Coppe v Secretary, Department of Education
[2025] NSWPICMP 97
•18 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coppe v Secretary, Department of Education [2025] NSWPICMP 97 |
| APPELLANT: | Sandra Coppe |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| DATE OF DECISION: | 18 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - The appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of two of the categories of the psychiatric impairment rating scale (PIRS) namely concentration, persistence and pace, and employability; Held – Appeal Panel found error in concentration, persistence and pace but no error in employability; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 November 2024, Sandra Coppe (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the
Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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 none was requested, and 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 in his whole person impairment (WPI) assessment of two of the categories of the Psychiatric Impairment Rating Scale (PIRS), namely Concentration, Persistence and Pace and Employability.
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 WPI in respect of a primary psychological injury on a deemed date of injury of 8 May 2023.
The Medical Assessor obtained a history of the circumstances leading to the injury which we do not intend to repeat here.
After setting out details of Ms Coppe’s treatment regime, the Medical Assessor then noted present symptoms as follows:
“She said she has been feeling depressed sometimes, but not all the time. She said she has been able to enjoy her gardening, and she enjoys going for a walk in a familiar area. Her sleep has been generally poor, and she said she gets a decent sleep 1-2 nights a week, but most nights she struggles with her sleep, and she gets about 5 hours of sleep. Her appetite has been fluctuating and she sometimes has an unsettled stomach, and she has lost a couple of kilograms. Her energy has been low, and she has to force herself to go for a walk. She said she feels pessimistic sometimes, though she tries to use some of the psychological strategies to manage these thoughts. She denied any suicidal ideations. She said she has been worrying about her life, her future and herself, and her family, and she said she can control the worrying so that she is not overwhelmed, but it does make her feel helpless at times. She said she has been having panic attacks when she feels pressured and overwhelmed, which occurs about twice a week, particularly when she is with her parents, and she said she can control the panic attacks by removing herself from the situation.
She said she has ongoing intrusive recollection of the subject incident, which cause her some distress, though overall they are less frequent than initially. She said she has nightmares of the subject incident or other incidents at school, which causes her distress. She tries to avoid thinking or talking about the incident. She feels she cannot trust other people, and struggles being around people she is not familiar with. She has a regular feeling of shame and guilt. She has a diminished interest in her previous activities such as horseracing and seeing her friends, and she has difficulties experiencing positive emotions. She has been angrier, but she has been able to handle her anger better than before. She has been easily startled and she dislikes being surprised, and her startle reaction has been more exaggerated than before. She has been hypervigilant, such as when she goes for a walk, she is scanning her surroundings checking for danger, or fearful when people are walking towards her. She has poor concentration and disrupted sleep. She denied any dissociative experiences or psychotic symptoms.
She was asked if she had any other relevant information she wished to add, and she indicated that since the subject incident, her whole life has been changed and she has tried to return to her preexisting function, but she has found it hard. She said her career has been finished, or halted, as she doesn’t see herself as being capable of coping in an educational setting with students again. She doubts she is capable in the workforce given her lack of confidence, concentration and organisational skills. She said she finds it difficult to accept not being supported by her employer after 28 years, and she said she would not feel safe returning.”
The Medical Assessor then set out details of the impact of her injury on her social activities and activities of daily living (ADL’s) as follows:
” She is currently 59 years old and lives in Sydney with her parents, and alternates living alone in Newcastle. She said her family includes her elderly parents, and one brother. She has no children and no partner. She said she last had a partner about five years ago, prior to the subject injury.
Prior to the subject injury, she said her relationship with her parents was close, who has always been supportive and loving. She said she was not caring for her parents prior to the subject injury, as she was working full-time, and they were independent with support from carers for her mother a few days a week. She said she had a good relationship with her brother, though he had been estranged from the family for six years, until about 3 years ago.
Since the subject injury, she said her relationship with her parents remain good, and she care for her mother one day a week whenever she is in Sydney, with ongoing carer support for her parents. She said she will support her mother with her personal care and assist with showering and dressing, as her mother has limited mobility. She rarely helps with the other domestic tasks, as her father likes to cook. She will occasionally prepare a meal, but she is not there all the time. She said she has a good relationship with her brother, though they only meet up once a month, when they will do something with their parents, such as having lunch at their home, or go out for a drive.
Prior to the subject injury, she said she had many friends, and she would see her friends about once a month, due to her workload. She said they would go out for a meal, see a show, watch a movie, or go for a walk or visit each other’s house. She also enjoyed attending the horse races, which she would attend once every two months, and she has a share in the racehorse. She said she would also attend family events with her extended family or work functions.
Since the subject injury, she said she still has three close friends and three or four other social friends, approximately once every two months or so, and she has lost some friends including a long-term friend. She said when she sees her friends, they will visit her in Newcastle for a cup of coffee, or in Sydney they would visit her parents’ house, where she will feel comfortable. She will sometimes go to their house. She said she avoids social venues or social events. She has lost her enjoyment of her horse races, though she enjoys reading a bit, and a bit of gardening and listening to music. She avoids violent TV programs.
Prior to the subject injury, she said she would shower every day, and she would cook every day when she was alone, and with her parents she would cook once a week. She said she would do the laundry and cleaning the house on a regular basis, and she was generally fastidious with keeping her house clean. She said she would shop for groceries once or twice a week. She said she was able to drive without any issues, and she would be able to drive to work and back and drive to Newcastle on weekends. She had no problems driving to new places or far away destinations.
Since the subject injury, she said she is showering three days a week, and she cleans the house less frequently, once every three weeks so the house is a bit messy. She said she does the laundry once a week. She said she is cooking less frequently, and she tends to get a take-away delivered, and she would cook twice a week. She said she is shopping for groceries once a week, and she tends to organise this via click-and-collect to avoid entering the shopping centre or having her groceries delivered, and occasionally she will enter the shopping centre with significant discomfort. She said she has been driving less often as she is no longer working, and she drives approximately three days a week, and generally in the local area. She goes walking within a familiar area. She said she has not driven to new places or far away places. She has been able to drive from Sydney to Newcastle and back, which is a familiar drive for her as she has driven that route regularly for a long time.
Prior to the subject injury, her concentration was good, and she could focus for up to an hour on reading. Since the subject injury, she said her concentration has been poor, and she can read for up to ten minutes, before losing focus.
Prior to the subject injury, she said she was working as a teacher, and she was doing a lot of administrative tasks as she was the head teacher of administration. This required a lot of organisational skills, including arranging casual teachers, organising timetables for playground duties and examination schedules. She had been working in the Education Department, for about 27 years altogether. She said she had been working full-time, and she would start working from 7am to 5pm on most days, five days a week. She last worked in April 2023.
Since the subject injury, she has not been able to return to work, look for alternate employment, or studying, due to her anxiety in social setting, with avoidant behaviours, and her concentration and ability to organise has been poor and she is easily flustered,
Findings on examination were reported as follows:
“She presented as a casually dressed and reasonably groomed woman. She had an average build and appeared to be her stated age. She engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail. She told me she was feeling anxious and depressed. She displayed some emotional reactivity and became mildly tense times during the interview.
She spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody. She complained of intrusive recollections of the subject incident at school. She had pessimistic thoughts of helplessness, and she denied any suicidal ideations. She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“She doesn’t meet a diagnosis of posttraumatic stress disorder as the description of the circumstances of the subject incident don’t appear sufficiently severe to meet Criterion A of this diagnosis, though given she otherwise has been experiencing significant symptoms of a posttraumatic stress syndrome and has met the other Criteria for this diagnosis, I would consider a diagnosis of Other Specified Trauma- and StressorRelated Disorder (F43.89). She has not met Criterion A via repeated exposure to verbal aggressive and intimidation by students at work, though I appreciate that these experiences have been very difficult; meeting Criterion B due to experiencing symptoms of intrusive recollections, distressing dreams related to the subject incident; meeting Criterion C due to avoidance of potential triggers and avoiding talking about it; meeting Criterion D due to a difficulties trusting others, marked diminished interest in her previous activities, feeling detached from friends, difficulties experiencing positive emotions; meeting Criterion E due to sleep disturbances, problems with concentration, hypervigilance and having an exaggerated startle reaction; meeting Criterion F as the duration of her symptoms are more than 1 month; meeting Criterion G as she has had significant distress and there has been impairment with her social and occupational functioning; and meeting Criterion H as these conditions are not wholly attributable to any other conditions.
Major Depressive Disorder, Single episode (F32.2), due to meeting Criterion A with her depressed mood, diminished interest in activities, reduced appetite, insomnia, anergia, reduced concentration; meeting Criterion B as there has been significant distress and impairment to social and occupational functioning; and meeting Criterion C as this episode is not attributable to another condition or effect of a substance.”
The Medical Assessor assessed 7% WPI to which he added 2% for the effects of treatment, a total of 9% WPI.
The Medical Assessor did not explain his reasons for assessment other than to state that it was based on “the information she provided in the interview, my observations of her during the course of the interview, and the medical records provided to me.”
He did not explain his calculations other than by stating: “Please refer to the PIRS worksheet.”
He then set out a summary of the material he had before him.
Relevant to the issues in dispute, he said:
“The report written by Dr Ben Teoh, psychiatrist, dated 3 May 2024. He [sic] had no pre-existing psychiatric illness. She was diagnosed with chronic Posttraumatic Stress Disorder with a poor prognosis with the main contributing factor being her employment, being subject to bullying, harassment and threats. She had reached maximum medical improvement. Self-care was mildly impaired, social and recreational activities was moderately impaired, travel was mildly impaired, social functioning was moderately impaired, concentration, persistence and pace was moderately impaired and employability was totally impaired.
The report written by Dr Nadeem Anwar, psychiatrist, dated 29 July 2024. She had no pre-existing psychiatric illness. She was diagnosed with Posttraumatic Stress Disorder due to her employment. She has received treatment including psychological therapy and sertraline. The injury had not yet reached maximum medical improvement.”
He added:
“My diagnosis differs to Drs Teoh and Anwar, though the difference is likely to be more theoretical and academic than of any practical difference. I agree with Dr Teoh she has poor prognosis, so I have assessed her as having reached maximum medical improvement, particularly with a dose adjustment to her medication following Dr Anwar’s assessment.”
The appellant’s submissions
Concentration, persistence and pace
The appellant submits:
(a) The Medical Assessor said: “Prior to the subject injury, her concentration was good, and she could focus for up to an hour on reading. Since the subject injury, she said her concentration has been poor, and she can read for up to ten minutes, before losing focus.”
(b) In her previous role as a teacher, the appellant was able to sustain prolonged concentration on lengthy and complex reading material which required high levels of cognitive endurance and organisation as recorded by the Medical Assessor at Page 5 of the MAC: “[The Appellant] was doing a lot of administrative tasks as she was the head teacher of administration. This required a lot of organisational skills, including arranging casual teachers, organising timetables for playground duties and examination schedules. She had been working in the Education Department, for about 27 years altogether. She said she had been working full-time, and she would start working from 7am to 5pm on most days, five days a week.”
(c) Class 2 of the PIRS rating scale suggests that an individual can engage in a standard retraining course or complete an intellectually demanding task for up to thirty minutes. The history recorded by the Medical Assessor at page 5 confirms she cannot concentrate on reading for more than ten minutes. This is uncontested and in keeping with the evidence that was before the MA. This impairment clearly places her below the thirty-minute threshold, meaning the appellant ought to have been assessed pursuant to the Class 3 descriptor, which also reflected an inability to handle more than basic content, such as newspaper articles.
(d) In circumstances where the appellant is incapable of engaging in a basic task as simple as reading, it was erroneous for the Medical Assessor to assume that she would be able to complete or engage in any other activities within the realm of a ‘Mild Impairment’.
(e) Based on the summation recorded by the Medical Assessor in his Reasons for Decision, the findings accord with Class 3 impairment and her impairment is far more pronounced juxtaposed with the appellant’s pre-injury high level of functioning in an academic setting.
(f) It was consistently recorded in the MAC that the appellant has not been able to return to work or take up alternative employment, even in simpler roles, due to her limited concentration and poor organisational skills. This reduction in her ability to complete detailed, sequential tasks without significant fatigue further underscores a cognitive impairment in concentration.
Employability
The appellant submits:
(a) The Medical Assessor said: “Since the subject injury, she has not been able to return to work, look for alternate employment, or studying, due to her anxiety in social setting, with avoidant behaviours, and her concentration and ability to organise has been poor and she is easily flustered, and her sleep has been significantly disrupted”.
(b) The Medical Assessor’s reasoning for according a Class 4 descriptor is recorded at page 13 of the MAC as follows: “She has not been able to return to her pre-injury work and will struggle working with other people, but she has been able to do some gardening and caring for her mother occasionally, so she has severe impairment, rather than total impairment.”
(c) Here, the Medical Assessor erroneously took into account the appellant’s ability to perform gardening and care for her mother as justification for the class 4 rating. This was erroneous because gardening and being able to look after her mother occasionally was not synonymous with an ability to work. If it was, the Medical Assessor has not provided adequate, let alone any, reasons indicating why these activities, particularly in the manner that the appellant performed same, was demonstrative of some capacity for employment.
(d) Furthermore, these activities were more appropriately classified under the "Social and Recreational Activities" and “Social Functioning” PIRS categories and ought to have not been, as noted above, considered as part of the Employability category.
(e) Gardening and caring for her mother do not reflect the appellant’s capability to engage in employment, as there is no requisite social, cognitive, and organisational demands typical of a work environment when the appellant performed these tasks.
(f) Indeed, the Medical Assessor obtained the history from the appellant that she undertook “a bit of gardening” and she did not care for her mother regularly. rather, the appellant indicated clearly that she cared “for her mother one day a week whenever she is in Sydney, with ongoing carer support for her parents.” Accordingly, the appellant’s involvement in these activities was significantly limited and she did not do so on a consistent basis that was synonymous with an ability to work. The Medical Assessor also obtained the history from the appellant, with respect to caring for her mother, that demonstrated clear limitations in her functioning with respect to same: “She said she will support her mother with personal care and assist with showering and dressing, as her mother has limited mobility. She rarely helps with the other domestic tasks, as her father likes to cook. She will occasionally prepare a meal, but she is not there all the time…”
(g) The Medical Assessor did not have regard to these limitations and erred in his assessment.
(h) In Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) the Court of Appeal held that conduct must be assigned to the appropriate category, stating at [94]: “Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
(i) By referring to these activities as a basis for assigning a Class 4 descriptor, the Medical Assessor misapplied the criteria, failing to recognise that such activities do not equate to a capacity to perform employment tasks.
(j) Accordingly, there was no evidence that permitted a finding of capacity to return to work in any capacity, including the history obtained by the MA. The weight of evidence detailed in the history of the MAC supports a class 5 with respect to employability.
(k) The Medical Assessor also failed to provide adequate reasons for his conclusions and emphasis upon the appellant’s gardening, and her looking after her mother, and why this demonstrated a capacity for employment.
(l) Reasons reconciling the history, with the conclusions, were needed because of the limited nature upon which the appellant undertook these activities, but also given the lack of evidence linking these activities with a capacity for employment. The appellant does not know why, in her particularly circumstances, these activities demonstrated she had a capacity to engage in some form of employment because the Medical Assessor has not indicated same.
(m) The Medical Assessor was bound to consider such evidence (Roger v De Gelder [2015] NSWCA 211 at [90] – [111]) given the context of the medical dispute he was determining:
“a) The Appellant’s statement dated 6 September 2024, wherein she states at items [12] and [13]: “I also no longer watch movies as I have trouble following the plot. I try to watch a short TV show but stop paying attention after about five minutes…. Prior to my psychological injury, and as a teacher, I regularly read books and textbooks without any difficulty. I now struggle to get through one page.”
(b) The IME Report of Dr Ben Teoh dated 3 May 2024, wherein he accorded a Class 3 Impairment with the following reasoning: “She reported significant anxiety symptoms. She has intrusive memories of the disruption and threats from the students. She reported insomnia and nightmares. She has been hypervigilant and worrying about her safety in public places. She has lost her confidence, and she has periodic acute anxiety attacks. She has a fear of being trapped. She has been lacking motivation and interest in her usual activities.”
(n) The Medical Assessor failed to have regard to this evidence and made findings contrary to the history he obtained which was consistent with this evidence.
(o) The Medical Assessor’s history concerning the appellant’s concentration, persistence and pace only seeks to distinguish the opinion of Dr Teoh. Although it is accepted that the Medical Assessor is required to reach an independent conclusion, the basis for the MA’s conclusion lacks sufficient reasons.
(p) In assessing functional impairments the Medical Assessor noted on page 12 of the MAC that: “[The Appellant] was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment” and “was able to sustain her concentration and provide reasonable amount of detail about her history”.
(q) Here, the Medical Assessor erred in assuming that her ability to recall details during the assessment was indicative of her typical cognitive capacity, overlooking the temporary focus achievable within the controlled environment of a structured interview.
(r) The appellant has undergone numerous interviews, medical consultations, and independent medical examinations throughout her workers’ compensation claim, each requiring her to repetitively recount the same history. In line with Bennett vState of New South Wales (NSW Police Force) [2023] NSWPICMP 164 at [61], this assessment is considered an “overlearned activity… [which] …can be performed automatically, with little effort, concentration or attention”.
(s) The MA’s reliance on isolated observations during the assessment fails to capture the appellant’s daily cognitive limitations, which are significantly more restrictive. The structured nature of the interview provided clear focus and supportive prompts, which are absent in daily situations requiring sustained cognitive engagement, flexibility, and adaptability without external guidance.
(t) The observations “alert” and “grossly cognitively intact” are generally broad terms that lack detail on her ability to sustain tasks over time or at consistent speed and effort, and do not directly address the criteria being assessed.
(u) In Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 the High Court asserted that “statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.
(v) The Medical Assessor inferred mild impairment partly because: “[The Appellant] has been capable of driving to and from Sydney to Newcastle.”
(w) The MA’s consideration of the appellant’s occasional travel from Sydney to Newcastle does not accurately reflect her actual driving capability nor the severity of the appellant’s cognitive limitations and overstates her capacity based on isolated actions of an occasional drive on a familiar route. The actual restrictions, limited driving range and avoidance of new routes indicate a functional impairment beyond a Class 2 rating.
(x) the MA’s decision to assign a Class 2 rating for the "Concentration, Persistence, and Pace” category relied on the appellant’s ability to drive long distances, which was not an appropriate factor for this category.
(y) In Ballas, the Court emphasised at [94] that conduct must be assigned to the appropriate category, with failure to do so constituting an appealable error. The Court also held that the MA’s reliance on the appellant’s ability to drive for extended periods as a basis for assessing "Concentration, Persistence, and Pace" was not an appropriate indicator of the behavioural consequences of the appellant’s functional impairment in this category.
The respondent’s submissions
In respect of both categories the subject of appeal, these are as follows:
(a) In the PIRS rating table [MAC 12] Dr Shen provides a more detailed explanation or reasoning for his decision to assess the appellant as falling within Class 2 for ‘concentration, persistence and pace.’
(b) As stated at 11.12 of the Guidelines, the examples provided of activities are examples only. Those examples are not intended to be determinative or prescriptive.
(c) The length of time the appellant is able to read is one consideration. However, the assessor has, rightly in the respondent’s submission, also observed the appellant’s ability to recount her history in some detail and noted that she is capable of driving relatively lengthy distances.
(d) In circumstances where this rating was open to the medical assessor and he has provided reasons for that assessment, the rating provided for concentration, persistence and pace ought not be disturbed.
(e) On the basis of the medical and factual evidence available to him, the respondent submits that the classification of Class 4 (severe impairment) made by Dr Shen was open to him and ought not be disturbed.
Discussion
Concentration, persistence and pace
We agree with the thrust of the appellant’s submissions for reasons that follow.
The Medical Assessor assessed a Class 2 and said:
“Since the subject injury, she said her concentration has been poor, and she can read for up to ten minutes, before losing focus. She still enjoys reading a bit. She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.
As she has been able to read with some difficulty, with reduced concentration span, but not overtly evident in the assessment as she was able to sustain her concentration and provide reasonable amount of detail about her history, and has been capable of driving to and from Sydney to Newcastle, she has mild impairment.”
The Medical Assessor said that: “Prior to the subject injury, her concentration was good, and she could focus for up to an hour on reading. Since the subject injury, she said her concentration has been poor, and she can read for up to ten minutes, before losing focus.”
Thus on his own findings, the appellant does not fit with a Class 2 rating.
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.”
The examples provided by the PIRS are examples only per clause 11.12 of the Guidelines and “provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected” (Jenkins v Ambulance Service ofNew South Wales [2015] NSWSC 633).
In her statement dated 6 September 2024 the appellant said:
“I continue to struggle to perform basic day-to-day activities as a result of my psychological injury. Without the assistance of my solicitors to discuss and assist in preparing this statement, it would not have been possible. This is because I struggle to read and lose focus after a couple of minutes as a result of my psychological injury.
I become distracted as my thoughts are overwhelmed by repetitively intrusive thoughts. Indeed, I regularly suffer from flashbacks, and my heartbeat increases. Nightmares are a regular occurrence, and I wake up feeling tired.
I avoid watching TV as scenes of violence or harm trigger my memories and distress. I also no longer watch movies as I have trouble following the plot. I try to watch a short TV show but stop paying attention after about five minutes.
Prior to my psychological injury, and as a teacher, I regularly read books and textbooks without any difficulty. I now struggle to get through one page.”
The Medical Assessor has failed to explain why he preferred his own view over the information provided by the appellant in her statement.
Consistent with a Class 3 rating, it is clear that Ms Coppe has a very limited reading ability, and finds it difficult to maintain focus on many aspects of her everyday life.
She certainly is unable to “focus on intellectually demanding tasks for periods of up to 30 minutes.” As she said: “I now struggle to get through one page.”
The Medical Assessor seems to have placed considerable emphasis on the appellant’s ability to “sustain her concentration and provide reasonable amount of detail about her history” during the assessment.
However, as he noted:
“Prior to the subject injury, she said she was working as a teacher, and she was doing a lot of administrative tasks as she was the head teacher of administration. This required a lot of organisational skills, including arranging casual teachers, organising timetables for playground duties and examination schedules.
As the appellant correctly pointed out:
“In her previous role as a teacher, the Appellant was able to sustain prolonged concentration on lengthy and complex reading material which required high levels of cognitive endurance and organisation.”
It must also be remembered that the circumstances of the appellant’s injury involved significant and prolonged violence and antisocial behaviour in the classroom, which of itself would have a lasting impact.
The Medical Assessor has also fallen into the trap envisaged by Ballas, in that he concluded that Ms Coppe’s ability to drive “to and from Sydney to Newcastle” was indicative of her level of Concentration, persistence and pace.
In our view, a Class 3 rating is appropriate since it is consistent with the Guidelines and the evidence before us.
Employability
The Medical Assessor assessed a Class 4 rating and said:
“Since the subject injury, she has not been able to return to work, look for alternate employment, or studying, due to her anxiety in social setting, with avoidant behaviours, and her concentration and ability to organise has been poor and she is easily flustered, and her sleep has been significantly disrupted.
She has not been able to return to her pre-injury work and will struggle working with other people, but she has been able to do some gardening and caring for her mother occasionally, so she has severe impairment.”
The descriptor for a Class 4 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.”
For a Class 5 it reads: “Totally impaired: Cannot work at all.”
The appellant urges a finding of a Class 5 rating on the following basis:
“The Medical Assessor erroneously took into account the Appellant’s ability to perform gardening and care for her mother as justification for the class 4 rating. This was erroneous because gardening and being able to look after her mother occasionally was not synonymous with an ability to work…
Furthermore, these activities were more appropriately classified under the "Social and Recreational Activities" and “Social Functioning” PIRS categories and ought to have not been, as noted above, considered as part of the Employability category.
Gardening and caring for her mother do not reflect the appellant’s capability to engage in employment, as there is no requisite social, cognitive, and organisational demands typical of a work environment when the Appellant performed these tasks.”
We do not accept that the appellant is unable to work at all for the following reasons.
Gardening in a commercial facility may be beyond the appellant’s capacity, but she may well be able to engage in some part-time domestic work perhaps under the NDIS scheme.
Similarly with personal care under either a similar scheme or on a private basis.
The Medical Assessor reported:
“Since the subject injury, she said her relationship with her parents remain good, and she cares for her mother one day a week whenever she is in Sydney, with ongoing carer support for her parents. She said she will support her mother with her personal care and assist with showering and dressing, as her mother has limited mobility. She rarely helps with the other domestic tasks, as her father likes to cook. She will occasionally prepare a meal, but she is not there all the time…”
This suggests to us a capacity for employment in this area certainly on a part-time basis.
On the history obtained by the Medical Assessor we do not see any error in his assessment in this category
This then means that the ratings are:
(a) Self-care and personal hygiene – Class 2;
(b) Social and recreational activities – Class 3;
(c) Travel – Class 2;
(d) Social functioning – Class 2;
(e) Concentration, persistence and pace – Class 3, and
(f) Employability -- Class 4.
Finally, we note that the Medical Assessor added 2% for the effects of treatment.
Although not the subject of appeal, consistent with the decision in Drosd v WorkersCompensation Nominal Insurer [2016] NSWSC 1053 it is an error which we should address.
On the Medical Assessor’s own history, he recorded her treatment regime as follows:
“She is currently on Sertraline 100mg in the morning, melatonin 2mg at night. She is seeing her GP once a month. She is seeing her psychologist once a month. There are no further plans for treatment escalation or medication changes (our emphasis).”
In short, there is no suggestion that
Subsection 1.32 of the Guidelines provides:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
A similar issue was recently dealt with by the Supreme Court in Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 where Chen J said:
“The clause may thus be understood to involve, and require findings about, the following ‘steps’:
1. First, whether there has been effective long-term treatment of an illness or injury.
2. Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3. Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.Upon satisfaction of each step, the medical assessor may increase the percentage of WPI by 1%, 2% or 3%. No submissions were directed to the proper construction of it – in particular, the meaning to be given to the term ‘may’ (broadly, whether it is discretionary or mandatory).
In relation to the first step, therefore, there needs to be a finding about the “illness or injury” that results in permanent impairment and whether there has been effective long-term treatment of that “illness or injury”.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [52] as follows:
“Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause…
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
There is simply no suggestion that Ms Coppe’s condition “has resulted in apparent substantial or total elimination of the original impairment.”
Indeed, her treatment regime is quite specific and has remained the same sine her injury.
For these reasons, we do not accept that there should be any adjustment for the effects of treatment.
This then means that the ratings are:
(a) Self-care and personal hygiene – Class 2;
(b) Social and recreational activities – Class 3;
(c) Travel – Class 2;
(d) Social functioning – Class 2;
(e) Concentration, persistence and pace – Class 3, and
(f) Employability -- Class 4.
The aggregate of class ratings is 16, median 3 for a 17% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 October 2024 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: | W26076/24 |
Applicant: | Sandra Coppe |
Respondent: | Secretary, Department of Education |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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 | 8/5/2023 (deemed) | Chapter 11 | Chapter 14 | 17% | 17% | |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
10
0