De Angelis v Solaris Paper Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	De Angelis v Solaris Paper Pty Ltd [2023] NSWPICMP 124
APPELLANT:	Sophy De Angelis
RESPONDENT:	Solaris Paper Pty Ltd
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	3 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; impairment resulting from primary psychological injury; worker appealed five of the six psychiatric impairment rating scale (PIRS) categories and deduction made pursuant to section 323; Panel satisfied that there was no error or application of incorrect criteria in four of the five PIRS categories but an error in the assessment of employability; Panel found error in deduction made pursuant to section 323 as made on the basis of an assumption; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 February 2023 Sophy De Angelis (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
30 January 2023.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant developed a primary psychological injury in the course of her employment with Solaris Paper Pty Ltd (the respondent) as a Human Resources manager.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) claiming 22% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 26 February 2021
The Medical Assessor examined the appellant on 23 January 2023 through video link. The Medical Assessor assessed 7% WPI and deducted one tenth pursuant to s 323 of the 1998 Act for pre -existing condition. The total WPI assessed was 6% as a result of the injury deemed to have occurred on 26 February 2021.

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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent submitted that the detailed evidence available in the matter negated the need for any re-examination of the appellant.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) SIRA Certificate of Capacity dated 10 January 2023, and
(b) SIRA Certificate of Capacity dated 7 February 2023.
The appellant submitted that the Certificates of Capacity dated 10 January 2023 and
7 February 2023 were not available and could not have been tendered prior to the medical assessment. The appellant argued that the inclusion of these certificates would not prejudice the respondent because these documents had already been served on the respondent and the information would not be of surprise. The appellant submitted that the certificates were evidence in support of the appellant’s claim that she was and continued to be unfit for any form of employment on the advice of her general practitioner (GP) for 12 months.
The respondent submitted the Medical Assessor was already aware that the appellant “is not working now and has not worked since 2021”, as recorded on page 4 of the MAC. The respondent noted that no earlier certificates of capacity were supplied by the appellant, despite such certificates having been served on the respondent. The respondent argued that if the appellant required evidence from her GP as to her capacity, any of the earlier certificates of capacity could have been submitted as part of her evidence in the first instance and should not be included at a later to cure a perceived deficiency in their case, when the Medical Assessor was clearly already aware that the appellant had not worked since 2021 and was not working.
The respondent submitted there was no probative value in admitting the additional information and opposed the admission of the additional information as earlier medical certificates were readily available to the appellant.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04).
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
In Orr v Holmes (1948) 76 CLR, at pp 640-642 a number of different expressions were collected, which have been judicially used at various times, and were summed up as follows:
"No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable" (at p 642).
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The Appeal Panel accepted that the Certificates of Capacity dated 10 January 2023 and
7 February 2023 were issued after the examination by the Medical Assessor and were not available or could not reasonably have been obtained before the Medical Assessor’s assessment. However, the appellant did not file other earlier medical certificates and provided no reason for this omission. The Appeal Panel considered that these certificates had low probative value after considering the evidence available in the material filed and the findings of the Medical Assessor. The Appeal Panel could not conclude that this fresh evidence had probative value such that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) SIRA Certificate of Capacity dated 10 January 2023, and
(b) SIRA Certificate of Capacity dated 7 February 2023.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    demonstrable error in the application of permanent impairment rating scale (PIRS) – failure to consider relevant material/information /medical reports. The PIRS criteria should be reviewed and approached as a guide and on ‘best fit’ basis on the history and evidence available and consideration of the factual matters touching upon the class with the PIRS scale. The Medical Assessor needed to enquire into the specific details of each impairment or deficit and apply the scoring appropriately;
(b)    Pt 11.12 of the Guidelines provides that the Medical Assessor should take account of a person’s cultural background and consider activities that are usual for the person’s age, sex and cultural norms during the application of the class descriptors and PIRS assessment. The Medical Assessor did not take into account the totality of the evidence and apply Pt 11.12;
(c)    in his clinical assessment the Medical Assessor failed to consider Pt 11.8 of the Guides – Effects of treatment and AMA 5 14.2a and 14.2b;
(d)    in respect of self care and personal hygiene, the Medical Assessor neglected to address and comment of the following potential class descriptors for self care and personal hygiene as noted in the appellant’s statement dated 26 February 2021. These symptoms and the material tendered were not addressed by the Medical Assessor in the category of self care and personal hygiene. A class 3 score would be more appropriate taking into account age, sex, culture and behavioural norms, being a wife and mother, a full time white collar worker with professional responsibilities;
(e)    in respect of social and recreational activities, whilst the Medical Assessor provided descriptors in accordance with his clinical examination, he failed to consider the evidence and erroneously applied a PIRS score which was inconsistent and not relative to his examination and the evidence tendered. The symptoms noted by the Medical Assessor and material tendered were not addressed by the Medical Assessor and he did not consider and appreciate the extent and duration of impairment and deficit. The Medical Assessor trivialised the assessment by not taking into account the information tendered evidenced by the absence of questioning on these particular impairments and deficits. The examples of missing Easter and Christmas mass, being a Catholic, or not enjoying activities such as golf or bike riding, going to the beauty salon or enjoying cooking would be pertinent and relative questions to undertake a proper and comprehensive assessment of impairment. It was not contested that the appellant requires prompting to engage in social activities and cannot do so without family members being present. There was no evidence to suggest that she can engage in activities independently. A Class 3 score would be more appropriate taking into account her age, sex, culture and behavioural norms and the descriptors in Table 11.2 of the Guidelines for Class 3;
(f)    in respect of Travel, the Medical Assessor failed to consider the evidence in the material and erroneously applied a PIRS score that was inconsistent and not relative to his examination and the evidence tendered (Paragraphs 32 – 33 of the statement dated 26 February 2021). The symptoms noted and material tendered were not addressed by the Medical Assessor who failed to consider and appreciate the extent and deficit also considering the duration of these symptoms. A Class 3 score would be more appropriate considering the symptoms and description of anxiety, panic and lack of focus when driving;
(g)    in respect of Concentration, Persistence and Pace, the reasons given by the Medical Assessor in the PIRS Table were a generalised and erroneous application of the PIRS. The Medical Assessor did not conduct an appropriate examination by not undertaking a comprehensive examination of the overall symptoms and impairment disclosed by the appellant and tendered in the evidence (Paragraphs 31, 33, 34, 35, 36, 37, 38, 39 and 40 of the statement dated 26 February 2021). The Medical Assessor did not undertake comprehensive, probative examination and testing of the appellant’s descriptors relating to concentration, persistence and pace tendered in the material. The Medical Assessor trivialised the assessment by only referring to the ability to watch TV/media but no other deficits were explored. Considering the appellant’s background, education, work type and behaviours a Class 3 score was appropriate;
(h)    in respect of Employability, the Medical Assessor did not refer to any evidence tendered for the opinion except that based on clinical evaluation and generalised assessment which was flawed. The Medical Assessor did not consider the evidence and observations of the appellant’s symptoms and deficits that would impact upon her ability to work including panic attacks, “Dark Moods”, anxiety, inability to concentrate or focus, withdrawal, continuing use of medication for her injury and the effects of medication use, impairment on travel, sensitivity and emotional reactivity, tearfulness and embarrassment and feelings of helplessness. The Medical Assessor did not regard the fact that the appellant had been certified psychologically unfit for work since the date of the injury and had not engaged in any form of work. It was not open to the Medical Assessor to suggest that there was capacity for gainful employment. Considering the extent and duration of the symptoms, a Class 5 score would be appropriate due to the deficit and duration of symptoms currently suffered by the appellant compared to her previous ability;
(i)    Ground 3 – s 323 deduction. The Medical Assessor erred in providing a secondary diagnosis and failed to give adequate reasons as to why he assessed the deduction. The history obtained by the Medical Assessor from the appellant and medical records and his statement that “She would be vulnerable to becoming more severely affected by stress in future situations” was not the correct or appropriate test in the application of a deduction for impairment. There was no evidence to suggest that the appellant at the date of injury was suffering from any pre-existing condition that impairment may be due. The fact that she had a prior psychiatric claim was not conclusive for a deduction to be applied. In a statement dated 19 September 2022 the appellant stated that she did not remember the details of the prior injury but had returned to work with a new employer and continued to work for 10 years before her current injury. There was no reason articulated by the Medical Assessor to justify a 10% deduction which can only apply in circumstance where it is difficult or costly to actually apply clinical judgment to the deduction. It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current impairment (Pereira v Siemens Ltd [2015] NSWSC 1133). The Medical Assessor made an assumption based on the mere existence of the previous claim and there was no reason or evidence to confirm this condition was present and /or existing at the time of injury;
(j)    In summary: (i) The Medical Assessor failed to undertake a probative examination of the symptoms and deficits experienced by the appellant tendered in the proceedings, specific to the appellant’s behaviour, activities and cultural norms; (ii) The Medical Assessor failed to consider the duration and severity of the injury and symptoms, use of medication and its effects; (iii) The Medical Assessor failed to consider the appellant’s work, education, cultural background and activities that were usual for the appellant’s age, sex and cultural norms in the PIRS assessments; (iv) The MAC contained a demonstrable error with failure to consider relevant material/information; (v) the Medical Assessor erred in providing a secondary diagnosis and application for deduction of 1/10^th for a pre-existing condition where it was not open for the Medical Assessor to diagnose the condition, and no adequate treasons were provided for the deduction, and
(k)    the MAC should be revoked and the appellant re-examined.
The respondent ‘s submissions include the following:
(a)    there was no evidence that the examination by the Medical Assessor was in any way materially defective. The Medical Assessor’s examination amounted to a proper medical examination;
(b)    the Medical Assessor reviewed and approached the PIRS criteria on a ‘best fit’ basis as described in Beatty v State of New South Wales – Nepean Blue Mountains Local Health District [2021] NSWPICMP 93. The Medical Assessor compared the descriptors with all the evidence before him, noting particularly the appellant’s presentation at examination and determined the best fit impairment on that basis;
(c)    the Medical Assessor noted the history and evidence available, particularly on pages 3, 4 and 5 of the MAC. The evidence available to the Medical Assessor included details of the appellant’s cultural background and prior level of functioning as described in her statement. The Medical Assessor noted that he considered these documents on page 7 of the MAC. This confirmed that the Medical Assessor did consider the totality of the evidence and applied Rule 11.12 and the rule of ‘best fit’, particular to the appellant’s circumstances and specific deficits;
(d)    Ground 1 - The appellant sought to argue the Medical Assessor erred in his assessments of the PIRS categories. The appellant submitted the MAC contained a demonstrable error and was based on incorrect criteria in respect to the Medical Assessor’s assessment of the appellant’s pre-existing impairment under the PIRS categories of self-care and personal hygiene, social and recreational activities, travel, concentration, persistence and pace, and employability. There was no demonstrable error or use of incorrect criteria in the Medical Assessor’s assessment of the appellant or her pre-existing impairment. The Medical Assessor's assessment under the PIRS categories was reached by taking into consideration all the available evidence and information, and then applying medical judgement based on knowledge and experience. The Medical Assessor used all available information before him, including contemporary medical evidence and the appellant’s statement evidence, to rate the appellant’s level of functioning in each of the PIRS categories;
(e)    a Medical Assessor is permitted to determine what weight should be given to the documents referred to him, including documents that record prior medical history and symptoms. That the Medical Assessor may have placed weight on certain information (i.e. the evidence of Dr Vickery) and not on other information when forming his opinion was a matter within his clinical judgement. The fact that other medical professionals made different assessments based on the history provided to them was of little significance. A mere difference in medical opinion did not amount to a demonstrable error (Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939);
(f)    PIRS category: Self-care and personal hygiene. The symptoms noted by the appellant in submission were addressed by the Medical Assessor in his category of self-care and personal hygiene effectively, especially when considering the time in between assessments by Dr Yeung and assessment by the Medical Assessor who noted “likely incremental improvement with her mental state due to escalation of treatment since the assessment of Dr Yeung may explicate the differences”. Based on the evidence before him, the Medical Assessor was entitled to consider the appellant presented with a Class 2 impairment with respect to her self-care and personal hygiene activities. The Medical Assessor concluded that the appellant suffered a mild impairment, which was an entirely reasonable conclusion reached based on his clinical judgment and was not an application of incorrect criteria, nor did his reasons disclose a demonstratable error;
(g)    PIRS Category: Social and Recreational Activities - there was no suggestion the Medical Assessor did not enquire as to the appellant’s condition and its impact on her level of functioning with respect to social and recreational activities. The Medical Assessor correctly classified the appellant as presenting with a mild (Class 2) impairment in respect of social and recreational activities. The appellant was able to undertake recreational activities such as dinner and a stroll around the city with her husband, sisters and their partners and attended Taronga Zoo with her friends last year. Whilst there was a reduction in frequency and level of social activities, she had been able to resume engaging in social activities. The history obtained by the Medical Assessor at the time of assessment was consistent with a finding of Class 2 impairment under the PIRS rating scale. As reported to and recorded by the Medical Assessor, the appellant displayed the ability to interact with other people and maintain friendships. The Medical Assessor provided adequate explanation for his assessment and the difference in his assessment to Dr Yeung. Based on the evidence before him and in particular the appellant’s history and presentation upon assessment, the Medical Assessor was entitled to assess the appellant within Class 2 rating assessment of mild impairment for social and recreational activities. The Medical Assessor reached an entirely reasonable conclusion based on his clinical judgment and there was not an application of incorrect criteria, nor did his reasons disclose a demonstratable error. The Medical Assessor was entitled to make an assessment of Class 2 rating assessment of mild impairment for social and recreational activities. The fact that another assessor may have made a different assessment does not mean that the assessment was in error;
(h)    PIRS Category: Travel - the Medical Assessor noted at page 6 of the MAC, the appellant “goes to the shopping mall where there is more people around”, when she is “feeling lonely”. The appellant drives alone to her local mall for shopping, but not further than that. The Medical Assessor also noted on page 7 that the appellant “visited her son at Blacktown and Ryde”. The Medical Assessor considered the appellant’s statements as part of his examination and was aware of her fear of travelling to new places and minor accidents as a result of being distracted easily. There was no indication within the MAC that the appellant reported any other deficiency to her travel than recorded by the Medical Assessor at the time of assessment in January 2023. This was plainly a Class 2 impairment, as assessed the Medical Assessor, given the appellant “can travel without a support person, but only in familiar area such as local shops”. The Medical Assessor was entitled to make an assessment of Class 2 rating assessment of mild impairment for travel based on the evidence before him and in particular the appellant’s presentation and reported functioning upon assessment. The fact that another assessor may have made a different assessment did not mean the assessment was in error. The assessment in the PIRS category of travel made by the Medical Assessor did not disclose an error nor was it made on incorrect criteria;
(i)    PIRS Category: Concentration, Persistence and Pace - the Medical Assessor recorded the appellant’s “concentration now is ok”. The appellant also indicated she had been “watching TV and Netflix and YouTube and reading the news” and had “no problems with that”. Upon examining the appellant, the Medical Assessor considered the appellant’s concentration to be “alert and grossly cognitively intact”. The Medical Assessor noted on page 5 of the MAC the appellant “spoke articulately and in a logical sequence most of the time”. Corresponding with the PIRS Class 2 description for the category of Concentration, Persistence and Pace the Medical Assessor was of the opinion the appellant had “no significant apparent deficits. Hence, at most she would have mild impairment in this domain”. This was a reasonable conclusion open to the Medical Assessor. As reported to and recorded by the Medical Assessor, the appellant had displayed the ability to concentrate for the duration of her psychiatric examination, in addition to reading new articles and watching YouTube and Netflix. Based on the evidence before him and in particular the appellant’s history and presentation upon assessment, the Medical Assessor was entitled to assess the appellant within Class 2 with respect to her concentration, persistence and pace. The Medical Assessor was entitled to conclude the appellant as presenting with a mild impairment in her concentration, persistence and pace. The history obtained by the Medical Assessor at the time of assessment is consistent with a finding of Class 2 impairment under the PIRS rating scale. Again, the fact that another assessor may have made a different assessment does not mean that the assessment was in error. The Medical Assessor reached an entirely reasonable conclusion based on his clinical judgment and is not an application of incorrect criteria nor do his reasons disclose a demonstratable error;
(j)    PIRS Category: Employability - The Medical Assessor recorded the appellant missed her employment and liked dealing with people. Whilst the Medical Assessor noted “understandable fear of returning to work”, he opined on page 12 of the MAC that this did not “preclude her from being able to work in itself”, however she would require substantial support with her return. The Medical Assessor had access to the appellant’s statement evidence and her oral reporting on assessment, and therefore considered the evidence and observations of the appellant’s symptoms and deficits. The Medical Assessor provided adequate explanation for his assessment and the difference in his assessment to
Dr Yeung. Based on the evidence before him and, in particular, the appellant’s history and presentation upon assessment, the Medical Assessor was entitled to assess the appellant within Class 3 rating assessment of moderate impairment for employability. The Medical Assessor reached an entirely reasonable conclusion based on his clinical judgment and there was not an application of incorrect criteria nor did his reasons disclose a demonstratable error;
(k)    Ground 2 - Availability of additional relevant information (see above under fresh evidence);
(l)    Ground 3 - Demonstrable error/incorrect criteria for s 323 deduction. Having regard to the Medical Assessor’s extensive review and the discussion of the medical evidence which formed part of the referral, together with him having had the benefit of clinical interview, the appellant failed to discharge the onus that the 10% deduction as applied pursuant to s 322(2) of the 1998 Act constituted a demonstrable error or incorrect criteria;
(m)     the appellant suggested that the Medical Assessor failed to give adequate reasons explaining the basis of the 10% deduction. The Medical Assessor went into detail concerning the reasons for his decision at on pages 5, 6 and 7 of the MAC, and at page 5 paragraph 7 of the MAC, specifically noted there appeared to be inconsistencies with the appellant’s past history of psychiatric conditions, to what she was able to provide, and which she said she could not recall. The Medical Assessor had available the IME report of Dr Son Nguyen. The evidence of Dr Nguyen was significant and provides information relevant to the appellant’s functioning due to her earlier work injury and prior to her current injury. It was evident that that based on the entirety of the evidence before him, the Medical Assessor considered the appellant’s pre-existing condition contributed to her current impairment and accordingly indicated a deduction of 10% should be applied under s 323 of the 1998 Act;
(n)    the Medical Assessor had not limited his assessment of pre-existing impairment to the opinion of Dr Nguyen, but rather considered all applicable information before him, including the appellant’s own statement evidence with respect to the earlier injury and the Medical Assessor’s impressions of the appellant on assessment. Noting the observation in Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 254 at [43], a Medical Assessor is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available. Having failed to demonstrate that an alternative conclusion was necessarily available, there can be no criticism that the Medical Assessor had has failed to give reasons for his opinion;
(o)    accepting that incorrect criteria or demonstrable error will not be disclosed where the findings relate to matters over which reasonable minds may differ, the appellant has failed to establish that the MAC contains errors as alleged. In light of the above, and in circumstances where the Medical Assessor had the benefit of the most recent examination of the appellant, wherein he had the opportunity to question the appellant and also undertook an extensive review of the relevant medical evidence, the appellant failed to demonstrate any demonstrable error;
(p)    the Medical Assessor’s opinion should be conclusively presumed correct. His findings were a matter within the clinical judgment of the Medical Assessor. Such did not constitute a demonstrable error, nor did it evidence that the assessment of the Medical Assessor was based on incorrect criteria, and
(q)    the MAC should be confirmed.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Discussion

Before making submissions concerning particular PIRS categories, the appellant made some general submissions, which the Appeal Panel will address first.

Failure to consider relevant material/information /medical reports

The appellant submitted that the Medical Assessor needed to enquire into the specific details of each impairment or deficit and apply the scoring appropriately in the PIRS categories. The appellant then referred to Pt 11.12 of the Guidelines which provides that the Medical Assessor should take account of a person’s cultural background and consider activities that are usual for the person’s age, sex and cultural norms. Her submissions referred to her statement and the “observations and evidence on file” to describe her as:
“a person of conservative and traditional behaviours and norms, and prior to the time of assessment, was a 54 year old female of Cambodian descent, who migrated to New Zealand as a child and graduated high school and undertook work as a waitress, receptionist and clerk. In her 20s she migrated to Australia and married at the age of 27. She completed a course in Human Resources and Management and follows the Catholic faith. Before her injury she was independent in self-care, activities of daily living, able to manage her own affairs and capable of full time professional work.”
The appellant submitted that the Medical Assessor needed to take these factors into account during the application of the class descriptors and PIRS assessment and that he did not take into account “the totality of the evidence” and apply Pt 11.12.
The appellant also submitted that the Medical Assessor failed to consider Pt 11.8 of the Guidelines – Effects of treatment and AMA 5 14.2a and 14.2b. However, the Medical Assessor was correct in not considering AMA 5 as AMA 5 Chapter 14 is excluded and replaced by Chapter 11 of the Guidelines.
In relation to Pt 11.8 of the Guidelines, no detailed submissions were made concerning the failure to consider the effects of treatment. The Appeal Panel was satisfied that this was a matter considered by the Medical Assessor as he listed all the medications and dosages in the MAC as well as some of the medications in Table 11.8. Dr Yeung in her report dated
18 May 2022 made “no addition for treatment effect”.
The Appeal Panel noted that the Medical Assessor noted he had the documents listed in the referral, namely, the documents attached to the Application to Resolve a Dispute (ARD), the Reply, the application to admit late documents dated 20 September 2022 and the application to admit late documents dated 30 September 2022. Specific reference was made to the appellant’s statement dated 28 February 2022 and to her supplementary statement dated
19 September 2022 on page 7 of the MAC.
The Appeal Panel was satisfied that the Medical Assessor had read and taken into account all of the appellant’s statements even though particular parts of her statements were not specifically referred in the MAC. Harrison J in Prasad v Workers Compensation Commission [2010] NSWSC 418, said:
“On the other hand, there is support for the proposition that not every matter or thing that is germane or critical to an administrative decision must, or even can, be expected to find a place in the expressed reasons of the tribunal. Nor should too close an examination of those reasons be undertaken in the hope of locating putative error. This might be thought to be all the more forceful in the scheme of legislation such as the Act where the question for consideration has been referred to a specialist tribunal with knowledge and experience of medical matters, which one might expect will relevantly have been brought to account in its deliberations and ultimate consideration of the degree of whole person impairment.”
The Appeal Panel was not persuaded that the Medical Assessor failed to take into account the appellant’s cultural background or that he failed to consider activities that are usual for her age, sex and cultural norms. The Medical Assessor took a proper and detailed history and referred to the appellant’s statements. The Appeal Panel was satisfied that the Medical Assessor was aware of the appellant’s background. The Appeal Panel was satisfied that there was no demonstrable error and the assessment was not made on the basis of incorrect criteria in respect of this first submission.

PIRS Categories

The appellant alleged error in respect of the assessment of the PIRS categories of Self care and personal hygiene, Social and recreational activities, Travel, Concentration, persistence and pace and Employability.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J was Campbell J in Ferguson v State of New South Wales [2017] NSWSC 857, where his Honour in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a)     was the categorisation glaringly improbable;
(b)     was the AMS unaware of significant factual matters;
(c)     was there a clear misunderstanding by the AMS, and
(d)     was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66.   In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70.    To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71.    The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Self care and personal hygiene

The appellant submitted that the Medical Assessor had neglected to address and comment on the following potential class descriptors for Self care and personal hygiene as noted in her statement dated 26 February 2021.
The examples under Table 11. 1 for “Self care and personal hygiene” in the Guidelines are:
“Class 2: Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3: Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes., Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor assessed the appellant as class 2 for Self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self-care and personal hygiene - Class 2
She has been cooking though not as much as before. She still showers and dress(sic) herself, though only when she has to leave the house. She continues to be able to self-care, to a lesser frequency and less optimal standard, hence she has a mild impairment in this domain.”
On page 2-3 of the MAC the Medical Assessor noted:
“…She said her mood has been a lot better, she is not locking herself in a dark room and she does go out and undertakes her grocery shopping and walking around the block”.
On page 4 of the MAC the Medical Assessor noted that she said she was a social drinker prior to the subject injury, with some escalation with her drinking around 2021, over some months, though she “cannot recall the frequency, and she would drink more in response to being more anxious”. He wrote: “She said that she is now a social drinker, and drinks on a fortnightly basis, and her last drink was at the New Year countdown”.
On page 5 of the MAC, the Medical Assessor noted: “She also does grocery shopping and cooks dinner. She has been cooking though not as much as before”.
Under physical examination on page 5 of the MAC the Medical Assessor noted that the appellant presented as a casually dressed and reasonably groomed woman.
Under the heading “Medical records” the Medical Assessor referred to the appellant’s statement dated 28 February 2022 and noted she said that she had “a poor diet, eating take out and junk-food, escalation of drinking, reduced grooming, skipping showers on some times”.
In her submissions the appellant relied on the following paragraphs from her statement dated 28 February 2021:
“19. To this day, my sleeping habits are still poor I still wake up in the middle of the night or early mornings. I try to go to bed around 9pm but it takes me hours to fall asleep, I sometimes find myself still awake at around 11pm.
…
22. My diet is very poor, I have been ordering a lot of take-out food for dinner and eating junk. I try to cook fresh food for the family, but only around twice a week, at the most on rare occasion, 3 times a week. I skip breakfast and sometimes I skip dinner. I only cook for the family out of guilt. My diet and health is worse, I have gained weight.
23.    I used to drink alcohol only socially, but when I am feeling down, I have a shot or two of liqueur or Baileys or other spirits per day.
24.    I do not change my clothes every day, I only do it if I have to leave the house. This maybe only twice a week at times, this is usually when I go out to buy groceries to cook dinner. I brush my teeth as usual, but I skip showers and only do it when I need go out, so it may be a few days before I take a full shower. If I go out shopping, I merely wear my tights and t shirt and runners. My husband when he comes home from work comments on my lack of self-care and hygiene.
25.    I used to tend to my nails every 3 weeks and my hair at the salon every couple of months. Now, I am a mess, I do not have a routine. Due to my anxiety I bite my nails and this makes me embarrassed to go to the salon. Between 2021 and at the time of writing this statement, I have only attended the salon twice and for my nails, I only attended 3 times.
26.    I try to exercise with walks in the evening after dinner but on occasion may take a walk during the day. I am encouraged to do this by my psychologist. I only walk around the block for 20 mins and go home.”
Dr Graham Vickery, in a report dated 11 July 2022, made a diagnosis of a major depressive disorder. He did not consider that the appellant had reached maximum medical improvement. He noted that the appellant said:
“I am making progress and I am having some good days now but I still have the bad days when I’m not motivated and I don’t want to go out and I stay in bed in my pyjamas as there is no need for me to get dressed but I will get up to make the family meal.”
Dr Vickery reported that the appellant had a shower once or twice a week “when I have to go out because I don’t see the reason otherwise”. He observed that she was in her dressing gown and was not groomed.
In a report dated 29 September 2022, Dr Vickery assessed the appellant as Class 2 for Self care and personal hygiene providing the following reasons:
“Mrs De Angelis has a shower once or twice a week or ‘when I have to go out because I don’t see the reason otherwise’. Mrs DeAngelis appeared to be presentable in the assessment.”
Dr Elsa Yeung, in a report dated 18 May 2022, made a diagnosis of an adjustment disorder with depressed mood and anxiety. She assessed the appellant as Class 3 in the category of Self care and personal hygiene noting:
“Ms De Angelis requires prompting to shower. If her husband is not at home, she would miss the meal. She would stay in bed and would not do anything. She cooks as she is fearful her husband will tell her off and get angry with her.”
Dr Yeung recorded:
“Ms De Angelis experiences good days and bad days. She cannot tell me how often she experiences good days in a week. When she experiences a bad day, she struggles to get out of bed. She would have suicidal thought with plan that she wants to overdose on her tablets. She states she will not act on it as she identifies her family as a protective factor. She would not shower on a bad day. She would not get out of the house. She would get out of bed, change and cook dinner. If she does not get out of bed and cook dinner, her husband will get angry with her. If her partner is not at home, she would just stay in bed and miss the meals.
On a good day, she reports improvement in her motivation. She would be able to cook. She would be able to do the grocery shopping. She would be able to check her email, go out for walk, and watch a movie. Her concentration remains poor. She can watch a movie but never remember the content. She would feel pleased that she can complete some tasks. She is able to do the household chores.
…Her motivation is poor. Her self-care is poor. She does not shower every day. She showers 1-2 times a week. She washes her hair once a week. She brushes her teeth daily. Her appetite is normal. She has put on 5 kg of weight. She used to read all the work policy and documents but she is not able to focus and read now. Her husband has to deal with all the household bills and the house maintenance. She used to deal with all those things regarding her home. She used to enjoy cooking, playing golf and bike riding but she does not participate in any of those activities now. She no longer enjoys cooking. She states that she has to cook, otherwise her husband will get angry at her.
Prior to the onset of her psychiatric condition, Ms De Angelis was a social drinker. She used to drink one to two cocktails on Saturday. On Friday, she would go out to dinner with her husband and she would have a glass of wine. As she is no longer going to social events, she is no longer drinking.”
Dr Eric Lim, in a report dated 2 March 2021, wrote: “She has lost weight and does not have the motivation to perform her usual daily activities. She reported that she does not have the motivation to get dressed up for work and has been buying take away food for her children for dinner”. He noted that she showered every second day.
The appellant submitted that the symptoms identified in her statement and the material tendered were not addressed by the Medical Assessor in the category of Self care and personal hygiene. The appellant submitted that a Class 3 score would be more appropriate taking into account age, sex, culture and behavioural norms, being a wife and mother, and a full-time white collar worker with professional responsibilities.
The applicant’s statement was dated 26 February 2021 and therefore addressed symptoms and functional impairment experienced at that time and not at the time of the examination by the Medical Assessor on 23 January 2023, that is, nearly two years later. It would not be unusual for there to have been some change in the appellant’s functional impairment during a two year period and indeed the Medical Assessor expressed the opinion that there was likely incremental improvement in the appellant’s mental state due to the escalation of treatment since her assessment by Dr Yeung.
Dr Vickery assessed the appellant as Class 2 for Self care and personal hygiene, while
Dr Yeung assessed her as Class 3.
The Medical Assessor noted that the appellant had been cooking though not as much as before, still showered and dressed herself, though only when she had to leave the house, continued to be able to self-care, to a lesser frequency and less optimal standard. He observed she presented as a casually dressed and reasonably groomed woman. Dr Yeung noted that the appellant was able to do the household chores, apart from those her husband did because of her neck surgery. Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for Self care and personal hygiene. The Appeal Panel was satisfied that the rating of Class 2 for Self care and personal hygiene was not in error.

Social and recreational activities

The appellant submitted that the Medical Assessor failed to consider the evidence and erroneously applied a PIRS score which was inconsistent and not relative to his examination and the evidence tendered.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”

Clause 11.11 of the Guidelines classifies Social and recreational activities as an activity of daily living.
The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 2
She remains in regular contact with her siblings, with last contact over Christmas. She last had a social outing just prior to Christmas, and they went to a restaurant for dinner and for a stroll around in the city. This was with her sisters and their respective husbands. She says she has a few good friends, whom she communicates via WhatsApp and she last saw them prior to Christmas, and one visited her home, and have coffee and tea together. They previously would go out, but not recently.
They went to Taronga Zoo a few months ago, in November 2022 via Ferry from Circular Quay, and she said she enjoyed that. There is a reduction in frequency and level of participation in social activities, but she has been able to resume engaging in social activities.”
The Medical Assessor noted that the appellant said that she worried a lot about the situation that comes up, including what people think of her, and why she was that way. He noted that she said she had panic attacks, but less frequent now and based on the situation. The Medical Assessor noted that she said she “puts on a happy face in social situations, and just sits in a group”. The appellant told the Medical Assessor that she could enjoy spending time with her family, but not so much with her friends.
In her submissions the appellant relied on the following paragraphs from her statement dated 28 February 2021:
“25. I used to tend to my nails every 3 weeks and my hair at the salon every couple of months. Now, I am a mess, I do not have a routine. Due to my anxiety I bite my nails and this makes me embarrassed to go to the salon. Between 2021 and at the time of writing this statement, I have only attended the salon twice and for my nails, I only attended 3 times.
26.    I try to exercise with walks in the evening after dinner but on occasion may take a walk during the day. I am encouraged to do this by my psychologist. I only walk around the block for 20 mins and go home.
27.    For over a year, I have tried socialising but only once a month. This is usually only to dinner with my husband and my sister and her husband or on a Sunday drive with my husband only. Every time my husband has to push me and be a bit forceful to get me moving, put on something nice when we go out. Its only his insistence and my sense of duty to make this effort.
28. Before my injury I used to go out every weekend and my social circle was a lot bigger, including extended family and friends. After the lockdowns, there were birthdays and other events but I would make excuses to avoid going. I have spoken to some of my friends over the phone, but I actively avoid catching up with them and make excuses.
29.    My family is Catholic and last year because of my injury we missed Easter Mass and also Christmas.
…
40.    I used to enjoy casual and window shopping and cooking and play golf, these were my hobbies. I now do not these activities anymore. I haven’t played golf, my clubs are just gathering dust and I am preparing to sell them, they were a gift from my brother. I do not do any casual or window shopping…”
Dr Graham Vickery, in a report dated 11 July 2022, noted that the appellant sometimes went to family gatherings with her in-laws. He noted that she could reach out to her three close friends on the phone “on a good day” however will not meet up with them when they ask her to go out. He wrote: “She has visits with her two sisters once a month and she regularly has contact on the phone with her sisters and parents”. Dr Vickery reported that there was a supportive marital relationship and she is close to her two sons, her sisters and her parents and there were are three close friends.
In a report dated 29 September 2022, Dr Vickery assessed the appellant as Class 2 for Social and recreational activities providing the following reasons:
“Mrs De Angelis can reach out to her three close friends on the phone “on a good day” however does not meet up with them when they ask her to go out. Mrs De Angelis sometimes goes to family gatherings with her in-laws. She has visits with her two sisters once a month and she regularly has contact on the phone with her sisters and parents. Mrs De Angelis reported that on a good day “I go shopping and I enjoy seeing my family enjoying my cooking”. She goes for a walk around the block. She goes out for a meal with her husband”.
Dr Elsa Yeung, in a report dated 18 May 2022, assessed the appellant as Class 3 in the category of Social and recreational activities providing the following reasons: “Her husband would have to drag her out to go to family and social gathering. She was withdrawn in the meeting and did not enjoy that gathering”.
Dr Yeung recorded:
“She is withdrawn. She used to socialise. Her husband would take her out to social
gatherings but she would be quiet and withdrawn during those gathering. She would prefer not to go. She did not enjoy any of this activity. She denies being irritable. She has lost a few friends and work friends.
She used to enjoy cooking, playing golf and bike riding but she does not participate in any of those activities now.”
The appellant submitted that the symptoms noted above in the appellant’s statement, and in the material tendered were not addressed by the Medical Assessor. The Medical Assessor did not appreciate the extent and duration of impairment and deficit and trivialised the assessment by not taking into account the information tendered (evidenced by the absence of questioning on these particular impairments and deficits). The examples of missing Easter and Christmas mass, being a Catholic, or not enjoying activities such as golf or bike riding, going to the beauty salon or enjoying cooking would be pertinent and relative questions to undertake a proper and comprehensive assessment of impairment.
The Appeal Panel did not accept that the Medical Assessor did not appreciate the extent and duration of impairment and deficit or trivialised the assessment by not taking into account the information tendered. The Medical Assessor was provided with the appellant’s statement and it was clear from his reference to it in the MAC that he had considered the statement. It was not necessary for the Medical Assessor to refer to every paragraph of the statement. The appellant complained that the Medical Assessor did not ask her questions concerning activities such as golf and bike riding. However, this complaint had no basis as the Medical Assessor noted in the MAC that she usually enjoyed golf, bike-riding and going hiking but these days walked around the block and went to the shopping mall when she felt lonely as there were more people about. While the Medical Assessor may not have asked the appellant about going to Mass at Easter and Christmas or how often she went to the nail salon, it is not necessary in the view of the Appeal Panel for the Medical Assessor to question the appellant about every social event or activity referred to in her statement.
The appellant submitted that it was not contested that the appellant required prompting to engage in social activities and could not do so without family members being present. There was evidence that the appellant went to the shopping mall by herself and saw her friends on occasions by herself. The Appeal Panel does not accept that there was no evidence to suggest that the appellant could engage in activities independently.
The appellant submitted that a Class 3 score would be more appropriate in the category of Social and recreational activities.
The applicant’s statement was dated 26 February 2021 and therefore addressed activities and symptoms experienced at that time and not at the time of the examination by the Medical Assessor on 23 January 2023, that is, nearly two years later. As noted above, it would not be unusual for there to have been some change in the appellant’s activities during a two year period and the Medical Assessor had expressed the opinion that there was likely incremental improvement in her mental state due to the escalation of treatment since her assessment by Dr Yeung.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for Social and recreational activities considering the evidence available and the history taken during the assessment by the Medical Assessor. The Appeal Panel was satisfied that the rating of Class 2 for Social and recreational activities was not in error and any deficit in this category was a mild impairment.

Travel

The appellant submitted that the Medical Assessor failed to consider the evidence in the material and erroneously applied a PIRS score that was inconsistent and not relative to his examination and the evidence tendered.
The examples under Table 11. 3 for “Travel” in the Guidelines are:
“Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
Clause 11.11 of the Guidelines classifies Travel as an activity of daily living.
The Medical Assessor assessed the appellant as class 2 for Travel. In the PIRS Rating Form, the Medical Assessor wrote:
“Travel - Class 2
She has been driving to the local mall for her shopping, but no further than that.”
In her submissions the appellant relied on the following paragraphs from her statement dated 28 February 2021:
“32. On most occasions my husband drives me everywhere. The only time I drive is to get groceries from the mall which is 5 minutes away from home. When I go out to public places, I am focused only getting my groceries and go straight home. I used to enjoy shopping and spend my time shopping but now I don’t do this, I just get what I need and go home.
33. I sometimes drive to Blacktown to visit my eldest son who lives there and also to Ryde to visit my sister, which is around once a month. When driving I go blank and this is dangerous for me. At times I missed the turn on the M4 motorway to Blacktown and I have to drive further, turn around go back. Due to my absent mindedness and losing track, I find myself going into the wrong roads and having to make detours.”
Dr Graham Vickery, in a report dated 11 July 2022, noted that the appellant was driving however “I can go into a bit of a trance and I had a minor accident changing lanes and I had a fine for not slowing in a school zone and I can take the wrong road sometimes so now I don’t go for drives unless it is necessary”.
In his report dated 29 September 2022, Dr Vickery assessed the appellant as Class 2 for Travel providing the following reasons: “Mrs De Angelis is driving in the local area”.
Dr Elsa Yeung, in a report dated 18 May 2022, assessed the appellant as Class 2 in the category of Travel providing the following reasons: “She is able to travel on her own to the physiotherapy, doctors’ appointment and grocery shop”.
The appellant submitted that the symptoms noted above and material tendered were not addressed by the Medical Assessor to consider and appreciate the extent and deficit also considering the duration of these symptoms. The appellant submitted that a Class 3 score for Travel would be more appropriate considering the symptoms and description of anxiety, panic and lack of focus when driving.
Both Dr Vickery and Dr Yeung assessed the appellant as Class 2 for Travel. The fact that the appellant described symptoms of anxiety, panic and lack of focus when driving does not detract from the fact that when assessing her level of impairment she is capable of driving locally by herself and does so. The Medical Assessor noted that the appellant was driving to her local mall but no further than that.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel agreed with the Medical Assessor that an assessment of Class 2 for Travel was correct. The Appeal Panel was satisfied that the rating of Class 2 for Travel was not in error.

Concentration, persistence and pace

The appellant submitted that the reasons given by the Medical Assessor in the PIRS Table were a generalised and erroneous application of the PIRS. The appellant argued that the Medical Assessor did not conduct an appropriate examination by not undertaking a comprehensive examination of the overall symptoms and impairment disclosed by the appellant and tendered in the evidence.
The examples under Table 11.5 for “Concentration, persistence and pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor assessed Class 2 in relation to Concentration, persistence and pace noting:
"She said her concentration now is ok. She said she has been watching TV and Netflix and YouTube and reading the news on YouTube. She said she had no problems with that. She appeared alert and grossly cognitively intact in the interview. She still is not yet as active with her usual degree of cognitive performance, but there are no significant apparent deficits. Hence, at most she would have a mild impairment in this domain.”
On mental health examination, the Medical Assessor noted:
“…She engaged cordially in the assessment and was at times hesitant with providing responses to direct questions regarding her functioning, and required several p[robes, though she was eventually forthcoming with her responses.
She told me she was feeling worried and anxious and also sad some days, with being worse when she becomes stressed. She displayed some emotional reactivity and became teary at times during the interview.
She spoke articulately and in a logical sequence most of the time.
There were ongoing complaints of anxiety, and embarrassment.
There were periods of death ideations, with no suicidal ideations or plans. There are ongoing feelings of helplessness.
She appeared alert and grossly intact. She said her concentration now is ok.”
The appellant referred to a number of paragraphs in her statement dated 26 February 2021 including:
“31. Hardly anyone comes over to my house anymore and I do not invite anyone because it is a mess, I am not motivated to clean up and I am embarrassed if people come over and see the state it is in. My husband works full time and my youngest son is studying and works part time, they do not always have time to keep the house in order.
33…. When driving I go blank and this is dangerous for me. At times I missed the turn on the M4 motorway to Blacktown and I have to drive further, turn around go back. Due to my absent mindedness and losing track, I find myself going into the wrong roads and having to make detours….
35.    I am becoming absent minded and forgetful. I lose track of what I am doing and also where I am driving. I forget where I place my house keys.
36.    I forget to buy some groceries and sometimes I have to go back to shops when I arrive home and discover I have forgotten items. Even at times I thought I had loaded my groceries into the car and drove home, only to realise I have left some items in the trolley. I was so upset and depressed I couldn’t be bothered going back to pick them up.
37.    I have forgotten and missed appointments with my doctors and psychologist.I am reliant on reminders on my phone now.
38.    Before my injury I handled all the household bills. Now my husband handles all the bills, due to my stress and anxiety and very emotional. My husband has seen me sitting down and staring at blank computer screens and not moving, so he took over handling the bills.
39.    I try to watch TV but I zone out and forget what I was watching. I do not read newspapers or magazine or books anymore. I don’t think I can read work related documents anymore; I just stare blankly into space and cannot concentrate. Thinking about work and paperwork I was used to handling makes me anxious and increases my stress.
40. … I only cook basic meals and do experiment or be creative in the kitchen.”
Dr Graham Vickery, in a report dated 11 July 2022, noted that the appellant reported that “I’m quite forgetful sometimes and I zone out when I‘m watching a movie and I have to replay it and I have to concentrate to hold a conversation”.
In his report dated 29 September 2022, Dr Vickery assessed the appellant as Class 2 for Concentration, persistence and pace providing the following reasons: “Mrs De Angelis reported being forgetful at times and I can zone out when I‘m watching a movie”. There was no apparent cognitive impairment noted in the assessment and “she was able to concentrate and remain focussed during the hour of the assessment”.
Dr Elsa Yeung, in a report dated 18 May 2022, assessed the appellant as Class 3 in the category of Concentration, persistence and pace providing the following reasons:
“Her focus is poor. She used to be able to read manuals, but she struggles to read any of those manuals now. She would require her husband to take over some of the running of the household as she struggles to focus and concentrate.”
The appellant submitted that the Medical Assessor did not undertake comprehensive, probative examination and testing of the appellant’s descriptors relating to Concentration, persistence and pace tendered in the material and trivialised the assessment by only referring to the ability to watch TV/media but not exploring other deficits were explored. The Appeal Panel was satisfied that the Medical Assessor did undertake a comprehensive and probative examination of the appellant and appropriate testing of the descriptors relating to Concentration, persistence and pace. The Medical Assessor did not merely refer to an ability to watch TV/media but on the history provided by the appellant in the assessment including her statement that her concentration was now OK. The Medical Assessor noted that the appellant watched the news on YouTube. The Medical Assessor noted that she appeared alert and grossly cognitively intact in the interview.
The appellant submitted that considering the appellant’s background, education, work type and behaviours a Class 3 score in the category of Concentration, persistence and pace was appropriate.
Dr Vickery assessed the appellant as Class 2 in this category and Dr Yeung assessed her as Class 3. The Medical Assessor was of the view that there was likely incremental improvement in the appellant’s mental state due to the escalation of treatment since her assessment by Dr Yeung. The Appeal Panel was satisfied that there had been some improvement in her mental state since she made her statement dated 26 February 2021.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for Concentration, persistence and pace. The Appeal Panel was satisfied that the rating of class 2 for Concentration, persistence and pace was not in error.

Employability

The appellant submitted that the Medical Assessor did not refer to any evidence tendered for the opinion except that based on clinical evaluation and generalised assessment which was flawed. The appellant argued that the Medical Assessor did not consider the evidence and observations of the appellant’s symptoms and deficits that would impact upon her ability to work including panic attacks, “Dark Moods”, anxiety, inability to concentrate or focus, withdrawal, continuing use of medication for her injury and the effects of medication use, impairment on travel, sensitivity and emotional reactivity, tearfulness and embarrassment and feelings of helplessness. Further, the appellant submitted that the Medical Assessor did not regard the fact that the appellant had been certified psychologically unfit for work since the date of the injury and had not engaged in any form of work.

Based on the clinical records of the treating GPs, the Appeal Panel concluded that the appellant had a pre-existing condition that was longstanding and recurring and at times required treatment and referral for specialist treatment. This had been described as “an adjustment disorder and depressed mood” but was either a persisting depressive disorder with relapsing major depressive episodes or, in the alternative, a relapsing/remitting major depressive disorder.
The Appeal Panel accepted that there was no evidence that the appellant was symptomatic in terms of her pre-existing conditions at the time she commenced work with the respondent. However, a deduction can be made under s 323 of the 1998 Act for a pre-existing asymptomatic condition (Marks). In this case, the Appeal Panel considered that the appellant had suffered a relapse of a pre-existing condition.
Dr Yueng, in her report dated 18 February 2022, made no deduction for a pre-existing injury or condition, but Dr Yueng relied on a denial by the appellant of “any previous episode of depression, anxiety or self- harm”. This history was not accurate and therefore the Appeal Panel placed no weight on the fact that Dr Yeung made no deduction pursuant to s 323.
After considering the evidence in this matter, the Appeal Panel concluded that a proportion of the impairment assessed would be due to the pre-existing injury or condition as the pre-existing injury had made a difference to the outcome in terms of the degree of impairment resulting from the subject work injury. The Appeal Panel, in making that conclusion, took into account the significant effects of the work injury in 2010 and the recurrent problems in 2014, 2015 and 2018 which required treatment and at times referral for specialist treatment. The Appeal Panel noted that Dr Dias on 18 February 2018 reported that the appellant was depressed and she said she had been depressed for many years.
The Appeal Panel considered that the proportion of the impairment caused by the pre-existing injury could not be precisely identified without difficulty or expense and therefore applied a 10% deduction pursuant to s 323 of the 1998 Act. The Appeal Panel did not consider that a 10% deduction was at odds with the evidence.
The Appeal Panel concluded that the appellant’s impairment in all of the PIRS classes apart from Employability was the same as assessed by the Medical Assessor. In terms of Employability, the Appeal Panel concluded that the impairment attributable to his psychiatric injury was a Class 5 – totally impaired.
The Medical Assessor made an assessment of 6% WPI in respect of a psychological injury. The Appeal Panel has now made a rating of Class 5 in the scale of Employability. The Median Class was 2 and the total Aggregate Score Impairment was 15. Therefore, using Table 11.7 of the Guidelines, the assessment of WPI by the Appeal Panel is 8%. The Appeal Panel then deducted one tenth pursuant to s 323 of the 1998 Act which resulted in an assessment of total WPI of 7% in respect of the injury deemed to have occurred on
21 May 2019.
For these reasons, the Appeal Panel has determined that the MAC issued on
30 January 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 PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5363/22
Applicant:	Sophy De Angelis
Respondent:	Solaris Paper Pty Ltd

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)

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)

26 February 2021

Chapter 11

Page 54-60

1/10

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

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2023] NSWPICMP 124

3 April 2023