wished to add, and she indicated that she did not have any further information to add.

·    Details of any previous or subsequent accidents, injuries or condition:

She denied any relevant pre-existing conditions, including depression, anxiety, psychosis, nor received any psychological or medications.

Prior to the subject injury, she would drink on social occasions, drinking 1-2 glasses of wine on weekends. Since the injury, she doesn’t drink now. She denied any substance use. She denied any smoking.

She denied any forensic history.

She denied any relevant family history of note.

·    General health:

She said she has had surgeries for both children with Caesarian section and an appendectomy.

·    Work history including previous work history if relevant:

She has worked as a teacher in Ukraine for a brief period. She was an editor for a Municipal TV station for 5 years. She also worked selling cars.

In New Zealand, she worked as a support worker for people with intellectual disabilities for a year and a half, then as a house leader for a group home, and a service coordinator for 2.5 years.

She then worked in Australia in Aged Care, initially for Diverse Community Care for program for carers as a service coordinator for 5 years.

She then worked at Southern Cross Care in 2017, as a service a advisor.

Prior to the subject injury, she said she was working as a service advisor in Aged Care, and in Home Care. She had been in that role since 2017, until the subject injury in 2020. She was working full-time, 5 days a week, and she had additional on-call responsibilities on the weekends too.

Since the subject injury, she had made an attempt to return to work on a part-time basis around January 2021, to her pre-injury role at reduced hours (3 days a week, 4 hours a day) with similar duties. She said she had to go through the same client again, and they would copy her into emails and send information about the incident. The client’s file was in her portfolio, and she was not able to go back in. She said she stopped working less than 2 weeks later.

She said she made two further attempts to return to work. The second attempt was in around 9-10 months after her first attempt to return to work, on a casual basis as a carer for NDIS, with a lady client who was a widowed mother with four children. She said she felt it was too much, as the client wanted her to drive to places, such as shopping and appointments, which she was unable to undertake, due to her anxiety particularly when there were too many people. She had tried to do this for a few months, working 1 day a week. I note she has told me in the last assessment that the reason she has not continued to work was due to the lack of sufficient work.

The third attempt to return to work was in November 2022 to March 2023, working in a cardiology medical practice as an administration assistant and receptionist, working part-time 20 hours a week. She said that the practice was very busy and there were a lot of people, and sometimes people had to wait for a while. She said seeing new people every day was “bad enough”, and some people would become frustrated from the waiting and approach her, which would trigger her symptoms. She said her anxiety became unbearable and she would hide herself in the toilet or in the backroom where the file cabinets were. She said her manager said that she was employed to work at the front, and she was not able to leave and sit on the toilet for 15 minutes. She then left the work at the time, which led to her first admission to hospital.

She said she has not been able to return to work, given how she continues to struggle. She said she doesn’t want to put herself through more trauma.

·    Social activities/ADL:

She is 52 years old and lives in Ropes Crossing with her two younger children (aged 10 and 12 years old) and husband of 22 years, and her mother. She has a 25-year-old son, and she has a sister.

Prior to the subject injury, she said her relationship with her husband was “normal” and they did not fight, and she said she had a “very good relationship” with her children, and her older son was living with her at the time. She said her mother has only moved in after the subject injury, and she said she had a good relationship with her mother. She said she had a “very good” relationship with her sister too.

Since the subject injury, she said her relationship with her husband is “on the last legs” as they no longer have any intimacy, and she finds him too loud and irritating, though she said there has not been any physical violence or separation. She said her oldest son moved out 7 months after the subject injury as he struggled with how much she had changed, and she said she talks to him “quite often” when he calls her. She said her relationship with her two youngest children are loving, though they tell her to lay down, and prefer their father’s company than her, which she finds sad and hurtful. She said she still tries to prepare meals for them when she feels better, but she can only make simple meals. She said she will try to watch a movie with them, even when she struggles to concentrate on the movie. Her husband does most of the meal preparation and does most of the laundry, though she sometimes does the laundry for them. She said her husband mostly takes them to places. She said she has driven her daughter to the local shops sometimes.

Prior to the subject injury, she said she had many friends, and she said she would see them regularly, such as twice a week for one, and weekly for another friend. She would go walking with one of her friends and visit each other’s houses. She said that she would go out see the movies or have dinner with them or have a trip to the Blue Mountains. They would also go to see concerts or to the Art Gallery. She also enjoyed reading and spending time with her family, such as for day trips or holidays away.

Since the subject injury, she said she has lost all her friends, and she has no remaining friends. She has considered re-establishing her friendships after her discharge. She had been in contact with the godmother of her son, who was visiting her and ringing her, but since 6-7 months ago, her friend stopped contacting her. She said she goes to Church a couple of times a month, and she stays for half an hour, and usually when it is not busy. She said she usually doesn’t attend from the start of the service, and only remains for 30-45 minutes at the most, before leaving. She said the Church helps her feel at peace to a mild degree. She said she doesn’t socialise with anyone there, apart from greeting people in passing. When someone approaches her, she tries to escape from the conversation as soon as possible.

Prior to the subject injury, she said she would shower every day. She would cook every night for her family, and she would clean when needed, at least twice a week. She said she would go shopping at least once a week.

She said she was able to drive without restrictions.

Since the subject injury, she said she showering every day when she feels ok, though sometimes her husband has to remind her. She said she has not cooking at all, though she can make simple meals such as a sandwich, including toasted sandwich for her children. She said she has not been cleaning and they have hired cleaners. She said her husband does most of the laundry, though on rare occasions she will help wash and fold the clothes. She said she does the shopping at the local shops when it’s not busy, such as early in the morning, and she goes in and gets out quick.

She said she drives in the local area, to the local shops, and to her psychologist and psychiatrist in Penrith, and to her GP 600m away.

Prior to the subject injury, she said her concentration was good, and she would be able to read books up to an hour or so.

Since the subject injury, she said her concentration has been poor, and sometimes she gets too overwhelmed to even concentrate on conversations. She cannot concentrate on reading longer than half a page.

Prior to the subject injury, she said she was working as a service advisor in Aged Care, and in Home Care. She had been in that role since 2017, until the subject injury in 2020. She was working full-time, 5 days a week, and she had additional on-call responsibilities on the weekends too.

Since the subject injury, she had made an attempt to return to work on a part-time basis around January 2021, to her pre-injury role at reduced hours (3 days a week, 4 hours a day) with similar duties. She said she had to go through the same client again, and they would copy her into emails and send information about the incident. The client’s file was in her portfolio, and she was not able to go back in. She said she stopped working less than 2 weeks later.

She said she made two further attempts to return to work. The second attempt was in around 9-10 months after her first attempt to return to work, on a casual basis as a carer for NDIS, with a lady client who was a widowed mother with four children. She said she felt it was too much, as the client wanted her to drive to places, such as shopping and appointments, which she was unable to undertake, due to her anxiety particularly when there were too many people. She had tried to do this for a few months, working 1 day a week. The third attempt to return to work was in November 2022 to March 2023, working in a cardiology medical practice as an administration assistant and receptionist, working part-time 20 hours a week. She said that the practice was very busy and there were a lot of people, and sometimes people had to wait for a while. She said seeing new people every day was “bad enough”, and some people would become frustrated from the waiting and approach her, which would trigger her symptoms. She said her anxiety became unbearable and she would hide herself in the toilet or in the backroom where the file cabinets were. She said her manager said that she was employed to work at the front, and she was not able to leave and sit on the toilet for 15 minutes. She then left the work at the time, which led to her first admission to hospital.

She said she has not been able to return to work, given how she continues to struggle. She said she doesn’t want to put herself through more trauma.”

1. The Medical Assessor conducted a mental state examination and recorded his findings as follows:

   “She presented as a casually dressed and reasonably groomed woman. She had an average build and appeared to be her stated age. She engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail.

   She told me she was feeling irritable, depressed and anxious.

   She displayed some emotional reactivity, appearing predominantly anxious and mildly irritable at times during the interview.

   She spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody.

   She complained of intrusive recollections of the subject incident at work, though less frequent than before.

   She had pessimistic thoughts of guilt, and thoughts of death without any suicidal ideations.

   She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment. She was able to recall the details of the incident, and her past, as well as recent events reasonably well.”

2. The Appeal Panel notes that the Medical Assessor when making the assessment of impairment in the challenged domain of concentration, persistence and pace places a great deal of weight on the appellants ability to sustain her concentration for the duration of the assessment. The Appeal Panel notes that the duration of the assessment is not specified by the Medical Assessor in the MAC.

3. The Medical Assessor summarised the injury and diagnosis as follows:

   “summary of injuries and diagnoses:

   She has:

   Ø Post-traumatic stress disorder, as I accept the subject incident with the client brandishing the knife as being sufficient to meet Criterion A, being that the threshold to meeting the definition is partly subjective, in that she assessed the situation as posing great threat, even if it may or may not be objectively the case. She meets the other symptom criteria, duration criteria and likely had associated derealisation symptoms.

   Persistent depressive disorder, as she has had a prominent depressive component to her illness, not sufficiently accounted for by a post-traumatic stress disorder diagnosis, though both conditions can overlap and are frequently comorbid with the other.

   ·    consistency of presentation

The history obtained from the claimant was inconsistent with the prior medical reports, which has been addressed above. During the assessment, this claimant's presentation was consistent and appropriate.”

1. The Medical Assessor explained the basis on which his assessment was made as follows:

   “The facts on which I have based my assessment of whole person impairment (WPI) are:

   -Clinical Interview

   -Mental Status Examination

   -Documentation received including previous IME”

2. The Medical Assessor made an assessment of WPI in accordance with his assessment under the six PIRS categories as set out in Table 11.8 quoted above.

3. The Medical Assessor noted that in making his assessment he had taken into account the following:

   “My opinion and assessment of whole person impairment

9%, including 1% adjustment for the effect of treatment.

In making that assessment I have taken account of the following matters:-

The information from the assessment and my observations of her, which can be found above, as well as information from the relevant documents, which have been summarised below:

A report by Dr Asif Sazzad, GP, dated 1 May 2023

Her work capacity was downgraded as her anxiety worsened since starting a new job. She complained of anxiety, panic attacks, nightmares, insomnia, palpitation and social anxiety, as well as poor concentration. She was overwhelmed in busy places with many people around. She was on Effexor 225mg, and quetiapine 25mg, rTMS, and she was recommended to have a hospital admission.

Letter by Dr Leo Chen, psychiatrist, dated 31 May 2023

She was undergoing rTMS therapy. She has had 18 sessions so far. There was minor improvement.

Report by Dr Dona Biswas, psychiatrist dated 9 June 2023

She had commenced a new job in October 2022 at a medical centre. She was initially able to cope, then became overwhelmed as the practice was too busy and she had to calm down angry patients, which escalated her anxiety. She was hiding in the back room during busy periods, and she resigned from the position two weeks prior to the review. She has had increased panic attacks and hypervigilance. Seroquel was increased to 25 mg at night and 12.5 mg as needed. She has started EMDR sessions. She was continued on venlafaxine 225mg daily.

Letter by Dr Leo Chen, psychiatrist, dated 21 June 2023

She has had 25 rTMS sessions so far with some improvement of her mood, energy, alertness and concentration and nightmares.

Hospital Discharge Summary dated 24 July 2023

She presented with worsening PTSD and anxiety following a working student when she was attacked by a patient with a knife. She has had rTMS treatment, which helped her depression but not anxiety. She was on escitalopram 10 mg, prazosin 1 mg, quetiapine 25 mg, melatonin 10 mg, temazepam 10 mg.

Letter by Dr Bernard Chivaurah, psychiatrist, dated 15 March 2024

She was diagnosed with PTSD and major depressive disorder. She was treated with Lexapro 20 mg, prazosin 1 mg, temazepam 10mmg, quetiapine 25mg. There was no barrier to her returning to full-time work in her current employment.

Letter by Dr Assad Saboor, psychiatrist, dated 24 March 2024

She was diagnosed with persistent depressive illness, with chronic Post Traumatic Stress Disorder. Self-Care was mildly impaired. She showers and changes her clothes on a daily basis and has a routine to perform these activities. Her appetite is reduced then to eating once a day. Her husband cooks most of the time. She cooks simple meals sometimes. Social and recreational activities was moderately impaired. She has not attended any social or recreational activities or goes out. Travel was mildly impaired. She can drive and feel safe in her own car. She does not use public transport due to anxiety. Social functioning was mildly impaired. She has lost some friends and has a strained relationship with her husband. Concentration was moderately impaired. She has poor concentration and short-term memory. Employability was totally impaired. Whole person impairment was 19%.

Letter by Dr Gordon Davies, psychiatrist, dated 9 August 2024

She was diagnosed with moderate depression, and she had yet to reach maximum medical improvement, and he suggested having validity testing to clarify the degree of her psychological severity.

Psychology notes dated 16 February 2021 to 10 August 2022

She has been able to go on a trip with a friend around February 2021. She has been able to do some reading in July 2021, and listen to a sermon online in July 2021, and took a trip to the Blue Mountains through Leura and Katoomba in November 2021.

Psychology notes from 2 March 2023 to 30 July 2024

She was undergoing rTMS, EMDR and DBT. There was some improvement regarding her re-experiencing symptoms, although there was an aggravation following the Bondi massacre, when she became more hypervigilant and anxious and dissociated.

TMS notes

She had her last TMS session on 12 July 2023 with a baseline QID score of 22 and an exit QID score of 11, demonstrating improvement, which she confirmed subjectively. There was a plan for her to be admitted to the Matilda Nepean hospital for additional mental health treatment.”

1. The Medical Assessor made comment on the other evidence before him as follows:

   “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

I agree with Dr Gordon Davies that she may benefit from additional validity testing, though in the absence of this data, it may be reasonable to still provide a whole person impairment using clinical judgement and triangulating other information from the medical records. With respect to Dr Saboor’s assessment on 24 March 2024, I differ on the assessment regarding concentration, as I have assessed it as mildly impaired due to the absence of any objective indicators of a more severe degree of impairment; and I have assessed her employability as severely impaired, as she has pockets of capacity for working given she had tried to return to work three times and was able to sustain her work for a few months at least, though I agree this her employability is severely impaired.”

1. The appellant complains that the Medical Assessor has erred in respect of one of the six categories assessed, namely concentration, persistence and pace where the Medical Assessor assessed a Class 2 or mild impairment.

2. The MAC must be read as a whole. The Appeal Panel cannot interfere with this rating absent error by the Medical Assessor. The Appeal Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria.

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

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.

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

1. The Medical Assessor assessed class 2 or mild impairment with the following reasoning:

“Since the subject injury, she said her concentration has been poor, and sometimes she gets too overwhelmed to even concentrate on conversations. She cannot concentrate on reading longer than half a page.

She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment. She was able to recall the details of the incident, and her past, as well as recent events reasonably well.

I note the medical records suggesting she has made some improvement, particularly with rTMS, with her concentration.

While she complains of poor concentration, there is no objective findings in the assessment, and so she has mild impairment.”

1. The appellant submitted that a moderate impairment or class 3 should have been assessed. The respondent submitted that the Medical Assessor’s rating should be confirmed noting he has exercised his clinical judgment on the day of examination.

2. The Medical Assessor has noted the self report of poor concentration and unable to read more than a page, whereas prior to injury the appellant was able to read books for up to an hour. Of course, assessment of impairment cannot be based on self-report alone. However, the Medical Assessor has placed undue weight on the appellant’s ability to concentrate for the duration of the assessment (the duration of which the Medical Assessor fails to specify). Moreover the ability to recall the detail of a traumatic incident in the course of an assessment about impairment as a result of injury from exposure to that trauma should not be used to justify an impairment rating in the domain of concentration, persistence and pace.

3. The findings during a mental state examination in the domain of concentration, persistence and pace are highly relevant, but they are not determinative. The Medical Assessor can observe the claimant’s ability to sustain attention, recall relevant facts, including event sequences, whether memory aides or used, notice whether questions are understood or need to be restated and see whether the claimant needs redirection during the interview. However, the interview is an unusual circumstance of relating biographical information about rehearsed events. The claimant will have written statements, often several, and attended multiple assessments before their assessment at the PIC. The observation of the claimant’s ability to engage in the process provides valuable information, but it must be taken in the context of all the available information. An ability to participate in the medical assessment is insufficient to differentiate between mild and moderate impairment in concentration, persistence and pace.

4. Self-report and the other evidence before the Medical Assessor must be considered in the assessment. There is ample evidence before the Medical Assessor relevant to the domain of concentration where the appellant has consistently reported poor concentration. This other evidence includes the evidence of Dr Saboor, the IME qualified to provide an opinion on behalf of the appellant who noted in his report dated 24 March 2024 that she reported her concentration was terrible. It includes the evidence of Dr Bernard Chavurah consultant clinical psychiatrist who saw the appellant the request of the respondent in late 2024 and noted a consistent report of poor concentration, struggling to read and various attempts at return to work including as a medical receptionist where she said she had to leave that work in part due to poor concentration.

5. In concluding that the appellant’s consistently self reported deficiencies in concentration, persistence and pace are not supported by an objective assessment of the Medical Assessor over the (unspecified) duration of the medical assessor’s examination, the Medical Assessor has fallen into error and made the assessment of mild impairment based on incorrect criteria when proper regard is had to the appellant’s self report and the other evidence before the Medical Assessor. Assessment on the basis of correct criteria gives a rating of a moderate impairment (Class 3) in the domain of concentration, persistence and pace.

6. This means the calculations become as follows:

Score								Median Class
2	2	2	3	3	4		=3
Aggregate Score Impairment						Total			%
+2	+4	+6	+9	+12	4	16			17

1. The Medical Assessor allowed 1% for the effects of treatment and neither party appealed this allowance. This means the overall impairment as a result of the referred injury becomes 18% WPI.

2. For these reasons, the Appeal Panel has determined that the MAC issued on
   17 April 2025 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:	W29770/24
Applicant:	Elena Browne
Respondent:	Southern Cross Care

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 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	24/11/2020	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	18 %	0 %	18 %
Total % WPI (the Combined Table values of all sub-totals)					18 %

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.