Chambers v WEW Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Chambers v WEW Pty Ltd [2024] NSWPICMP 250
APPELLANT:	Tara Valene Mafi Chambers
RESPONDENT:	WEW Pty Limited
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	30 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; need for reasons for diagnosis; use of online investigation report; reassessment; Tasevski v Westpac Banking Corporation referred to; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 November 2023 Tara Chambers lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 October 2023.
Ms Chambers 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was capable of being made out, being that the Medical Assessor made a demonstrable error in the assessment of social functioning in under the Psychiatric Impairment Rating Scale (PIRS). We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Chambers was employed by WEW Pty Limited to provide staging and sound services and to co-ordinate events . She suffered a psychological injury on 8 January 2020, which she said was caused by working long hours, under pressure. She said that she was required to undertake an increased workload due to the illness of WEW’s director, that she was underpaid and that taxation and superannuation contributions were not made.
Ms Chambers’ injury was accepted but WEW disputed that she suffered at least 15% whole person impairment (WPI).
The Medical Assessor assessed 8% WPI, assessing Ms Chambers in class 2 for all of the PIRS categories except employability, which he assessed as class 5. He said that Ms Chambers was inconsistently vague and that he placed greater weight “on the more objective evidence on file” being a on-line investigation report.

PRELIMINARY REVIEW

We 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, we determined that Ms Chambers should undergo a further medical examination because the MAC did not set out the reasoning on which the Medical Assessor relied to reach his diagnosis.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
Medical Assessor Blom of the Appeal Panel conducted an examination of the worker on 4 April 2024 and reported to us. The report forms part of these reasons.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Chambers submitted that the Medical Assessor failed to provide a diagnosis of her condition in the body of the MAC, let alone provide any reasoning for it. She said that under the heading “Summary of injuries and diagnoses” the Medical Assessor described some history and symptoms then dealt with non-medical evidence and his “impression” regarding her poker playing. She said it was unclear whether the Medical Assessor had made the diagnosis of adjustment disorder noted in the PIRS rating form or assumed it and that the point was important because an adjustment disorder does not persist for more than six months after the stressor is removed. She said that error warranted re-assessment.
Ms Chambers noted that the Medical Assessor described her as vague, though the alleged inconsistencies and vagueness were not described. She said that the Medical Assessor relied on an online investigation report dated 22 August 2022, though there was nothing in it which was inconsistent with what she said in her statements, or to the Medical Assessor. Ms Chambers said that it was not clear why the Medical Assessor had rejected her statement and that the Medical Assessor’s impression about her ability to play poker had infected his assessment of multiple PIRS categories and the entire MAC.
With respect to the PIRS categories, Ms Chambers submitted that the evidence and the statements in the PIRS rating form warranted assessment in class 3 for self care and personal hygiene, social and recreational activities, social functioning, and concentration, persistence and pace.
In reply, WEW submitted that the Medical Assessor diagnosed an adjustment disorder and that it was not necessary to set out the diagnostic criteria because “adherence to diagnostic criteria is not mandatory and should be subjected to clinical judgement”, referring to State of New South Wales v Seedsman.[1] WEW said that Ms Chambers could not rely on material extrinsic to the MAC, being the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (DSM-5) to show demonstrable error.
[1] [2000] NSWCA 119 (Seedsman).
WEW said that the Medical Assessor clearly outlined that he found Ms Chambers’ description of poker playing as outlined in the investigation report to be inconsistent and vague. WEW said that the Medical Assessor set out his path of reasoning to his impression that Ms Chambers had residual capacity to play poker, including that the fact that she played poker was not raised in any medical history until the investigation report was revealed. The Medical Assessor’s conclusion was consistent with that of Dr Samuell.
Dealing with the PIRS categories, WEW submitted that there was no error and that Ms Chambers sought to cavil with the assessment made for self care and personal hygiene. It said that the need to interact with other players meant that poker was a social and recreational activity. It said that the assessments for social functioning and concentration, persistence and pace were open to the Medical Assessor.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[3] the Court of Appeal held that an 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] [2006] NSWCA 284.

The MAC

The Medical Assessor set out a detailed history of the injury and briefly summarised Ms Chambers’ treatment. He set out her present symptoms:
“Ms Mafi Chambers reported that she has anxiety attacks ‘every day’ and ‘constantly’. She feels ‘empty’ and has lost her sense of self. She feels ‘stuck’ waiting for the investigation into her super and taxation, and trying to recover the money that the owner owes her.
She said she is angry at herself for allowing this to happen. She thought she was a good judge of character, but with hindsight, she realises that the owner was dishonest and that she should not be trusted. She thought she was friends with the owner.
She reported she had no problems with her weight until she was put on a medication (likely Avanza/Mirtazapine), and she gained 25kg. Since she changed medication, she has not been able to lose the extra weight. She said she has no appetite and only eats because she has to. She stated even though she does not eat bad food and she is a vegetarian, she has not been able to lose the extra weight. She does not exercise. She said her friend always makes healthy food.
She said her anxiety symptoms are triggered by crowded places. I noted she can only tolerate small social gatherings, e.g. at a poker table.
She described having trust difficulties.
She reported having depressed variable moods.
She has reduced enjoyment and motivation.
She described having reduced concentration and memory overall.
She has fleeting suicidal thoughts.
She reported having chronic sleep difficulties.
She described being tense and difficult to relax.
She reported having a low tolerance for frustration.
Ms Mafi Chambers denied being physically aggressive or having an increase in her alcohol consumption.”
It appears that some of those statements are the Medical Assessor’s commentary, rather than the history of symptoms obtained, an example being the reference to tolerating small gatherings around a poker table.
The Medical Assessor speculated as to the medication which caused Ms Chambers’ weight gain though she set out in her statement that she was prescribed Avanza and the use of that medication and its effect are confirmed by her general practitioner’s records (see, for example, Dr Sayyal’s note for 7 January 2022).
The Medical Assessor described Ms Chambers’ social activities and activities of daily living. He said:
“Ms Mafi Chambers was generally vague and it was difficult to clarify parts of her history even when we discussed the documentation from the file.
She has been living with a friend, Bernie, for about five years and said that they have known each other for 20 years and she is her best friend. She also said that Bernie is her carer and Bernie is currently studying.
....
Ms Mafi Chambers reported that she struggled to leave her home and when she goes out she will dissociate and will suffer full-blown panic attacks. She said she would go out to the doctor and the chemist, which is not for long, but could not provide further information about it and could not estimate this would take. She said it can be weeks between going out and mostly, she will go out with her housemate. She said she asks Bernie to buy groceries and if Bernie is busy, she will ask another friend. Aside from these two friends, she has no contact with other friends. She was using social media and does not post online now.
She said she suffers bad anxiety when driving and prefers to be accompanied when she drives to the shops.
Ms Mafi Chambers said she will spend time in the backyard and does not do anything all day. On further enquiry, she could not recall any other activities she would do day to day. I asked her what she did yesterday and she said she prepared paperwork and made notes for today's assessment, and that Bernie helped her. She said she might write for 15 minutes and then Bernie would read through and write some notes about what she had written, and did this for a couple of days in the last week.
At this point, one hour into the assessment, I asked Ms Mafi Chambers if there were other issues from her notes, that we have not yet covered. She reviewed her notes and said that we had covered everything in her notes, and we continued the assessment for another half an hour.
I asked about playing poker and competing, and Ms Mafi Chambers said she would normally play several times a week and that she has told all her doctors, psychologists and IME psychiatrists about her poker playing, and has never lied about it.
She used to play in high-stakes tournaments with $10,000 by-ins [sic] and $1 million prizes. She mostly played Texas Hold'em and has won the New South Wales championship in the past. She said she told Dr Chow about it (I note Dr Chow did not record her poker), and that her psychologist pushed her to play and that is why she continued to play, but she could not focus and suffered a panic attack while playing.
She stated her housemate had to go with her for support. She said the last time she played was 18 months ago and this was part of her gradual exposure therapy. She has only played maybe three times in a year.
I asked about the circumstances of playing, when she would go and how long she would play for and she was vague and could not provide any detailed history.
She later said that the small games might be a couple of hours, and the bigger games could go on for five days. She said the last time she played, after one hour she had to take a break. She went to the bathroom and vomited. She later finished the game. She said she could not remember what she was doing and could not do the calculations in her mind and her mind blanked out. She said her housemate does not play and would go with her while she played. She said initially she felt she needed to player poker, to relax and take her mind off all her financial problems, and then when she played she realised her concentration was not there and she could not play.
Ms Mafi Chambers discussed that Dr Samuell had assessed her three times, but at his last assessment in August 2022, his attitude changed. He talked about the online investigation report about her poker playing and made accusations. She said that she did not know that they had undertaken an online investigation on her before that assessment.
She said that the only interstate trip she had taken since the subject injury, was to the Gold Coast where she played a series of competitions over a few days, and she stated that she had not played any high-stakes tournaments since her injury.”
The Medical Assessor’s summary of injuries and diagnoses was somewhat rambling. He repeated some of her history and said:
“…She developed having chronic depression and anxiety symptoms as a result of her work, which have not resolved over time.
She separated from her third partner after her work injury and this was an on-and-off relationship.
She normally played poker regularly and competed at a high level. Since her psychiatric injury, she had played fewer games and competed at a lower level, and was still winning some games and had been placed in the top 10 players in several competitions. Her last game was on 8 July 2022. She discovered her online activities were being investigated when she had an IME assessment.
My impression is that she can play poker for a few hours, and sometimes for several games over a few days, which requires concentration for more than half an hour at a time and this is intellectually demanding. I noted she has social anxiety and panic attacks, and she is able to complete poker competitions.
In terms of WPI assessments, I noted that Dr Chow’s assessment contained a partial history and did not record her poker games, I do not think that his report is particularly representative of her overall functioning.”
There is no diagnosis in the body of the MAC.
Concerning the consistency of presentation, the Medical Assessor said:
“I have discussed the online investigation report with her and noted her response. She was noted to be inconsistently vague, which makes it difficult to assess her history with precision and obtain a clear picture of her psychological status, and a greater weight was placed on the more objective evidence on file.”
The Medical Assessor referred to Ms Chambers’ statements and to WEW’s insurer’s dispute notice dated 8 September 2022. He noted the reports of Ms Chambers’ treating practitioners. He said:
“Quantumcorp investigation report, 22 March 2020, noted the owner refuted Ms Mafi. Chambers’ allegations.
Quantumcorp, 22 August 2022, noted Ms Mafi Chambers played poker at Star Casino on 8 July 2022, then WPT League in Sydney in April 2022, 28 February 2022 Star Casino, and 2 to 4 December 2021 at the Kingdom Poker Series, WPTL on the Gold Coast 25 to 28 February 2021. In terms of a Facebook entry, it noted 17 April 2022 she came seventh. On 8 March 2021 she was a winner at the Gold Coast event and also placed third in another event. In February 2021 it was noted she had won some games, as well as in January 2021 and December 2020. In February 2020 she was the winner overall.
Ms Mafi Chambers started psychologist treatment in early 2020. I noted photos of Ms Mafi Chambers attending poker competitions and she was well-groomed and presented appropriately for the games. Some photos showed her smiling. She attended an interstate poker competition.
The online entries noted Ms Mafi Chambers attended the games after she ceased work in January 2020, due to her psychological injury:
o   8 July 2022
o   16 April 2022
o   28/2/2022
o   2-4/12/2021
o   25-28/2/2021
She posted online about her competitions:
o   17/4/22, placed 7th
o   8/3/2021, winner and final table 3rd place
o   6/2/21, winner, final table 2nd
o   4/1/21, final table 6th
o   7/12/20, final table 3rd
o   21/4/20, winner
Dr Doron Samuell, 10 August 2022, provided a further report and noted that Ms Mafi Chambers’ adjustment disorder had not resolved. She intended to be a professional poker player. He discussed the online activities, Ms Mafi Chambers’ response was that her GP and psychologist encouraged her to play, but she could not recall the dates of the tournaments.
She is dependent on a friend and does not see other friends anymore. He noted Dr Chow did not record any history of playing poker, and she told Dr Chow she hardly went out and the online activities were also at odds with Dr Phillips' history. He advised he was not comfortable making a diagnosis due to the inconsistencies.”
The diagnosis of adjustment disorder appears in the PIRS table, without explanation as to why the Medical Assessor considered it appropriate. We set out the Medical Assessor’s reasons for each of the impugned PIRS assessments below.

Diagnosis

Our review of the MAC shows that the Medical Assessor did not provide reasons for his diagnosis of adjustment disorder.
Paragraph 11.4 of the Guidelines requires a Medical Assessor to make a diagnosis and specify the diagnostic criteria on which it is based. He did not do so. Seedsman, to which WEW referred to support its argument that the failure to set out the diagnostic criteria for the diagnosis was not a demonstrable error, was a claim for damages in negligence and not a claim to which the Guidelines applied.
According to DSM-5, an adjustment disorder by definition is characterised by symptoms that do not persist for more than six months after the stressor, or its consequences, have terminated. If this condition is not met another diagnosis should be made. It was important that the Medical Assessor explain the basis for the diagnosis when he accepted that Ms Chambers had symptoms resulting from an injury three years before.

In Vannini v Worldwide Demolitions Pty Ltd[4] (Vannini) Gleeson JA, with whom the other members of the Court of Appeal agreed, said that a demonstrable error is a material error which is apparent from the certificate[5] though “there is no express limitation on the material to which the Panel may have regards when assessing whether the certificate ‘contains’ a demonstrable error”.[6]
[4] [2018] NSWCA 324.
[5] At [77].
[6] At [78].
Gleeson JA cited with approval an example from the Second Reading Speech when the relevant legislation was introduced:
“On the other hand, it is not in dispute that an error is not demonstrable merely because the Panel disagrees with the opinion of the approved medical specialist. That accords with the example given in the second reading speech relating to the Workers Compensation Legislation Amendment Bill 2001 (No 2) (NSW), by which s 327 was introduced into the Management Act, as follows:
‘A demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion’.”
In this case, the experience of the medical members of the Panel dictates that the diagnosis of adjustment disorder is incongruous in the circumstances. The demonstrable error with respect to the Medical Assessor’s diagnosis is the failure to disclose his path of reasoning and the lack of information to support it.[7]
[7] See, for example, State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [26], discussing the applicability of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480.
That demonstrable error necessitated a re-examination so that a diagnosis could be formed, based on the history. We adopt the diagnoses made by Medical Assessor Blom in his re-examination conducted on behalf of the Panel.

Poker

Having made a diagnosis, the Medical Assessor was required to assess Ms Chambers under the PIRS. There are several references in the MAC to Ms Chambers being vague but the only history which supports that statement is the part of the history where the Medical Assessor and Ms Chambers discussed her daily activities. The other references to vagueness and inconsistency in the MAC essentially focus on the differences between the on-line investigation report and the history Ms Chambers provided.
The Medical Assessor considered the on-line investigation to be “objective” but, as with surveillance evidence, reports of this nature must be viewed critically and in context. When reviewing such evidence, it is particularly important to remember that the Medical Assessor was required to assess Ms Chambers as she presented on the day of the examination.[8]
[8] Guidelines paragraph 1.6.
The Medical Assessor was also required to engage with the evidence in the file. We consider the evidence in the file, discussed below, does not support the Medical Assessor’s decision to place “greater weight” on the online investigation report.
The deemed date of injury agreed by the parties was 8 January 2020, before she had ceased working. Ms Chambers prepared a statement with the assistance of an investigator appointed for WEW on 5 March 2020. She said:
“In my spare time I play poker. I won a ticket to play a game in Melbourne. I spoke to Kylie about using some annual leave and having a couple of days and she agreed to it. I went to Melbourne for a couple of days. I won another ticket whilst I was there for Melbourne. I came back and worked for a couple of days then went back to Melbourne for the game. During this time I was in contact with Kylie and was running through quotes with Kylie over the phone.
Whilst I was in Melbourne in first week of January 2020, I didn't receive my pay on 8 January 2020. I messaged Kylie saying my pay didn't go through. Her response was, ‘I don't know why let me check’. I couldn't afford to lose focus on my poker game and was stressing out that this wasn't happening again.”
In a statement prepared with the assistance of her solicitors and dated 4 April 2023, Ms Chambers said:
“I used to do things like playing poker. I would do this 5-7 times per week. Since my injury I have tried to do this a few times per year. Berni and my treating doctors have been pushing me to go as a part of my recovery and treatment but this is very difficult. When I have tried in the past I had to rely on Berni to help me cope. I have to take Valium to leave the house and I experience major anxiety and panic attacks. When I get home, I am a complete mess. It used to be such a major part of my life. I do not go to poker anymore.
…
The report refers to my attempts to play poker. I describe this at paragraph [11] above. I have told the doctors (including Dr Samuell for the insurer) about this when I have seen them. In the past my psychologist and Berni had pushed me to try and play poker as a part of my recovery and treatment.
I initially thought that playing poker would help me get back to normal. thought it would help get my mind off all my anxiety and stress. To my absolute devastation when I tried to play, I had major issues with my memory, focus, concentration, and major anxiety. It was heartbreaking for me. I told my doctors about this and they encouraged to keep trying, hoping it would get better. It got worse and worse. I was devastated. I just couldn't play like I did before. Since my injury I have only tried to play poker a few times per year. When I did, I could not attend on my own. Berni came with me to support me. I got to the point where I didn't even want to try and go to a game anymore. I would get major anxiety attacks which progressed into full blown panic attacks at the poker table. I would have to run to the bathroom hyperventilating, feeling like I couldn't breathe and vomiting. Berni had to help me with this. I had to take Valiums to leave the house. I was not coping. The last game I went to was about 9 months ago. I experienced too much anxiety and panic attacks and I was not coping. I do not go to poker games any more.”
Dr Chow saw Ms Chambers at the request of her solicitors. He did not have a history of her participation in poker competitions but it must be said that the only detailed history in his report dated 14 June 2022 was of the injury and he does not appear to have discussed her pre-injury activities.
Dr Samuell prepared three reports for WEW. The first is dated 15 May 2020 and Dr Samuell diagnosed adjustment disorder with mixed disturbance of mood, which he considered mild to moderate in extent. Dr Samuell’s second report is dated 13 May 2021 and he recorded:
“She said that, previously, she was heading towards playing poker professionally, but has tried to play some games and has had difficulty with her focus.”
He also said:
“She says that she was intending to become a professional poker player. I have no idea about how realistic or appropriate that choice of occupation may be for her. It is not something that I would have thought would be a natural progression from her previous employment.”
Nothing in that report is in fact inconsistent with the online investigation report, though it appears that Dr Samuell may not have explored the history Ms Chambers provided about her attempts to play poker in detail. His opinion changed in his report dated 10 August 2022 after reviewing the online investigation report.
On 14 September 2022, after WEW’s insurer had issue a s 78 notice denying Ms Chambers’ claim based on the investigation report, her general practitioner, Dr Sayyal, recorded:
“has seen psychatrist
is started on Prazosin
also taking valium PRN
pt use to play poker prior to her current injury
has been eoncouraged by psychologist to return to same as a part of her therapy
she went to poker ? 3 times in last year
insurance is claiming that if she can play poker then she can return to work
pt is not even close to any state where seh can consider return to wrk
has significant anxiety and stress
stil finding it hard to manage her anxiety” [sic]
Dr Phillips, Ms Chambers’ psychiatrist, did not comment on the issue but the only reports in the file are short reports to her general practitioner about treatment.
Ms Chambers’ psychologist, Ms Sorrentino, prepared a report dated 1 May 2023 at the request of her solicitors. She said:
“As part of Ms Chambers treatment plan to assist in managing her depression and anxiety, she was encouraged to integrate back into the community by engaging in activities that require her to get her out of her house and interact with others. We set SMART goals in sessions that encouraged Ms Chambers to participate in poker games again. The intend was to create structure to her day and engage in positive activity scheduling to determine if there was an improvement in her mood. It was also a strategy to manage anxiety
It is my understanding that Ms Chambers attended small entry level poker games, as part of her recommended gradual exposure therapy. Prior to her psychological injury she would regularly play high stakes poker with a reported entry level of $10 000. It was therefore recommended that she re-engage with poker at a basic level to assist her in rebuilding confidence as part of her treatment and recovery plan.
Ms Chambers reported that in order to complete this goal she needed to take Valium to manage her heightened anxiety and required her support person to attend with her. Ms Chambers reported that throughout the game she lost focus and was unable to concentrate and experienced difficulties with her memory. She required rest breaks and would regularly retreat to the restrooms where she would experience severe panic attacks, often causing her to leave the game early.
Ms Chambers has not attempted to attend any further poker games over the last 10 months.”
It was appropriate for the Medical Assessor to seriously consider the online investigation but considerable care was required when reviewing the report and drawing conclusions from it, particularly if he was to rely on the report as being “objective”.
It must be borne in mind that an online investigation report is prepared for the purpose of defending or seeking to defeat Ms Chambers’ claim. Essentially it sets out everything that its authors could find about Ms Chambers on the internet and by undertaking various searches. Importantly, the report commences by saying that Ms Chambers does not have an active online presence. Much of what could be found is irrelevant or out of date, and her Linked-in profile falls into the latter category. The businesses which Ms Chambers operated have ceased and their registrations were cancelled almost 10 years ago. Importantly too, the report is incomplete because the attachments which support the extracts in the report are not included.
A player profile from a website called Global Poker Index is undated. Most of the photographs in the report do not show Ms Chambers and , importantly, none of them were posted on social media by Ms Chambers. The Medical Assessor’s comment that “[s]he posted online about her competitions” is incorrect – the report shows that the posts about poker competitions were made by “WPT League Sydney”.
The date of injury pleaded in the Application to Resolve a Dispute and agreed by the parties was 8 January 2020. That was the first date on which Ms Chambers was not paid by WEW but she said in her statement that the last date she worked was 7 February 2020. That is after the first tournaments described in the online investigation report and Ms Chambers described those tournaments in her first statement to WEW’s investigator dated
5 March 2020.
The second competition set out in the online investigation report was a month after the trip to Melbourne described in Ms Chambers’ first statement. The third reference is dated
24 April 2020 and is a request to the FaceBook followers of the WPT League page to caption a photograph of Ms Chambers playing poker. Without more, it is not evidence that she played in a competition at that time. There are references to four competitions between December 2020 and March 2021 then nothing until December 2021 and three examples in 2022, though the evidence that Ms Chambers played is, without the attachments to the report, is only the contention of the report’s author.
The last reference in the report which is said to relate to Ms Chambers participating in a poker competition was in July 2022, more than a year before the MAC. The contemporaneous evidence and Medical Assessor Blom’s report confirm a significant decrease in her level of functioning since that time and well before the date of the MAC.
The online investigation report does not show that Ms Chambers is consistently untruthful nor is it inconsistent with the evidence in her statements and in the file, including her history to Dr Samuell at the time of his second report. There is no evidence to refute Ms Chambers’ statement that she has not played poker since July 2022. The medical evidence in the file shows a downturn in her condition after that date and that is supported by the history provided to Medical Assessor Blom. The online investigation did not justify the weight that the Medical Assessor gave it. When assessing the PIRS categories, he was required to assess Ms Chambers as she presented on the day, taking care not to be unduly influenced by events over a year before.
We have reviewed only the PIRS tables about which Ms Chambers made submissions and they are discussed below.

Self care and personal hygiene

In Tasevski v Westpac Banking Corporation,[9] Schmidt AJ said:
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.”
[9] [2024] NSWSC 401.
Setting out his findings on examination, the Medical Assessor said:
“Ms Mafi Chambers had a stud and long dark colour hair, which was not tied up. She wore all black attired…”
That statement conveys nothing about whether Ms Chambers was well groomed or dishevelled on the day of the examination.
The Medical Assessor assessed Ms Chambers in class 2 saying:
“Ms Mafi Chambers said she only showers twice a week without prompting. She orders takeaway food if her friend does not cook. She does not always change her clothes. She stated her friend prompts her with her self-care. She described a sufficient level of self direction and she initiates all self-care activities herself and can maintain a basic level of nutrition and hygiene without support or prompting, and is independent in living.”
Those reasons are not consistent with the history in the body of the MAC where the Medical Assessor said:
“She said she does not do any housework and her housemate does all of it, because she does not feel up to it. She said that if Bernie does not remind her, she will only shower twice a week. With prompting she showers more, but even then she does not always shower every day.”
That history does not support assessment in class 2 as a mild impairment, which connotes an ability to live independently. It is not the description one might expect of a 38 year old woman sharing a house with a friend.
The Medical Assessor did not have regard to her second statement where Ms Chambers said:
“I struggle to motivate myself to do very much. I often skip meals and showers. Berni often prompts me to do things. I am not sure what I would do without her. She does most of the household chores and shopping. She makes meals for me. Otherwise sometimes I just do not eat or I get takeaway.
…
Berni will help me by doing things like picking out my clothes, doing my hair, put my hair in braids so it doesn't get tangled, give me haircuts and making sure I look presentable.”
The Medical Assessor relied on photographs in the online investigation report as showing that Ms Chambers was well-groomed and appropriately presented for the poker competitions that she attended. A careful review of the online investigation report shows that the last photograph in which Ms Chambers appears was taken on 8 March 2021, three and a half years before the Medical Assessor’s examination. Ms Chambers is depicted wearing a cap and the photograph is somewhat fuzzy. The Medical Assessor’s reliance on those photographs was inconsistent with his obligation to assess Ms Chambers on the day of the examination.
The error required reassessment and Medical Assessor Blom’s report on behalf of the Panel is attached. The fact that Ms Chambers now requires assistance from a carer supplied by the NDIS since her friend became unwell also supports assessment in class 3.

Social and recreational activities

The Medical Assessor assessed Ms Chambers in class 2 because:
“She attended occasional social recreational activities. She competed in poker games with the last competition in mid 2022. She played multiple games in the same night, and some competitions ran for a few days. She completed the games. She has not attended since she was told her online activities were investigated. She went with her friend, who supported her. When playing, did so without prompting or support, as she cannot rely on another person during competitions.
She was actively engaged in playing. She played with different players each time. Overall, this is consistent with 2 and not 3.”
The Medical Assessor relied only on the fact of Ms Chambers’ participation in poker games and he did not engage with her evidence as to how difficult she found it. It could be argued that playing poker by competing in competitions was not a recreation and that her participation was not social but she has ceased doing that in any event.
In the body of the MAC the Medical Assessor recorded that Ms Chambers no longer goes fishing, plays drums, writes movie scripts and plays snooker and that she had difficulty leaving the house. That is, Ms Chambers was no longer doing the things she enjoyed for recreation at the time of the Medical Assessor’s examination.
Those factors are consistent with assessment in class 3.

Social functioning

Assessing Ms Chambers in class 2 the Medical Assessor said:
“She had an on-and-off partnership and they did not live together. She separated from that partner again after her work injury and reported her psychological symptoms to be a factor.
She maintains at least 2 close friendships and has a good relationship with them.”
The most important aspect of the classes in the PIRS table is the description of the level of impairment. What follows are examples of the abilities and activities relevant to the assessment of impairment.[10]
[10] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65].
The history recorded by the Medical Assessor is that Ms Chambers has no contact with friends other than the friend she lives with and one other. Though this impairment is significant, we agree that she is maintaining relationships and the assessment in class 2 was open to the Medical Assessor.

Concentration, persistence and pace

The Medical Assessor assessed Ms Chambers in class 2 and said:
“Ms Mafi Chambers reported having reduced concentration. She could focus on poker games for more than 30 minutes, which is an intellectually demanding task.
Her concentration, persistence and pace, as presented on the day of assessment are consistent with 1 or 2.”

The Medical Assessor’s assessment is based on Ms Chambers’ ability to play poker which she no longer did at the time of the assessment. While a Medical Assessor is able to form his or her own view based on a worker’s engagement during the assessment, the Medical Assessor observed that Ms Chambers was vague. That is incongruent with assessment in class 1 or 2 and it was necessary for the Medical Assessor to explain why he considered the assessment appropriate.
For the reasons set out in the attached report, we consider that assessment in class 2 is appropriate.

Conclusion

Ms Chambers accepted the Medical Assessor’s assessment in class 2 for travel and class 5 for employability. We consider that she should be assessed in class 3 for self care and personal hygiene; class 3 for social and recreational activities; class 2 for social functioning and class 2 for concentration, persistence and pace.
When the scores are arranged in ascending order (2, 2, 2, 3, 3, 5), the median class score is 2.5 rounded to 3 and the aggregate score is 17. Under Table 11.7, that converts to 19% WPI.
For these reasons, we have determined that the MAC issued on 9 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W3263/23
Appellant:	Tara Valene Mafi Chambers
Respondent:	WEW Pty Ltd
Date of Determination:	12 December, 2023

Examination Conducted By:	Dr. Graham Blom
Date of Examination:	4 April, 2024

The workers medical history, where it differs from previous records

In his Medical Assessment, Dr Hong recorded a thorough history up until the time of the injury, I have accepted this, but have reviewed Ms Chambers history following the injury focusing, in particular on the matters under appeal.

At the time of leaving work, Ms Chambers said that her primary symptoms were of “stress and anxiety”. She was also experiencing panic attacks, disturbed sleep and marked reduction in her appetite due to gastrointestinal upset. She did not relate any significant symptoms of depression, initially. She consulted her GP who initiated an antidepressant/anti-anxiety medication and referred her to a psychologist, Ms Joanne Sorrentino. She initially began consulting Ms Sorrentino approximately every 2 to 3 weeks and has continued consulting her up until the present.

Over the following year or so, Ms Chambers said that her symptoms gradually deteriorated because of the ongoing financial stress that she was experiencing related to the difficulties that she had with the employer. Specifically, she became aware during this time that her employer had not contributed the required funds to her superannuation account, nor had she continued payment of Ms Chambers Income Protection Insurance. Ms Chambers had also consulted the Taxation Department about her missed wages and found that of the wages that she had been paid there had been insufficient PAYG tax submitted and so she also had a liability to the Taxation Department. She consulted her lawyer and began proceedings against her employer but as a result of the substantial stress of all of these issues she found that her anxiety became increasingly severe and she began to feel increasingly depressed characterised by low mood, loss of motivation, tearfulness, anhedonia and increasing feelings of helplessness and hopelessness. She became more withdrawn and increasingly anxious if she left the house. Prior to her injury she had been sharing house with a friend of hers, Bernie, with the understanding that eventually she would find her own accommodation. As her symptoms deteriorated however, she became more withdrawn and as a result became increasingly dependent on Bernie for assistance in her activities of daily living. She said that both Bernie and her psychologist, Ms Sorrentino, became increasingly concerned during this time about her withdrawal and encouraged her to return to playing competition poker, to reduce her overall withdrawal. As this was a significant focus in the appeal matters, I spent considerable time trying to clarify Ms Chambers poker playing.

Firstly, I enquired about her engagement in professional poker prior to her injury. She said that she had played poker professionally for some time and that she had a very high level of skill, such that she was playing in national tournaments which required $10,000 to “buy in” and where there was prize-money that sometimes totalled in excess of $1 million. It was apparent that she was playing very high level, high stakes poker - I note that this was recorded in Dr Hong’s history and has not been challenged in the appeal. She said that when she returned to poker playing, early in 2021 she was playing in what she described, somewhat dismissively as “beginner level poker”. She found this shaming and humiliating, as it was far below her previous skill level. Moreover, she experienced considerable anxiety and after a couple of tournaments was initially unwilling to return to poker playing. She however had previously been invited to a tournament on the Gold Coast, as a prize from her pre-injury playing, and eventually Bernie and her psychologist prevailed on her to attend this tournament. She again experienced considerable anxiety she said but was able to finish the tournament and achieved a 4^th place. She played several further tournaments over the next eight months or so with varying levels of success. She highlighted to me several times that she considered these very low level games, considerably below her previous skill level and yet she struggled with each tournament because of increasing levels of anxiety, often culminating in panic attacks, associated with some dissociative symptoms with marked difficulty in focusing and concentrating on her playing. This culminated in a tournament at the Star Casino July 2022 which she won. She said that despite her apparent success, this tournament was profoundly disruptive for her because of the level of anxiety that she experienced. She said that during the poker game she became so overwhelmed with anxiety that she had to leave the table and Bernie spent, she said, about an hour trying to calm her down, in the toilet. She vomited due to her anxiety and also took Valium to attempt to manage her panic. From the symptoms that she described, it would appear that she not only was experiencing a panic attack but dissociative symptoms as well. She said eventually she returned to the table and found that she had a winning hand. She was humiliated by this and this was exacerbated by the fact that she said the crowd jeered her because of her performance. She found the experience so overwhelming she said that she was unable to return poker. I was initially somewhat sceptical of what appeared to me be an unlikely scenario, so I carefully discussed with her mechanics of the game and how this could possibly occur , in some detail. Her answers were consistent throughout and her explanation eventually appeared to me to be plausible. I have no evidence to suggest that she was deceiving me and certainly her level of distress when describing this incident was consistent with her explanation. She said that she has not played poker since.

She was referred to a psychiatrist, Dr Ashraf Phillips in 2020 and over the period 2022 to 2023 she said that she had been trialled on a variety of medications, both antidepressants and on occasions antipsychotics in order to assist in containment of her anxiety. She was also taking considerable amounts of diazepam. As a result of the medications, most likely mirtazapine and/or olanzapine, she gained a very considerable amount weight – around 30 kg she said. She found this very distressing, especially as she said her appetite was low. Moreover since she ceased these medications she has been unable to lose any weight. She is ashamed of this.

This situation became somewhat worse in the last year or so as Bernie, who has essentially become her carer, has herself developed significant illness. Ms Chambers was vague about her diagnosis (this did not seem to be due to dissembling), although thought it might be Crohn’s disease. In any case she said that Bernie has had a couple of admissions to hospital because of her illness, each admission lasting several days. Furthermore, Bernie had a fall earlier this year and fractured a bone in her leg. As a result, she has been unable to care for Ms Chambers and Ms Chambers herself has not been able to cope. As a consequence, her general practitioner has lodged a claim to the NDIS and a support worker has been provided to assist Ms Chambers. The Support worker attends their home twice a week to clean, cook and assist Ms Chambers with her personal hygiene.

Ms Chambers further stated that if anything she has become more isolated and withdrawn over the last year or so. She said that she had been in a relationship, with a woman, that began in around 2019. She described the relationship as “on and off” and eventually it finished, she said due to her symptoms. She has not had any intimate relationships since. I note however that this was a somewhat casual relationship rather than a long-term, established relationship. Ms Chambers said that she has lost many of her friends since her injury, however she maintains a very close relationship with her long-term friend Bernie and is also supported by another friend, Ro, who occasionally also visits.

Additional history since the original Medical Assessment Certificate was performed

The only significant change in Ms Chambers circumstances, since the Medical Assessment is the fact that her general practitioner has applied for NDIS support for her and as a result she now has a support person who attends twice weekly. She describes ongoing significant symptoms and marked withdrawal.

Current Symptoms

Ms Chambers describes ongoing anxiety and depressive symptomatology.

She said that she feels anxious much of the time, even when at home. She has tended if anything to become more withdrawn, spending considerable time in her bedroom. Her psychologist now is encouraging her to spend time in the back garden, which she does on a daily basis but which, she says still causes her considerable anxiety. She experiences panic attacks or panicky feelings on a daily basis. She continues to have difficulty with sleep although this has been ameliorated somewhat by her use of regular diazepam (5 mg/night). She complained of difficulty with memory and focus, although this was not consistent with her presentation at this interview. I believe that this reflects her subjective experience although is not objectively accurate. She continues to occasionally experience dissociative phenomena, marked by “out of body experiences”. She said that she is often irritable and feels badly about this because she recognises that is unfair but feels unable to manage it.

She feels depressed much of the time, describing low mood, marked anhedonia, social withdrawal and feelings of helplessness. She described feeling that life was not worth living but denied active suicidal ideation. She has very little motivation, and limited energy. Even though her appetite is low, she has struggled to lose weight gained as a result most likely of medication. She is currently about 30 kg heavier than her pre-injury weight. She experiences ongoing feelings of shame and guilt about her current situation. She has smoked for many years, but her intake of tobacco has increased dramatically since her injury. She currently consumes approximately 75 g of loose-leaf tobacco weekly. She does not drink alcohol.

Since her injury, she has started to grind her teeth. As a result, she said that she has broken about four teeth and has also developed significant temporomandibular joint pain. This has caused her, she says, to develop significant headaches which she described as migraine (I suspect erroneously). In any case she has been consuming considerable quantities of pain relief for this, using up to 8 Panadeine Forte and eight Nurofen tablets/day.

Current Treatment.

She continues to consult her psychologist Ms Joanne Sorrentino approximately every two weeks. Ms Sorrentino, from Ms Chambers descriptions and the documentation is using a combination of CBT as well as any exposure and desensitisation and support.

She consults her psychiatrist Dr Phillips approximately every three months. Dr Phillips monitors her progress and has trialled a variety of medications. She has experience considerable side effects in the past, but is now reasonably satisfied with her current medication, fluoxetine 20 mg/morning. She also takes diazepam 5 mg/night and 5 mg as required she said that she takes 10 mg on most days depending on her symptoms.

She consults her general practitioner every two weeks for both psychiatric and medical review. As mentioned, she is being treated with Panadeine Forte and Nurofen for headache and TMJ pain.

5. Mental State Examination.

Ms Chambers was seen via the Teams application. The quality of the transmission was reasonable and there were no difficulties in conducting the interview, which lasted approximately 90 minutes. Ms Chambers required two brief breaks during the interview.

She presented as distressed and anxious throughout the interview. Her hair was unkempt and unruly. There were photographs of her in the documentation prior to the injury, and it was very obvious at the interview that she has gained considerable weight since then.

She appeared often to be frightened and was clearly quite distressed. She was repetitively tearful throughout the interview. She often rocked and shook and generally appeared sad and miserable.

I note in the previous medical assessment that Dr Hong commented on difficulty in obtaining history because of her vagueness. I did not have this experience at this interview and felt that Ms Chambers generally was forthcoming in her answers.

Her overall demeanour was consistent with a depressive disorder. She described feelings of hopelessness and a feeling life not being worth living but she was not suicidal.

She was anxious and distractible but nevertheless persisted throughout the interview and was able to give reasonably concise answers. I should note that given the question of her honesty in presentation, implied in the Medical Assessment, and clearly stated by Dr Samuel, that I asked her a number of reasonably pointed questions particularly in relation to her medical history and her poker play. She was able to recall the events that I mentioned, on most but not all occasions and to give a reasoned account of her actions. This clearly required a reasonable level of concentration, memory and persistence. I did not believe that she was dissembling or dishonest in the history that she presented.

6. Diagnosis.

Using the DSM 5 system of diagnostic classification, Ms Chambers currently meets the criteria for the following diagnoses:

Persistent Depressive disorder with Persistent Major Depression. This diagnosis is made because of the long-term presence of low mood, disturbed motivation and energy, sleep disturbance, marked weight change, feelings of worthlessness and inappropriate guilt, impaired concentration and decision-making and repetitive thoughts of death, without active suicidality.
Panic disorder with agoraphobia. This diagnosis is made because of the presence of repetitive panic attacks and withdrawal associated at least in part with fear of recurrent attacks and losing control. It is apparent that because of her panic disorder she also at times experiences dissociative phenomena although I do not believe this is sufficient to warrant a separate diagnosis.
Generalised Anxiety Disorder. This diagnosis is made because of the presence of more than six months of symptoms of anxiety and worry associated with restlessness, fatigue, difficulty concentrating with mind blanking, irritability and sleep disturbance.

7. Review of PIRS Under Appeal.

Four class ratings were the subject of appeal – Self Care and Personal Hygiene Social and Recreational Activities, Social functioning and CPP. In reviewing these scales, I have taken into account the documentation presented in the ARD, in particular the reports of Dr Doron Samuel, Dr Frank Chow and Dr Ashraf Phillips. I also reviewed the general practitioner’s records and the letters from Ms Sorrentino. I note that most of these reports were undertaken in 2022 or before and this may account for differences in ratings. I note also that both the Medical Assessor and Dr Samuel (in his final report) have placed considerable weight in their findings upon the investigative findings of Qualcomm. I have addressed this in the body of my report and have generally accepted Ms Chambers explanations.

Self-care and Personal Hygiene.

Ms Chambers currently requires a carer to assist her in management of her housecleaning, personal hygiene and nutrition. This carer has been provided through the auspices of the NDIS because Ms Chambers flatmate, Bernie, has been too unwell to provide the care that she previously has provided. Clearly Ms Chambers cannot live independently without regular support both for management of her personal hygiene, and nutrition and to maintain a reasonably orderly household. This is a moderate impairment and rates class 3.

Social and Recreational Activity.

Ms Chambers has become increasingly housebound. She describes significant anxiety and often panic when she leaves the house even for mundane tasks. She only very occasionally has a friend, Ro, visit but otherwise only socialises with her closest friend, Bernie, who is also her carer. This is a moderate impairment and rates class 3.

Social Functioning.

While Ms Chambers relationship with her previous partner terminated at least in part due to her injury Ms Chambers clearly stated that this was an “on and off” relationship even prior to the injury. The relationship itself was not sustained or well established. Ms Chambers relationship with her closest friend, Bernie, however, remains quite strong with only limited strain and tension related to Ms Chambers irritability. She has also sustained a friendship with another friend, Ro. She has however lost several other friends as a result of her injury. This is a mild impairment – class 2.

Concentration, Persistence and Pace.

The interview with Ms Chambers lasted 90 minutes - while she required two brief breaks, she was able to sustain her focus and concentration throughout this reasonably intense interview. She did display distractibility on several occasions and sometimes there were clear gaps in her memory, which I did not believe represented dissembling. Nevertheless, she was able to respond in a reasonably complex fashion to my very specific questions regarding elements of a history, particularly her poker playing and her medical history. I believe this showed a capacity for cognitive engagement in all of the parameters of this class, despite her claim that she struggled to read complex documents such as the previous MA’s Certificate I believe she has a mild impairment – class 2.

In reviewing my current ratings with the two other scales that were not subject to appeal, Ms Chambers has class ratings of : 2, 2, 2, 3, 3, 5, with a median class of 3 and an aggregate score of 17. This equates to a Whole Person Impairment of 19%.

Signed: Dr. Graham Blom.

Medical Assessor

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3263/23
Applicant:	Tara Valene Mafi Chambers
Respondent:	WEW Pty Limited

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 Michael Hong 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 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)
Psychological injuries	8.1.2020	Chapter 11	N/A	19	0	19%
Total % WPI (the Combined Table values of all sub-totals)					19%

[2024] NSWPICMP 250

30 April 2024