Budage Pty Ltd ATF Tonclay Services Trust v Melhopt

DETERMINATION OF APPEAL PANEL
CITATION:	Budage Pty Ltd ATF Tonclay Services Trust v Melhopt [2024] NSWPICMP 567
APPELLANT:	Budage Pty Limited ATF Tonclay Services Trust
RESPONDENT:	Noel Melhopt
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	14 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal by employer from 19% whole person impairment (WPI) for psychiatric injury: whether Medical Assessor (MA) gave adequate reasons regarding the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, travel, concentration persistence and pace and employability; Held – reasons contradictory and not adequately explained as to social and recreational activities; MA considered motivation rather than behavioural consequences; MA failed to consider the volunteer work by claimant; rating in employability contradicted by the amount of volunteer work being performed by the claimant; factual errors are not explained adequately; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 March 2024, the appellant, Budage Pty Limited ATF Tonclay Services Trust, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 March 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 24 January 2024 this matter was referred for an assessment of WPI caused by psychiatric and psychological injury which were deemed to have occurred on
13 December 2022.
Mr Melhopt was employed as a Senior Technical Specialist with the respondent when he was injured by the bullying and harassment of his employer’s management and colleagues.
The Medical Assessor found 19% 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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. None was sought by the appellant employer and the issues raised were assessable on the evidence before us.

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 appellant employer challenged the assessments in respect of the following categories of the Psychiatric Impairment Rating Scale (PIRS):
·        social and recreational activities;
·        travel;
·        concentration, persistence and pace, and
·        employability.

THE MAC

The Medical Assessor, in noting Mr Melhopt’s activities said:[1]
“He said that he goes cycling once a week and once every three to four
months he goes mountain biking, staying with a friend in the Blue Mountains.
Once or twice a week, he will walk the dog to the park.
He said he had recommenced going to a gym up to 3 times per week if he can get out of the house.
Pre-injury, until 2019, he said that he used to go 6 times per week and did up to 15 gym classes per week.”
[1] Appeal papers page 25.
The Medical Assessor noted that Mr Melhopt would visit his younger sister on a weekly basis:[2]
“He said that he has a younger sister in Sydney and sees her once a week at least….”
[2] Appeal papers page 34.
With regard to Mr Melhopt’s ability to travel, the Medical Assessor said:
“Travel
He said that he tries to travel on public transport at times when fewer people are using it. He said that the reason for this is that he might bump into people that he knows from his old workplace as well as being stressed and anxious surrounded by people. He said that he avoids buses as it feels closed-in environment.
He said that he travels alone and does not require a support person to travel.
He said that he has another friend but has only visited him once due to the distance that he would have to travel.”
The Medical Assessor found a class 3 rating for Mr Melhopt’s concentration, persistent and pace. He recorded:[3]
“He said that his concentration can be variable.
Nowadays, he explained, he must re-read material because he cannot recall information by the time he gets to the bottom of a page.
He said that he would struggle with his concentration for a full day or a full week.
He said that with prolonged focusing, he becomes agitated and must have breaks.
Sometimes he experiences lapses in time but not know how long these episodes last. He thought they could last for 10 to 15 minutes, but he cannot be certain. These lapses in time began in the last two years which he attributed to having to go back through the documentation related to his case.
Pre-injury, he said that he used to be able to concentrate without any issues and never experienced lapses in time.”
[3] Appeal papers page 26.
The Medical Assessor reported that Mr Melhopt’s concentration, persistence and pace was described as follows:
“Nowadays, he explained, he must re-read material because he cannot recall information by the time he gets to the bottom of a page.
He said that he would struggle with his concentration for a full day or a full week.
He said that with prolonged focusing, he becomes agitated and must have breaks.
Sometimes he experiences lapses in time but not know how long these episodes last. He thought they could last for 10 to 15 minutes, but he cannot be certain. These lapses in time began in the last two years which he attributed to having to go back through the documentation related to his case.
Pre-injury, he said that he used to be able to concentrate without any issues and never experienced lapses in time.”
The Medical Assessor took the following history with regard to Mr Melhopt’s employability:^[4]
“Currently, he is doing volunteer work for SECC (Southeastern Community Connect), a not-for-profit community organisation. He does this for one or two days up to 8 or 10 hours per week helping them with their IT. He also helps them once a week driving food deliveries from 9 am to 2 pm on average.
He said that he tried to go back to work since leaving Tonclay. He worked on a naval base for a year up until 2021 which a friend helped him get. He then worked at Amazon. He said that he was happy there but had to leave due to difficulty focussing and it was triggering him. He said that he could not sleep and had to take sleeping tablets which he worried was affecting his work.”

SUBMISSIONS

[4] Appeal papers page 35.

Social and recreational activities

The appellant employer kindly set out the relevant descriptors within this category, emphasising in bold those parts of the descriptors that it submitted were relevant. The histories taken by the Medical Assessor that Mr Melhopt went cycling often, including once per week, visited his gym three times per week and walked his dog once or twice a week were inconsistent with the class 3 rating assessed, it was submitted.
We were also referred to the history that Mr Melhopt would visit friends without a support person and that he had a younger sister in Sydney whom he would see at least once a week.
These histories it was submitted demonstrated that Mr Melhopt had an ability to go out to events without the need of a support person and that he does so more than rarely which was an indicator that was more appropriate to the class 2 rating than the class 3 rating found by the Medical Assessor.

Travel

Similarly the appellant employer kindly set out the relevant descriptors for the first three class ratings within the category of travel, again emphasising in bold that part that it said was relevant.
We were referred to the history taken that Mr Melhopt travelled alone and did not require a support person, which was not consistent with a class 3 rating, it was submitted.
Further, the appellant employer noted that Mr Melhopt assisted the South Eastern Community Connect (SECC) once a week by driving food deliveries from 9:00am – 2:00pm.
We were referred further to answers to particulars given to the appellant employer by
Mr Melhopt’s solicitors which confirmed that Mr Melhopt travelled alone to New Zealand between 2 September 2022 to 18 September 2022 and from 29 November 2023 to
17 January 2024.
The appellant employer submitted that this was consistent with a class 1 rating and was, by definition, well outside “any familiar areas” that was a descriptor for a class 2 rating.
The appellant employer conceded that the Medical Assessor noted that Mr Melhopt avoided buses and had some level of discomfort using public transport. It was submitted however that such history was not a sufficient basis to find a class 3 rating as assessed by the Medical Assessor, or even a class 2.
It was submitted that the appropriate rating in this category was a class 1 on the evidence and that the Medical Assessor’s failure to ascribe such a rating was a demonstrable error.

Concentration persistence and pace

With regard to this category the appellant employer again kindly set out the appropriate class descriptors, again emphasising in bold those parts that it said were relevant to its submissions.
We were also referred to Chapter 1.6a of the Guides, which require a Medical Assessor to assess the claimant as he/she presented on the day of the assessment. The appellant employer noted the observation by the Medical Assessor that on the day of assessment
Mr Melhopt was able to concentrate for 60 minutes, and that Mr Melhopt could follow simple instructions. That objective finding should be preferred over Mr Melhopt’s subjective report, it was submitted.
The appellant employer referred again to the history that Mr Melhopt was doing volunteer work at SECC for one to two days per week, up to 8 or 10 hours by helping them with their information technology (IT). This, it was submitted, was an indication that Mr Melhopt had an ability to read more than just newspaper articles.
Accordingly, it was submitted that the class 3 rating was inconsistent with the level of function that the Medical Assessor had recorded.

Employability

Again, the appellant employer kindly reproduced the relevant classes again with the relevant parts to which its submissions were addressed in bold.
The appellant employer again referred to the history of Mr Melhopt’s volunteer work with the SECC, which involved 10 hours per week doing IT and an additional five hours per week doing deliveries. This added up to 30 hours per fortnight , it submitted.
Accordingly the appellant employer argued that this demonstrated an ability to work more than 20 hours per fortnight and accordingly was inconsistent with a class 4 rating.
Moreover the volunteer IT work required a comparable skill and intellect to that which was involved in Mr Melhopt’s pre-injury work and, it was argued, was therefore inconsistent with a class 3 assessment. Accordingly a class 2 rating should be awarded.

Mr Melhopt’s submissions

Mr Melhopt submitted that the Medical Assessor had examined him, made appropriate clinical observations, applied his professional judgment and formed his opinion by reference to the correct criteria as required by the relevant workers compensation legislation, and there was no demonstrable error shown.
More specifically it was submitted that the Medical Assessor was entitled to give pre-eminence to his/her clinical observations when rating a worker’s impairment. We were referred to the well-known passages from Ferguson v State of NSW[5] to which we will refer in due course.
[5] [2017] NSWSC 887.
We were referred to Chapter 1.6, and its requirement that a claimant be assessed as he presents on the day of the assessment. We were referred to the discretion given to a Medical Assessor by Chapter 11.12, and it was submitted that the seriousness of the worker’s impairment as indicated by the comparative seriousness of the classes was what was important.
Accordingly, it was submitted that where a Medical Assessor had properly considered the evidence a Panel should refrain from interfering with a MAC. The general observation as found by the Medical Assessor as to Mr Melhopt’s anxiety should be borne in mind, it was argued.

Social and recreational activities

As to the challenge to the class 3 rating for the social and recreational activities, Mr Melhopt argued firstly that the activities described by the Medical Assessor did not belong in this category. Cycling, mountain biking and walking the dog would not normally involve interpersonal engagement, Mr Melhopt said. For this reason, those activities could only be regarded as therapeutic, as they were essentially solitary in nature and self-centred.
Mr Melhopt’s friend whilst cycling, or the staff at the gym were there as support, Mr Melhopt argued. Visiting his friends and his sister was “far removed” from the concept of “going out to events,” Mr Melhopt asserted.

Travel

The class 3 rating given for the travel category on its face was not sustainable, Mr Melhopt conceded. However, the rating was given in circumstance where it could not be said that the Medical Assessor had failed to consider the relevant facts.
The Medical Assessor determined that, notwithstanding Mr Melhopt’s ability to leave his own residence without a support person, his clinical impression remained that a class 3 rating was appropriate due to Mr Melhopt’s excessive anxiety when travelling. In any event a class rating of no less than 2 was indicated by Mr Melhopt’s travel experience without a support person.

Concentration, persistence and pace

The class 3 rating for concentration, persistence and pace was appropriate, Mr Melhopt argued. This was a field that required expert opinion, which the Medical Assessor had provided. The appellant employer’s submission was based on speculation, and it was likely that Mr Melhopt “would have been given the opportunity to consider his evidence in his own time with prompting by the MA”. There was no contradiction in Mr Melhopt’s doing volunteer work and the Medical Assessor’s finding that Mr Melhopt would have difficulty following complex instructions, it was submitted.

Employability

It would be “a serious error” Mr Melhopt cautioned, to extrapolate an ability to engage in remunerative employment by Mr Melhopt because he had an ability to engage in volunteer work. That ability was inherently therapeutic, it was submitted, could not equate with
Mr Melhopt’s entering into a contract of employment. In this category of employability, the class 4 rating was appropriate, he said.

DISCUSSION

The Psychiatric Impairment Rating Scale

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[6] 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.”
[6] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[7]
[7] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[8] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24.The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25.The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[9]. 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].”
[8] [2017] NSWSC 887.
[9] [2015] NSWSC 633.

In Glenn William Parker v Select Civil Pty Ltd,[10] 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])…..”
[10] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a)    if the categorisation was glaringly improbable;
(b)    if it could be demonstrated that the AMS was unaware of significant factual matters;
(c)    if a clear misunderstanding could be demonstrated; or
(d)    if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[11] 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 ss 327(3) and 328(2).
[11] [2022] NSWSC 929.
The tension between these descriptors (which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof) is 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. The challenge to the MAC is essentially concerned with whether the Medical Assessor has properly explained his reasons in the impugned categories.

Social and recreational activities

Table 11.2 provides the descriptors for this category. The Medical Assessor rated
Mr Melhopt’s behaviour as warranting a class 3 rating. The relevant classes are:
“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.

Class 4 Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.”

In rating Mr Melhopt with a moderate, class 3 impairment, the Medical Assessor said in the Table 11.8 PIRS Rating Form:
“Class 3 and not 2 was selected because he can go out visiting friends without a support person, but he rarely goes out now.
He goes cycling once a week. He tends to go once every three or four months and stay with a friend in the Blue Mountains to go mountain biking.
Once or twice a week, he will walk the dog to the park.
He has recommenced a gym and goes up to 3 times per week if he can get out of the house. Pre-injury, until 2019, he said that he used to go six times per week ended up to 15 gym classes per week.”
As noted, the appellant employer emphasised particular descriptors in its submission that were inconsistent with this rating. It contrasted the distinction that a person would “occasionally” go out without needing a support person with regard to a class 2 impairment, with the class 3 impairment where a person “rarely” goes out, and never without a support person.
There was, in our view, a contradiction between the reason given by the Medical Assessor for distinguishing between the two classes, namely that Mr Melhopt was able to go out visiting friends without a support person, but that he rarely went out now.
Firstly, the activities the Medical Assessor then described indicated that to the contrary,
Mr Melhopt was going out cycling once a week, walking the dog once or twice a week, and going to the gym, up to three times per week. Moreover, his visits to the Blue Mountains every three to four months to go mountain biking whilst staying with a friend indicates an active involvement in cycling which happened regularly and without a support person.
Secondly, the disclaimer that a class 3 rating had been given because Mr Melhopt did not now go out visiting friends, although he was able to, was something of a non sequitur, when the Medical Assessor clearly accepted Mr Melhopt’s description of his weekly activities.
Thirdly, the purpose of the rating scale is to establish the behavioural consequences of a person’s particular psychiatric disorder, as we have noted above. The motivation for a person’s behaviour is of little consequence, as an assessor is more concerned with whether a person is able to function in his/her activities, and it is that capability on which the class rating is to be made. Accordingly, the reasons given by the Medical Assessor for selecting class 3 over class 2 were incorrect and based on a misunderstanding as to his function. His opinion was that Mr Melhopt was able to go out visiting friends without a support person, but that he rarely did so. The Medical Assessor did not suggest that it was Mr Melhopt’s psychiatric disorder that was the cause of those rare visits and he accordingly fell into error by adjusting the class rating on that basis.
Mr Melhopt suggested in his submissions that the activities of:
·        cycling,
·        mountain biking, and
·        walking the dog
were only therapeutic, as they were essentially solitary in nature, and would not normally involve interpersonal engagement. Further, it was suggested that Mr Melhopt would have had in his friend whilst cycling, a support person, which purpose was also served by the staff at the gym.
We were not referred to any evidence that these activities were only therapeutic, but in any event we would note that most social and recreational activities have an inherent element of that quality. If a person has a psychiatric disorder but is able to partake regularly in social activities that are age, sex and culturally appropriate (such as cycling and indeed walking the dog), such activities contain within them therapeutic qualities as well as the ordinary enjoyment a person obtains from his/her hobby or routine.
It is not unusual or unexpected that people undertaking recreational activities will do so in company. This does not mean they are with support people in the sense intended in the Guidelines although friends and family are often supportive.
Mr Melhopt also asserted that the activities of his visiting friends and his sister were ‘far removed from the concept of going out to events.’ This phrase in particular, and this category in general, has been examined recently in the Supreme Court.
In Botha v Secretary, NSW Department of Customer Service[12] Stern JA, sitting in the Common Law Division of the Supreme Court, said from [66]:
“66. ….In these circumstances, the word “attends” in the Medical Assessor’s conclusion as to categorisation on the Social and Recreational PIRS should be read as encapsulating attendance at social activities both inside and outside of the plaintiff’s home.
67.   In my judgment, that is entirely consistent with the proper construction of the Social and Recreational PIRS. In particular, consistent with the approach to construction of the Guidelines set out (authorities omitted), it is appropriate to have regard to considerations of text, context and purpose, and to the fact that the Guidelines are not drafted by Parliamentary Counsel. As to text, table 11.2 must be construed having regard to the clear instruction at [11.12] …. and reflected in Garling J’s judgment in Jenkins, that the examples of activities in the tables are “examples only” and that the assessing psychiatrist should consider activities that are usual for the person’s age, sex, and cultural norms. I have also had regard to the fact that, on the Social and Recreational PIRS against Class 1 – no or minor deficit, the drafter has referred to participation in social activities, whereas against Classes 2 and 3 – respectively mild and moderate impairment, the drafter has referred to a worker going out to “such events”. I doubt very much that it was intended that a higher standard of engaging in activities outside of a worker’s house, rather than participation in such activities, was intended as regards Classes 2 and 3, as opposed to Class 1.
68.   As to context, it is clear that the aim of table 11.2[13] is to provide a tool for trained psychiatrists to assess a worker’s impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker’s home could be taken into account in making such assessments. …[T]he intention in table 11.2 is not to provide a tool for assessing a worker’s ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational. There is no good reason why such activities would have to occur outside of a worker’s home. Indeed, the artificiality of the plaintiff’s proposed construction is apparent from her contention that a face to face catch up with a friend or friends can be a social and recreational activity if it occurs at the friend’s house but must be ignored when making an assessment using the Social and Recreational PIRS if the friend or friends come to visit the plaintiff. Similarly, it is wholly artificial to suggest, as the plaintiff did, that the plaintiff hosting a birthday party must be ignored when assessing impairment on the Social and Recreational PIRS.
69.   Considerations of purpose point in the same direction. Given that the purpose of the Social and Recreational PIRS is as a tool for trained psychiatrists to assess the functional impact of an injury on a worker’s social and recreational activities, there is no sound reason why a distinction should be drawn between activities within or outside of the home. It is the social and recreational character of the activities that is relevant.
70.   That is not to say that there may not be scenarios where the circumstances in which an interaction with a friend occurs, including the fact that it occurs in the worker’s own home, or the lack of information about the circumstances of the interaction, might suggest that it is properly to be considered by reference to the PIRS for social functioning rather than social and recreational activities (as was the case in Ballas[14]). However, where, as here, the Medical Assessor recorded that the plaintiff enjoyed visits both to and from her friends, and those visits occurred at a regular frequency and also that the plaintiff enjoyed “small celebrations at home”, such activities can properly be considered as falling within Class 2 of the Social and Recreational PIRS.”
[12] [2024] NSWSC 781.
[13] [Table 11.2 provides that a psychiatrist who has undergone appropriate training is to conduct an evaluation of psychiatric impairment].
[14] Ballas v Department of Education (State of NSW) [2020] NSWCA 86.
The evidence accepted by the Medical Assessor, as noted above, was that Mr Melhopt saw his sister once a week at least. Whether the visits were at his home or at his sister’s home, or elsewhere, the submission by Mr Melhopt that such visits did not qualify because he could not be said that he was going “out to events” may thus be put to one side.
The claimant engages in regular recreational activities. Some are with people and some are solitary. The category of social and recreational activities includes solitary recreational activities.[15]
[15] See Lancaster v Foxtel Management [2022] NSWSC 929 per Basten JA from [70].
The class 3 assessment is accordingly revoked. A class 2 rating will be substituted in the light of the above matters.

Travel

The class descriptors for this category are given at Table 11.3, relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3 Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
The reasons given by the Medical Assessor for his class 3 rating at Table 11.8:
“Class 3 and not 2 was selected because he experiences excessive anxiety when travelling. However, he does not require a support person.
He said that he tries to travel on public transport at times when fewer people are using. He said that the reason for this is that he might bump into people that he knows from his old workplace as well as being stressed and anxious surrounded by people. He said that he avoids buses as it feels closed-in environment. He said that he travels alone and does not require a support person to travel.
He said that he has another friend and has only visited him once due to the distance.”
Again, the reasons given by the Medical Assessor, with respect, have laid too much emphasis on Mr Melhopt’s motivation. The Medical Assessor accepted that Mr Melhopt did not require a support person when travelling. Whilst a Medical Assessor has considerable discretion in the selection of a particular class within the PIRS categories, nonetheless where his finding contradicts the clear wording of the category, adequate reasons for doing so are required so that his assessment may be properly understood.[16] Again, the Medical Assessor did not suggest that Mr Melhopt was unable to travel without a support person, but rather that when he did, he experienced excessive anxiety. His class 3 rating accordingly conflicted with the class 3 descriptor that the claimant “cannot travel away from own residence without support person”.
[16] See El Masri v Woolworths Ltd [2014] NSWSC 1344 per Campbell J at [50].
Some further explanation was required in view of the evidence that was before him. Firstly, the Medical Assessor recorded that Mr Melhopt was currently doing volunteer work for the South-eastern Community Connect which work included driving food deliveries from 9:00am to 2:00pm once a week on average. There is some force in the submission by the appellant employer that this history demonstrated an ability to travel to new environments without a support person.
Additionally, in order for an adequate explanation to be given, the Medical Assessor needed to explain the evidence referred to by the appellant employer in its submissions regarding particulars given by Mr Melhopt’s solicitors on 12 December 2023.[17] On 24 November 2023 the appellant employer’s solicitors sought the following particulars, relevantly:
“2.1 In relation to your client’s upcoming travel to New Zealand, please particularise:
(a) the dates of travel;
(b) reason/s for travel; and
(c) please confirm if he will be travelling alone.
2.2 Please detail any other travel undertaken outside of New South Wales since 1 September 2019. In respect of any travel, please particularise:
(a) the dates of travel;
(b) reason/s for travel; and
(c) please confirm if he travelled alone.”
[17] Appeal papers pages 477-478.
Mr Melhopt’s solicitors gave the following answers:
“2.1.
a. 29 November 2023 – 17 January 2024;
b. Visiting relatives and having Christmas with family;
c. Travelling alone.
2.2. The claimant instructs he visited New Zealand in 2022.
a. 2 September 2022 – 18 September 2022;
b. Visiting family post COVID-19 pandemic; and
c. Travelling alone.”
The date of injury was pleaded as 1 September 2019, and Member Paul Sweeney, as he then was, amended the ARD by consent to particularise 13 December 2022 as the date of claim, and 22 October 2019 as the first date of incapacity. The consent order detailed that the deemed date of injury was to be 13 December 2022, but that the referral was to be assessed as a result of psychological injury caused by Mr Melhopt’s work prior to
[18] [2024] NSWCA 135 (5 June 2024).
22 October 2019. The date of that consent order was 22 January “2023” which was clearly an error and intended to be 2024. In any event the occurrence of the injury was before the Court of Appeal decision in Haddad v The GEO Group Australia Pty Ltd[18] which would now make the legal deemed date of injury the date of incapacity, namely 22 October 2019. It follows that Mr Melhopt’s 2022 visit to New Zealand, travelling alone, occurred both in fact and law after he had received his psychiatric disorder.
Further, Mr Melhopt’s stated intent to travel alone to New Zealand between
29 November 2023 and 17 January 2024 has not been the subject of any evidence to the contrary and at least should have been the subject of some enquiry by the Medical Assessor.
We accordingly disagree with Mr Melhopt’s submission that the Medical Assessor had in fact considered the relevant facts, and that we note his concession that the class 3 rating was not sustainable in any event. For the above reasons a class 2 rating will be substituted.

Concentration, persistence and pace

Table 11.5 contains the relevant descriptors for this category:
“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.”
The Table 11.8 certificate, the Medical Assessor gave the following reasons for his class 3 rating:
“Class 3 and not 4 was selected because he can follow simple instructions and was able to concentrate sufficiently for a 1 –hour assessment albeit was mildly difficult at times for him to do.
He said that his concentration can be variable. Nowadays, he explained, he has to re-read material because he cannot recall information by the time that gets to the bottom of a page.
He said that he would struggle with his concentration for a full day or a full week.
He said that with prolonged focusing, he becomes agitated and has to have breaks.
Sometimes he experiences lapses in time but did not know how long these episodes last. He thought they could last for 10 to 15 minutes but he cannot be certain. These lapses in time began in the last two years which he attributed to having to go back through the documentation related to his case.
Preinjury, he said that he used to be able to concentrate without any issues.”
The difficulty with this assessment is not so much the finding that Mr Melhopt was able to concentrate during the one-hour assessment, but that the Medical Assessor had approached this category without reference to the significant history that Mr Melhopt was able to do volunteer work of a nature that suggested an ability to focus on demanding tasks of up to 30 minutes and which was incompatible with the limitations described in class 3.

We have already referred to in this work in the context of Mr Melhopt’s driving for one day a week delivering food, but in the context of this category, his ability to advise on IT matters for up to 8-10 hours, two days a week was a significant factual matter which was not considered by the Medical Assessor in this topic. Mr Melhopt’s ability to concentrate in this field of knowledge was as significant to this category as it was to the category of employability. It suggested that Mr Melhopt had some capacity to understand the operating systems concerned with IT. It also suggested that Mr Melhopt can focus on intellectually demanding tasks for periods of up to 30 minutes.
Accordingly, the class 3 rating is revoked, and for the above reasons a class 2 rating will be substituted.

Employability

The descriptors for this category are contained in Table 11.6, relevantly:
“Class 2: Mild impairment: Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no
longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
In assessing a class 4 rating, the Medical Assessor said in Table 11.8:
“Class 4 and not 3 was selected because he can engage in some work as a volunteer, but this is much reduced from his usual ability to work.
Currently, he is doing volunteer work for SECC (South-eastern Community Connect), a not-for-profit community organisation. He does this for one or two days after 8 or 10 hours per week helping them with their IT. He also helps them once a week driving food deliveries from 9 AM to 2 PM on average.
He said that he tried to go back to work since leaving Tonclay. He worked on a naval base for a year until 2021 which a friend helped him get. He then worked at Amazon. He said that he was happy there but had to leave due to difficulty focusing and it was triggering him. He said that he could not sleep and had to take sleeping tablets which he worries it was affecting his work.”
As was submitted by the appellant employer, simple mathematics demonstrate that
Mr Melhopt was working for more than the 20 hours per fortnight in a different position indicated by the class 3 descriptors. He worked for 10 hours (on average) doing his volunteer driving, and between 16 to 20 hours per fortnight assisting with IT – a total well over the 20 hour per fortnight limit.
Whilst, as submitted by Mr Melhopt the descriptors are not strict criteria and the Medical Assessor has a discretion based on his clinical findings and his expertise, he is nonetheless required to give reasons, as we have related above in our reference to Vegan. The reason he gave for assessing a class 4 was that, although Mr Melhopt was doing some work as a volunteer, it was much reduced from his usual ability to work.
This same observation might be made regarding the descriptors for class 2, which required a claimant to be able to work no more than 20 hours per week, which is also a much-reduced ability compared to his pre-injury condition. This apparent conflict was not adequately explained, the Medical Assessor not engaging with the provisions themselves.
We note Mr Melhopt’s submission that his volunteer work was therapeutic, and we have no doubt that it is. Mr Melhopt’s attitude to his psychiatric disorder is commendable but, as we stated earlier, the assessment of an injured person is based on the behavioural consequences of the disorder. Mr Melhopt has demonstrated that he is able to put in over 20 hours per fortnight into his volunteer work, and in keeping with his overall presentation, has not demonstrated that his impairment is as great as that initially assessed.
For these reasons, the class 4 rating is revoked and a class 3 rating will be substituted.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Noel Melhopt	Claim reference number (if known)	W7870/23
DOB	Age at time of injury	54
Date of Injury	13/12/2022	Occupation at time of injury	He worked Senior Technical Specialist.
Date of Assessment	22 February 2024	Marital Status before injury	Married but in the process of divorce

Psychiatric diagnoses	Persistent Depressive Disorder
Psychiatric treatment	None
Is impairment permanent?	Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

Class 2 and not 3 was selected because if his sister were not present, it is likely that he would not prepare meals or at times miss care for his general personal hygiene.

He said that he can wash and dress himself and occasionally needs prompting from his sister.

He said that he does not cook generally but can complete simple cooking tasks.

He said that if his sister was not there, he would make some shakes rather than prepare food.

He said that he does the grocery shopping two times per week.

He said that he can do vacuuming once week. His sister does the laundry generally.

In terms of his functioning pre-injury, he recalled how the last time he was cooking regularly was when he was with his partner in 2019. At that time, he enjoyed baking and preparing meals but since then he lost interest, and it does not interest him now.

Before the injury, he said that he liked to have the house clean and tidy.

Social and recreational activities

See MAP reasons

Travel

See MAP reasons

Social functioning

Class 2 and not 3 was selected because he has had loss of some friendships.

He said that he has been living in Sydney with one of his sisters for the past 4 or 5 years. There is only the two of them living there.

He said that he has a younger sister in Sydney and sees her once a week at least. Another sister lives in New Zealand. Twice a week they speak in a family group conference call. He said that they all get along well and that there have not been any fights or arguments.

He reported being generally less tolerant of people outside of his family. He said that this has been an issue since the work issues occurred in 2019. He said that he is not physically aggressive and does not lash out. He said that he has several friends that he does not see any more due to avoiding places where there are groups of people.

Concentration, persistence and pace

See MAP reasons

Employability

See MAP reasons

Score

Median Class

= 2

Aggregate Score Impairment

Total

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7870/23
Applicant:	Budage Pty Limited ATF Tonclay Services Trust
Respondent:	Noel Melhopt

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 Gerard Walsh and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in NSW workers compensation guidelines

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

% WPI

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

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

Psychiatric/

psychological

13.12.22

Chapter 11

n/a

nil

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

[2024] NSWPICMP 567

14 August 2024