Campbell v Cottee Parker Architects
[2025] NSWPICMP 841
•30 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Campbell v Cottee Parker Architects [2025] NSWPICMP 841 |
| APPELLANT: | Christine Lori Campbell |
| RESPONDENT: | Cottee Parker Architects |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 30 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor (MA) erred by failing to provide adequate reasons; failed to take into account relevant considerations; failed to correctly apply the psychiatric impairment rating scale (PIRS), and did not afford the appellant procedural fairness; Held – MA erred in his assessment of three of the PIRS categories and his section 323 deduction; Appeal Panel found reasons adequate and no error in the PIRS assessments; error in section 323 deduction; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 July 2025, Christine Lori Campbell (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 July 2025.
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, 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
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons which will become apparent below.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred as follows:
(a) the Medical Assessor failed to provide adequate reasons;
(b) the Medical Assessor failed to take into account relevant considerations;
(c) the Medical Assessor failed to correctly apply the PIRS, and
(d) the Medical Assessor did not afford the appellant procedural fairness.
In reply, the respondent submits that no errors were made.
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 was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a date of injury of 17 April 2003.
The Medical Assessor obtained the following history:
“Ms Campbell is a 45-year-old divorced mother of three teenagers (aged 13, 15 and 18) residing in Earlwood, where she has rented a house since May 2023. She has 50/50 shared custody of her children through court-ordered arrangements. She has no current partner, with her last relationship ending in mid 2023.
She currently works as a casual interior design lecturer at the Whitehouse Institute of Design in Redfern, teaching 12 hours per week (two days) across three 12-week trimesters annually. She receives workers compensation payments to supplement her income.
Ms Campbell was employed as an interior designer at Cottee Parker Architects at the time of injury. She commenced employment on 28 November 2022 in their Darlinghurst office. She described experiencing workplace bullying from a senior architect who would abuse, yell, scream and bang his hand on tables during meetings and use profanity with colleagues. A specific incident occurred on 8 March 2023 when the senior architect verbally abused another colleague over a Pilates class scheduling conflict. By March 2023, she began experiencing anxiety, sleep problems and fear of abuse from the senior architect. Additional stressors included software license delays, strict deadlines, and high and unrealistic expectations from management. In March 2023, she attempted to resign from her position but was convinced to stay and work from home pending an investigation into the senior architect’s behaviour. She reported experiencing subtle workplace bullying and targeting including exclusion from meetings, withholding of information and passive aggressive behaviour. Her last day of work was 12 April 2023.
Her initial treatment involved GP management who initiated a workers compensation claim. She was prescribed sertraline but discontinued it after two days due to increased anxiety, irritability and anger. She was then prescribed escitalopram. She was referred to a psychologist. There were difficulties initiating antidepressant treatment due to symptoms of suspected bipolar disorder, later confirmed when she was referred to her treating psychiatrist. She was diagnosed with bipolar affective disorder type 2, thought to have been present since early adulthood.”
After setting out details of Ms Campbell’s treatment regime, the Medical Assessor then noted present symptoms as follows:
“Ms Campbell described persistently low mood, anxiety and flattening of her emotions, with periodic exacerbations of depressed mood. She expressed existential distress, questioning, ‘Who am I anymore?’ and loss of confidence. She described difficulty with motivation. She has insomnia, which is managed with medication.
She experiences anxiety in social situations. She has anticipatory anxiety about social interactions and a fear of judgment regarding her employment status. She has developed avoidant behaviours, only shopping at familiar locations. She reported feeling judged when around people other than her family. She is hypervigilant about others’ perceptions. She avoids small talk and casual social interactions. She develops physical anxiety symptoms, including chest tightness and a rapid heart rate.
She described a loss of confidence in her professional abilities and negative self-evaluation, describing herself as “a lonely loser”. She described rumination about job rejections and her financial situation. She has intrusive thoughts about her former workplace. She reported catastrophic thinking about her future prospects.
She described experiencing difficulties with her memory, particularly with dates and timelines.
She denied suicidal thoughts, psychotic symptoms, current panic attacks, aggressive outbursts or self-harm behaviours.“
He added:
“Details of any previous or subsequent accidents, injuries or condition:
Her first contact with mental health services occurred in 2013 during marital difficulties. She attended marriage counselling with her then-husband. During her separation, she had one to two follow-up sessions with the first marriage counsellor. The counsellor identified anxiety stemming from what was characterised as an abusive relationship, particularly involving financial control and coercive behaviour. She told me that physical violence was absent but the relationship featured power inequality and controlling behaviours, such as her husband demanding accountability for time spent outside of the home. GP records indicated a history of stable anxiety with depressive features related to domestic abuse managed by psychology. They noted that the anxiety symptoms were well-controlled before recent events.
Ms Campbell was diagnosed with bipolar affective disorder type 2 by her treating psychiatrist in 2023, a condition she was thought to have developed in her late teens/early twenties. She expressed ambivalence about this diagnosis, acknowledging that in some ways it made sense given her historically high energy personality, but questioned why it was not identified earlier, given her ability to complete multiple qualifications and maintain employment.
According to Dr Vulovic’s assessment in August 2023, her bipolar type 2 appeared to have been present since early adulthood, although hypomanic episodes were not particularly severe or functionally impairing. He noted that the recent workplace events had exacerbated bipolar symptoms. He also diagnosed post-traumatic stress disorder related to workplace trauma, noting that the anger outbursts occurred outside discreet hypomanic episodes and were more likely attributable to post-traumatic stress disorder. I note that the events in the workplace did not meet Criterion A for post-traumatic stress disorder. He may have been referring to domestic violence-related post-traumatic stress disorder. It was noted that her stepfather was violent in childhood.
Before her workplace injury, she managed without psychiatric medications. Her first trial of psychiatric medication occurred after the workplace incident. She denied any psychiatric hospitalisations or suicide attempts before the workplace injury. Pre-injury functioning appeared to have been good, maintaining employment, caring for her children and engaging in multiple social and sporting activities despite any underlying anxiety symptoms. She described herself pre-injury as ‘vibrant, outgoing, social and the life of the party.’
I note a possible history of depression and alcohol use disorder in her sister.”
The Medical Assessor then set out details of the impact of her injury on her social activities and activities of daily living (ADLs) as follows:
“She has withdrawn from all previous friendships. She has difficulties maintaining a full study schedule, completing only two hours out of an expected 10 to 12 hours weekly. She procrastinates on her course requirements. She has withdrawn from previous recreational activities including cricket coaching, netball and social sports. She has reduced her self-care activities cutting her own hair to avoid interactions in a salon. Her appetite is reduced with irregular eating patterns.
Ms Campbell maintains basic self-care routines, including showering daily before work and applying makeup whenever leaving the house. She independently manages her grooming including cutting and dyeing her hair rather than visiting a hairdresser citing both financial constraints and social anxiety about small talk. She walks to the local shops daily for groceries. She cooks meals for herself and her children, maintains the household, and manages the laundry. She reported significant weight gain attributed to medication side effects. She maintains an appropriate professional appearance for work wearing suitable attire for teaching. She reported complete social isolation apart from her children. She has no local friendships and maintains contact with only two friends in England via WhatsApp and occasional Facetime. She has withdrawn from previously enjoyed activities including netball, cricket coaching and football. She occasionally attends Rugby League games with her children but otherwise rarely leaves home except for essential activities. She deliberately shops at the same Woolworths because it is familiar and reduces her social anxiety. She has minimal interaction with work colleagues beyond brief exchanges with the receptionist and occasional work-related discussions. She does not participate in staff social activities or socialise during breaks.
She has a driver’s licence but her car has been inoperable since December, requiring costly repairs leading her to rely on public transport or walking. She occasionally borrows her daughter’s car. She uses bus and train connections for her work commute. She walks to local shops and services. She expressed anxiety about unfamiliar travel situations and has restricted her movements to familiar locations.
She has no active friendships. She has lost contact with family members, including her sister and mother, and expressed difficulty forming new relationships due to difficulties trusting others and fear of judgment. She maintains appropriate parenting relationships with her three children describing open communication and emotional closeness. Workplace social functioning is limited to what is required for her teaching duties. She manages classroom interactions effectively, describing her enjoyment of the mentoring role and the progress of her students. She avoids broader workplace social engagement. Her capacity to spend time with people other than her children is limited by social anxiety, in part caused by embarrassment and fear that she has nothing to contribute.
She successfully manages structured teaching responsibilities, delivering three two-hour classes per day, two days weekly. She has difficulty with self-directed tasks, evident in her Certificate IV studies, where she completes only two hours of the expected 10 to 12 hours weekly. She reported difficulty maintaining focus during job searching, becoming easily distracted and overwhelmed. She often procrastinates. She described challenges completing routine tasks, often leaving them unfinished. Her motivation varies. There have been no concerns about her performance at work. I note she is certified for 32 hours per week. She teaches an ethics class on Mondays at a local primary school between 2:20 pm and 3:00 pm.
On a typical workday, she is up at 7:00 a.m. and ensures her children are awake. She showers, applies makeup, gets dressed and walks to the bus stop. She commutes to Redfern via bus and train. She prepares her classroom and checks her equipment, then teaches her first class from 9:00 am to 11:00 am. She has a coffee break from 11:00 am to 11:30 am and then teaches her second class. She has a brief break between 1:30 pm and 2:00 pm before teaching her final class between 2:00 pm and 4:00 pm. She commutes home and shops at Woolworths on her way. She attends to household chores and laundry, cooks and eats dinner, and spends some time preparing for the next day’s classes when she has classes the following day. At 8:30 pm, she takes her medications, says goodnight to her children and retires to bed around 9:30 pm.
On a non-teaching day, she has no fixed routine. She attempts to study but has difficulties with motivation. She performs household chores and walks to the shops for daily groceries. She searches for jobs. She has limited social or recreational activities.”
Findings on examination were reported as follows:
“Ms Campbell presented on time. She was pleasant and cooperative with recently self-dyed and cut hair and fashionable glasses. Her mood was depressed and anxious with a restricted, matter-of-fact affect. Her speech was of normal rate, tone and volume. She was articulate with organised thoughts. She expressed anxious and depressive thoughts, particularly regarding career and financial concerns and loss of identity. She described catastrophic thinking and fears of being judged by others. There were themes of shame and guilt. She denied suicidal thoughts. No evidence of psychotic symptoms or hypomania was observed. She was alert and oriented. There were no overt cognitive deficits observed during the assessment. Cognition was not formally assessed. Her insight and judgment were intact and she claimed to take medication as prescribed.”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“Ms Campbell is a 45-year-old interior designer who developed an aggravation of bipolar disorder type 2 in the context of perceived workplace bullying and a toxic workplace culture. Her symptoms remain consistent with mild bipolar type 2 depressive phase.
She reported a depressed mood and loss of pleasure in previously enjoyed activities for most of the day for more days than not with insomnia (managed by medication), impaired motivation, lowered self-esteem, impaired concentration and intrusive depressive thoughts. She described changes in appetite and weight gain. There is associated functional impairment.”
The Medical Assessor added:
“Ms Campbell presented as a consistent historian. There was no evidence of exaggeration, hyperbole or malingering. Her presentation was consistent with the medical evidence provided by her treating clinicians. Several inconsistencies were noted in the most recent vocational assessment, which Ms Campbell noted was incorrect. She stated that she had no supportive family or friends, and her social interactions were limited to her children only. Her presentation was consistent with the mechanism of the injury and the mental state examination.”
The Medical Assessor assessed 7% WPI from which he deducted 1/10th in respect of the pre-existing condition.
He then set out a summary of the material he had before him.
This is both detailed and extensive and we propose to consider relevant material in our discussion below.
The appellant’s submissions
These have been summarised above.
More specifically, the appellant submits that the Medical Assessor erred in respect of his assessment in three of the PIRS categories, namely social functioning, concentration, persistence and pace and employability.
In addition, it is submitted that the Medical Assessor denied the appellant procedural fairness in making a deduction pursuant to s 323 of the 1998 Act.
The submissions are as follows:
1. Reasons
(a)There is no analysis or reasoning provided in respect of the Medical Assessor’s reference to the reports of Dr Nagesh and Dr Sherman such that it is difficult to appreciate how the Medical Assessor formed their own opinion.
(b)The Medical Assessor appears to simply recite the history and does not provide any further insight or commentary in support of their argument, particularly so in relation to the report of Dr Nagesh which the Medical Assessor reported was at odds with the available evidence. It is not clear how the Medical Assessor formed this opinion in the absence of any reasons.
(c)What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Assessor arrived at the opinion the Medical Assessor actually formed.
(d)Dr Abhishek Nagesh (Psychiatrist) reported on 6 August 2024 at page 6 of his report that the appellant had no pre-existing condition.
(e)Dr Ian Sherman (Psychiatrist) in his report dated 6 December 2024 at page 12 of his report indicated there was weak evidence that the appellant suffered from bipolar disorder. Dr Sherman also stated that a deduction of 10% was not appropriate and that there was insufficient evidence to suggest the appellant’s recent presentation, at the time of the report, was closely related to the previous bipolar disorder. It was Dr Sherman’s impression that the appellant had adjustment disorder arising from work circumstances.
(f)The Medical Assessor does not adequately respond to and simply repeats the findings of Dr Nagesh and Dr Sherman, which the appellant submits are relevant considerations.
2. Social Functioning
(a)The Medical Assessor assessed the appellant as a Class 2 in respect of the PIRS category ‘social functioning’.
(b)The Medical Assessor took a history that the appellant experienced anxiety in social situations. The Medical Assessor also took a history the appellant had anticipatory anxiety about social interactions. The appellant had developed avoidant behaviours, only shopping at familiar locations. The appellant avoided small talk and social interactions with physical anxiety symptoms, 12 including chest tightness and a rapid heart rate. [DT1] The Medical Assessor also took a history that the appellant had a negative self-evaluation, describing herself as a “a lonely loser”.
(c)The MAC took a history that the appellant had withdrawn from all previous friendships. The appellant reported complete social isolation apart from her children. The appellant had no local friendships and did not participate in staff social activities or socialise during breaks. The Medical Assessor also took a history that the appellant had no active friendships, had lost contact with family members, including her sister and mother, and expressed difficulty forming new relationships due to difficulties trusting others and fear of judgment.
(d)At page 9 of the MAC, the Medical Assessor took a history that the appellant reported she had no family or friends who live nearby, no network of supportive family or friends, that she was no longer volunteering as a cricket coach and was not actively involved in the community.
(e)Despite the history being replete with the appellant’s difficulties with social functioning, the Medical Assessor assessed the appellant as a Class 2. Particularly so in circumstances where the Medical Assessor recorded at page 6 of the MAC that the appellant presented as a consistent historian with no evidence of exaggeration, hyperbole or malingering.
(f)Based on the Medical Assessor’s own history, the appellant’s PIRS rating in respect of 13 ‘social functioning’ [DT2] more closely aligns with a Class 3 rating as a minimum or a Class 4.
3. Concentration, persistence and pace
(a)The Medical Assessor determined that the appellant had difficulty with self-directed tasks evident in her Certificate IV studies where she completed only two hours of the expected 10 to 12 hours weekly.
(b)However, the Medical Assessor is silent on providing a breakdown of how the appellant completed the two hours of coursework. On the available history in the MAC, it is not clear whether the appellant would complete this in short blocks or a longer period of time. The reader is simply forced to draw their own inference.
(c)At page 13 of the MAC, the Medical Assessor does take a history that the appellant reported difficulty maintaining focus during job searching becoming easily distracted and overwhelmed. The appellant often procrastinated and described challenges completing routine tasks often leaving them unfinished.
(d)On 19 November 2024, Dr Vedran Vulovic, treating psychiatrist, noted that completing her coursework has been difficult. She gets distracted, that she was behind in her studies and she had problems keeping up with deadlines, recalling and retaining information.
(e)On 20 November 2024, Dr Carpio noted that she had failed her course, missed two assessments that she was unaware of, having submitted all her other assessments.
(f)Despite referring to this evidence, the Medical Assessor appears to make no light [sic] of the appellant’s apparent difficulties or how it impacts on her concentration, persistence and pace.
(g)On the available evidence, the appellant warranted a Class 3 rating in respect of the PIRS category ‘concentration, persistence and pace’.
4. Employability
(a)The Medical Assessor does not grapple with or address how his opinion differed to the opinion of Dr Abhishek Nagesh (Psychiatrist) in his report dated 6 August 2024. The Medical Assessor simply acknowledges that Dr Nagesh’s opinion was at odds with the available evidence and does not explore this issue more fully.
(b)The Medical Assessor also took a history that the appellant worked as a casual lecturer at the Whitehouse Institute of Design, teaching 12 hours weekly. However, the Medical Assessor is silent on how the appellant’s work hours are impacted by the subject injury and whether her employment on a causal basis is due to her psychological symptoms resulting from the subject injury.
(c)In the context of these matters, the Medical Assessor did not correctly apply the PIRS and thus erred.
5. The s 323 issue
(a)The Medical Assessor at page 10 of the MAC relevantly stated the following: “The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. I note that she was functioning well prior to the injury.”
(b)In circumstances where the Medical Assessor expressly stated the appellant was functioning well prior to injury, the appellant is at a loss as to how the Medical Assessor determined that the appellant’s reported pre-existing bipolar disorder type 2 contributed to the appellant’s impairment.
(c)Further, there was clearly medical evidence supporting the position that the appellant was not suffering from a pre-existing condition as contained in the report of Dr Nagesh dated 6 August 2024.
(d)Also, Dr Sherman in his report dated 6 December 2024 reported there was weak evidence that the appellant may suffer from bipolar disorder. Dr Sherman also reported that a deduction of 10% was not appropriate as there was insufficient evidence to suggest the appellant’s recent presentation, at the time of his report, was closely related to her previous bipolar disorder.
(e)The Medical Assessor appears to simply ignore the evidence available before him.
As indicated earlier, the respondent submits that no errors were made.
Discussion
The ‘Reasons’ Issue
The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons are meant to inform and not to be overtly scrutinised by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (See Vitaz v Westform (NSW) Pty Ltd & Ors [2020] NSWSC667.)
In our view, the Medical Assessor’s reasons were adequate in the context of an overall reading of the MAC.
For example, when the Medical Assessor noted that the opinion of Dr Nagesh was “at odds with the available evidence” he explained why this was so in the MAC and the annexed table.
Clause 1.6 of the Guidelines requires a Medical Assessor to make an assessment on the day of examination, “taking into account the claimant’s relevant medical history and all available relevant medical information…”
In expressing an opinion as to some of this “medical information” the Medical Assessor was simply fulfilling his task as required by the Guidelines.
For these reasons, we do not accept the appellant’s submissions on this issue.
Social Functioning
The Medical Assessor assessed a Class 2 rating and said:
“She has no active friendships. She has lost contact with family members, including her sister and mother, and expressed difficulty forming new relationships due to difficulties trusting others and fear of judgment. She maintains appropriate parenting relationships with her three children describing open communication and emotional closeness. Workplace social functioning is limited to what is required for her teaching duties. She manages classroom interactions effectively, describing her enjoyment of the mentoring role and the progress of her students. She avoids broader workplace social engagement. Her capacity to spend time with people other than her children is limited by social anxiety, in part caused by embarrassment and fear that she has nothing to contribute.”
The descriptor for a Class 2 rating reads: “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The descriptor for a Class 3 reads: “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
For a Class 4 it reads: “Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg, lost partner, close friends.) Unable to care for dependents (eg own children elderly parent).”
There is simply no evidence to support a Class 4 rating in this category since the appellant told the Medical Assessor she was both close to her children and spent considerable time with them “describing open communication and emotional closeness.”
Nor in our view is a Class 3 rating appropriate since there is no evidence of domestic violence or that her former spouse or other relatives, let alone community services are looking after the children.
Indeed, as the Medical Assessor noted, “She maintains appropriate parenting relationships with her three children describing open communication and emotional closeness.”
Although not bound by the opinions of other doctors, they do form part of the evidence which we must consider.
In this regard, we note that Dr Nagesh assessed a Class 2 as did Dr Sherman.
She is able to interact with her students “describing her enjoyment of the mentoring role and the progress of her students.”
In addition, as far as family and friends are concerned, we note that many of them are not local in any event.
We certainly accept, as did the Medical Assessor, that Ms Campbell has some restrictions in this category, but those restrictions are entirely consistent with a Class 2 rating.
Again, the appellant’s submissions fail.
Concentration, persistence and pace
The Medical Assessor assessed a Class 2 rating and said:
“She successfully manages structured teaching responsibilities delivering three two-hour classes per day, two days weekly. She has difficulty with self-directed tasks evident in her Certificate IV studies where she completes only two hours of the expected 10 to 12 hours weekly. She reported difficulty maintaining focus during job searching becoming easily distracted and overwhelmed. She often procrastinates. She described challenges completing routine tasks often leaving them unfinished. Her motivation varies. There have been no concerns about her performance at work.”
The descriptor for a Class 2 reads:
“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.”
For a Class 3 it reads:
“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.”
We accept that the examples in Table 11.1 are examples only and are not exclusive, but in this instance the Medical Assessor’s description of the duration for which Ms Campbell can concentrate and persist accords with the Class 2 descriptor almost exactly.
Ms Campbell is clearly able to focus for longer than 30 minutes given her teaching workload and the necessary preparation this would entail. She is also able to read “more than newspaper articles.”
As expressed by Member Carolyn Rimmer in Wright v Ngroo Education Incorporated [2022] NSWPICMP 106: “Concentration, persistence and pace is a category where the assessor can apply clinical judgment and considerable weight must be given to the assessor’s observations in the clinical examination. The assessor, during the clinical examination, is able to observe the worker’s ability to concentrate, assess persistence with the cognitive demands of the assessment, and observe the pace at which the worker can engage.”
The observations of Member Rimmer, whilst not binding, highlight the significance and probative value of the evidence obtained by a medical assessor on the day of examination when it comes to the concentration, persistence and pace category.
In short, nowhere has the Medical Assessor described a Class 3 rating.
It must be remembered that cl 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…”
For these reasons, we do not agree with the appellant’s submissions in this category and they fail.
Employability
The Medical Assessor assessed a Class 3 rating and said: “She is working 12 hours per week in a less stressful role.”
We agree that these reasons set out in his table are not very detailed, however, in the body of the MAC, the Medical Assessor set out considerable detail about the nature and extent of her current employment.
The descriptor for a Class 3 rating reads:
“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).”
For a Class 4 it reads: “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.”
Once again, the appellant’s particular employment fits precisely with the descriptor for a Class 3 rating.
We are frankly at a loss to understand the appellant’s submissions on this issue.
The Medical Assessor took a history that the appellant worked as a casual lecturer at the Whitehouse Institute of Design, teaching 12 hours weekly.
What is meant by the submission that “the MA is silent on how the appellant’s work hours are impacted by the subject injury and whether her employment on a causal basis is due to her psychological symptoms resulting from the subject injury” is unclear.
Obviously the Medical Assessor noted her current employment and the obvious inference was that that was as a result of her injury (his job was to assess that) and accordingly rated a Class 3.
In addition, we note the Medical Assessor’s comments regarding the opinion of Dr Carpio. The Medical Assessor said:
“On 25 September 2024, Dr Emmanuel Carpio noted that she had commenced a new job teaching and was loving it, was doing well and was not stressed about the job.
On 1 October 2024, Dr Carpio noted that he discussed her progress at work and that she was doing well and completing her course work while working well. On 23 October 2024, he noted that she was work well in her teaching role with no increase in work-related anxiety. She was noted to enjoy her work as a teacher and was getting good feedback from students. She was noted be keeping up with her schedule to complete her final assessment due on 17 November and was aiming to increase her hours after submission of her final assessment.
On 20 November 2024, Dr Carpio noted that she had failed her course, missed to [sic] assessments that she was unaware of having submitted all her other assessments. She withdrew from her course and her work hours were increased to eight hours, three days per week.”
Whilst she may have had some difficulties at that time with the course work, she nonetheless continued working and was in fact certified as fit to work “eight hours, three days per week.
The s 323 Deduction
On this issue, we agree with the appellant’s submissions for reasons that follow.
The Medical Assessor made the following comments:
“Ms Campbell was diagnosed with bipolar affective disorder type 2 by her treating psychiatrist in 2023, a condition she was thought to have developed in her late teens/early twenties. She expressed ambivalence about this diagnosis, acknowledging that in some ways it made sense given her historically high energy personality, but questioned why it was not identified earlier, given her ability to complete multiple qualifications and maintain employment. According to Dr Vulovic’s assessment in August 2023, her bipolar type 2 appeared to have been present since early adulthood, although hypomanic episodes were not particularly severe or functionally impairing. (our emphasis) …
Before her workplace injury, she managed without psychiatric medications. Her first trial of psychiatric medication occurred after the workplace incident. She denied any psychiatric hospitalisations or suicide attempts before the workplace injury. Pre-injury functioning appeared to have been good, maintaining employment, caring for her children and engaging in multiple social and sporting activities despite any underlying anxiety symptoms. (Our emphasis)
Under section 11(b), the Medical Assessor explained the contribution from the pre-existing condition as: “A history of recurrent mood disorder (hypomanic and depressive episodes) and anxiety, interpersonal difficulties (for example, difficulties trusting others), also associated with and aggravated by exposure to domestic violence in her marriage.”
In the Panel’s view, this does not explain how her previous psychological condition contributed to her current psychiatric impairment. People can have previous recurrent psychiatric episodes that do not contribute to the current impairment.
In his report dated 6 December 2024, Dr Ian Sherman noted “weak evidence that she may suffer from bipolar disorder.”
In 2013 there were domestic violence issues that led to psychiatric intervention and it may be that Dr Vulovic was referring to that period.
Either way, the appellant was clearly functioning at a high level in a demanding job prior to her work-place injury.
Section 323 of the 1998 Act states:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Cole v Wenaline Pty Ltd (2010) NSWSC 78 (‘Cole’) is relevant authority for s.323 of the 1998 Act. It is noted that in order for a deduction to be made under s.323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment.
In Fire & Rescue NSW v Clinen [2013] NSWSC 629, Campbell J referred to D'Aelo v Ambulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365; and Cole. Campbell J said at [32]:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s.323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
Having regard to these authorities, there is no compelling evidence to support a conclusion that any pre-existing condition the appellant had actually contributed to the impairment.
In short, we do not consider that any deduction is warranted.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 January 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4955/25 |
Applicant: | Christine Lori Campbell |
Respondent: | Cottee Parker Architects |
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 Dr Clayton Smith 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 WorkCover Guides | 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) |
| Psychological | 17 April 2023 | Chapter 11 | Chapter 14 | 7% | Nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
[DT1]CHECK
[DT2]CHECK
0
5
0