Diaz v Sydney International Container Terminals Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Diaz v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 437
APPELLANT:	Leyre Diaz
RESPONDENT:	Sydney International Container Terminals Pty Ltd
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	9 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by claimant against 7% whole person impairment; psychological injury claim; whether error made by irrelevant considerations in social and recreational activities; whether error made in social functioning category due to circumstances involving sons; whether error made regarding application of section 323; reliance on Ballas v Department of Education (State of New South Wales) misplaced; Lancaster v Foxtel Management and Botha v Secretary, NSW Department of Customer Service considered and applied; desktop investigation results not adequately explained; history taken by Medical Assessor (MA) was thorough and more nuanced than others; Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; Held – there was no contemporaneous or other support for any causal connection between the work injury and the circumstances regarding the claimant’s son; deduction of ¼ was open to the MA; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 February 2024 Leyre Diaz, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 January 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 29 November 2023 this matter was referred to the Medical Assessor for an assessment of WPI/psychological disorder caused by injury on 14 March 2019.
Ms Diaz was employed as a crane driver and stevedore between 2014 and 2019. She was one of only three female workers on the waterfront and soon after she commenced work other workers started bullying her. She was sexually harassed and threatened with an assault. She also said she was being stalked. She was often called offensive names even at toolbox meetings but her managers who were aware of this conduct did nothing about it. Human resources were notified by they also did nothing to assist.
Some workers took photos off her social account and set up an OnlyFans account to bully her.
She complained about one year before she stopped working and sought treatment at that time.
The Medical Assessor assessed a WPI of 7%.

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.
The appellant did not seek a re-examination by a member of the Panel.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

The MAC

The Medical Assessor in noting Ms Diaz’s present treatment said:[1]
“She consulted Ruth Osborne previously. She currently has two psychologists, Nina, a psychotherapist for 2 to 4 years but she does not remember how often she sees her. She has another psychologist and does not remember her name. She consults Dr Ben Dickson, GP from Workers doctors and does not have a psychiatrist.”
[1] Appeal papers page 42.
The Medical Assessor noted in considering Ms Diaz’s present symptoms that Ms Diaz’s main difficulty was “going out as she worries about seeing people”. She said she had lost weight, weighing 48kg when previously she had weighed 55kg, but had not told her treating team about her weight changes.
The Medical Assessor noted that it was “difficult to assess distressing memories from previous non-work life events and their impact on her”.
The Medical Assessor noted a number of issues when considering Ms Diaz’s previous psychological condition prior to the occurrence of the subject injury. He said:[2]
“In terms of past psychiatric history, Ms Diaz was adamant she had never had any psychiatric problems or drug and alcohol problems before 2014.
I discussed with Ms Diaz, all the recorded history in her file, such as in Ms Osborne, the psychologist/drug and alcohol counsellors' notes in 2009 and 2007, and the history related to the potential of childhood abuse and trauma, domestic violence with the father of her two sons, previous use of recreational drugs, and that Dr Lim, her GP thought she had preexisting PTSD from childhood. Ms Diaz refuted all this and said it was not correct.
The only thing that she agreed with was that she saw Ms Osborne about 2009 for marital counselling. She said she was always a happy person and she was a happy child, and had been healthy and fit and surfed all her life. Therefore, she could not possibly have had a psychiatric problem before 2014.”
[2] Appeal papers page 43.
Part of the history was that in 2019 one of Ms Diaz’s sons had unfortunately committed suicide, as had his girlfriend. The Medical Assessor said:[3]
“I asked about her two sons and explained why I had asked those questions. She stated one of her sons passed away in June 2019 when he was 19 years old, and she said that he was not in jail or released from jail, as he was only in police custody. She stated he committed suicide because of her and her work injury. She went on to explain that she was always looking after him until the work injury and then she left him alone, and that was when he committed suicide.”
[3] Appeal papers page 43.
The Medical Assessor said that he tried to explore the psychological impact of a lot of these issues on Ms Diaz and he asked her how long she had been feeling stressed about her son. He reported:[4]
“…she was adamant she had never had any problems or stress with them until maybe one year before she stopped working in about 2018. She later went on to say that as teenagers they were getting into trouble, and ‘who does not have problems with their sons?’.”
[4] Appeal papers page 43.
Ms Diaz told the Medical Assessor that she only started using recreational drugs such as cocaine in 2018. He said:[5]
“….I noted to her, her file indicated she took recreational drugs before 2014 and she stated this was false. It is unclear from Ms Diaz, how long her sons' issues have been distressing her.”
[5] Appeal papers page 43.
In recording the social activities and activities of daily life reported to him by Ms Diaz, the Medical Assessor noted that she was 49 years old and had a dog and some cats. She spent most of her time with her animals. She read books and spent time online to watch videos and does not use social media now.
She said that she had not gone to the beach or run for a couple of years now.
He recorded:[6]
“She said he bought a horse to learn to ride, but cannot ride now. Her horse was agisted near her home but a friend gave her the wrong advice and the horse is now 1.5 hours away, and had moved three years ago. She has not visited her horse for many months now and does not ride. She stated if her horse was nearby, she would be seeing the horse everyday.”
[6] Appeal papers page 44.
The Medical Assessor questioned Ms Diaz about some records that said her childhood environment, was “like a war zone and she felt like she never left”.
Ms Diaz “did not agree with that, and did not explain why her treating team would write that”.
Similarly she stated that her relationship with the father of her sons with whom she was together for about 20 years on and off ended completely in 2012 but that they still talked. The Medical Assessor said:
“She went on to say that there was never any domestic violence or any abuse by him, even after we discussed some of the file entries, that suggested that was” [yet another inconsistency].”
In conducting the mental state examination, the Medical Assessor noted that Ms Diaz’s friend Melanie was present during the assessment. He said:[7]
“She spoke spontaneously and often started disputing the history in her file, before I could tell her all the history that have (sic) been written about her, and I discussed it is important for her to hear what I have read before she responds. I spent time explaining the Guides to ensure Ms Diaz understood why some questions were asked, which may not seem directly related to the subject injury, particularly issues already recorded in the records. I made sensitive enquiries and asked I asked Ms Diaz to tell me as much history as possible, within her comfort level. …”
[7] Appeal papers page 44.
In his summary,[8] the Medical Assessor said:
“It was difficult to assess Ms Diaz, given her contradictory and inconsistent responses to many of my questions regarding her file, and I noted Dr Samson Roberts and Dr Tanveer Ahmed also reported difficulties in their assessments. Overall, the evidence suggests an extensive history of trauma and a history of substance use, with aggravation and deterioration in the context of work from which she had not recovered. Because of the many inconsistencies, it is difficult to assess her impairment with precision.”
[8] Appeal papers page 45.
The Medical Assessor in his summary noted the assessments by Dr Samson Roberts for
Ms Diaz and Dr Tanveer Ahmed for the respondent.
In relation to Dr Roberts’ assessment of social and recreational activities the Medical Assessor said:[9]
“In terms of social and recreational activities, it is difficult to assess because she stopped all activity since she discovered the surveillance material. On assessment, she said that if her horse was nearby she would go and see the horse every day without prompting and a support person, and it is her main hobby. I noted she still has regular contact with some friends and they eat out together and she still enjoys this, and therefore my view is a 2 is more accurate.”
[9] Appeal papers page 45.
The Medical Assessor noted in respect to social functioning that Ms Diaz had;
“clearly lost some friends and there appears to be a longstanding problem with her son and the relationship is less close now. She has a reasonable relationship with her siblings and mother but never with her father, as there were pre-existing problems. Her partnership ended many years ago and is unrelated to the work injury. Overall, this is more consistent with a 2.”
The Medical Assessor noted that Dr Roberts did not make any deduction pursuant to s 323, but the method Dr Roberts used was beyond power.
Dr Ahmed applied two deductions, one for s 323 and the other for the suicide of her son subsequent to her ceasing employment. The Medical Assessor stated “…it is difficult to assess whether Ms Diaz’s son’s circumstance was a pre-existing or subsequent issue, therefore I have set it aside from my s 323 assessment. I have not modified the WPI for a subsequent stressor, as there is no evidence of a subsequent psychological injury.”
At [10c] of the MAC, the Medical Assessor made further comments about the accompanying material.
The Medical Assessor noted Dr Roberts’ history that Ms Diaz had not used drugs for months such as cocaine, that she was living with her son and his girlfriend came to clean and they cleaned together.
The Medical Assessor referred to Ms Diaz’s statement, noting that Ms Diaz saw a psychiatrist on 21 May 2019 and that her son who was then 17 was an emotional support for her.
The Medical Assessor noted within Ms Diaz’s statement a referral to her other son committing suicide followed by his girlfriend who also committed suicide. Ms Diaz was then admitted in October 2019. The Medical Assessor noted that in the past Ms Diaz occasionally used cocaine and increased her use after 2018.
He noted that she entered a Sydney clinic in May 2021 for withdrawal from cocaine.
The Medical Assessor also noted a statement from a friend who had known Ms Diaz for 20 years and confirm that she started work in March 2014 and that the changes in her were “quite stark”.
The Medical Assessor then referred to several reports from Ms Ruth Osborne, drug and alcohol counsellor and psychologist.
The Medical Assessor noted that Ms Diaz had been a patient of Ms Osborne since 2007 over marital issues, but that the file was destroyed when Ms Osborne’s office was renovated. There was no consultation for an extended time after 2009 and it was March 2018 when she returned for a further consultation in relation to workplace problems.
Ms Osborne noted that Ms Diaz was then very worried about the health and safety of her sons who had physical, mental health and legal issues. It was from this source the Medical Assessor obtained the background that Ms Diaz felt that her childhood was like a war zone and she had never left.
Ms Osborne and Ms Diaz in the past had discussed Ms Diaz being taken from her grandparents’ care into a dysfunctional family where her father abandoned her and went back to Spain and her mother blamed her. The Medical Assessor noted in parenthesis that Ms Diaz did not agree with this summary.
The Medical Assessor said that Ms Diaz and Ms Osborne discussed anger management and “there is a history of family trauma and abuse which had been repeated with her own children and the traumatic end to her relationship with her children’s father, losing her job under unfair circumstances was also adding to her distress”.[10]
[10] Appeal papers page 47.
The Medical Assessor noted Dr Lim’s note on 14 March 2019 that Ms Diaz had pre-existing post-traumatic stress disorder from childhood trauma with a diagnosis of adjustment disorder. Again in parenthesis the Medical Assessor noted that Ms Diaz did not agree with that record.
A note from Ms Osborne dated 13 March 2019 showed an original consultation in 2005 after a marital breakdown. Ms Diaz’s experiences at work and home (presumably at the time of the consultation) “had triggered and exacerbated her chronic anxiety and PTSD”.
The Medical Assessor noted Dr Roberts’s later report of 11 October 2019 which contained a note that her son had recently committed suicide. Dr Roberts recorded that Ms Diaz did not use illicit drugs until she was over 30 years old and that they were stimulants intermittently and methamphetamine, Ketamine, and GHB. He also recorded that she started using drugs with people from her former workplace. The Medical Assessor again noted that Ms Diaz did not agree with this history, saying that there was no former workplace.
In dealing with the history taken by Dr Roberts, the Medical Assessor said:[11]
“(Comment: Dr Samson Roberts noted childhood adversity and past substance
use, but said she has no past psychiatric history).”
[11] Appeal papers page 48.
The Medical Assessor noted Dr Roberts’ further report of 28 June 2021 which reported that Ms Diaz’s horse was kept nearby but she only visited it infrequently and last did so two weeks before. Dr Roberts noted that Ms Diaz had a recent admission to withdraw from her cocaine use.
The Medical Assessor then addressed Dr Roberts’ report of 27 June 2022 in which
Dr Roberts advised that Ms Diaz’s son’s death did not alter his opinion, given that there was an absence of information regarding the emergence of grief.
Dr Ahmed’s report of 17 October 2022 was noted by the Medical Assessor, along with his opinion that Ms Diaz had an extensive past psychiatric history including treatment for chronic anxiety and post-traumatic stress disorder from 2008, coinciding with the relationship breakdown as noted from “Ms Stone”. We assume that the Medical Assessor meant
Ms Osborne. Dr Ahmed also referred to a childhood post-traumatic stress disorder which had been denied to the Medical Assessor by Ms Diaz.
Although he initially came to an entitlement of 18% WPI Dr Ahmed amended that assessment in his report of 9 November 2022 when he was seized of the QuantumCorp report of 17 July 2022. Dr Ahmed thought that the contents of the report demonstrated that Ms Diaz was more functional than he had assumed and he reduced his assessment to a figure that was eventually certified at 14% in a later report.
As to the QuantumCorp report, the Medical Assessor said:[12]
“Quantumcorp, 15 July 2022, noted online activity, possibly more functional than reported, with activity such as horse riding, gym, boxing sessions and socialising. The fansly homepage is no longer active and there is no evidence to suggest she was involved in work activity.
I noted photos in June 2022 when she was wearing makeup and appeared to be socialising or out drinking with people, and also riding a horse possibly in January 2022 and on the beach with her dog with several other females, and a photo where she appeared to be in a gym. There were several other photos with her animals and also riding her horse dating back to 2019.”
[12] Appeal papers page 49.
The Medical Assessor assessed a deduction of ¼ pursuant to s 323. He explained his reasoning in paragraph [11].[13] He said:
“(i) There was a pre-existing condition, with a significant trauma history and evidence of
anxiety and depressive symptoms, consistent with PTSD, and previous substance use and likely substance disorder, all of which she refuted.
….
(i) Ms Diaz's pre-existing condition contributed to her current impairment, because many of her previous psychological symptoms, behaviour and impairment are similar to her current psychological injury, and at least a part of her current injury is a recurrence of the previous injury, resulting in a greater overall impairment. My view is she developed an aggravation of pre-existing PTSD and substance use disorder.
c. One-tenth deduction is at odds with the evidence, as the pre-existing contribution is not a minor contribution and there are many documents related to her past psychiatric history, even though she disputed or does not agree with them. I have applied ¼ deduction.”
[13] Appeal papers page 49.

Thus in his table 11.8 psychiatric impairment rating scale (PIRS) rating form the Medical Assessor assessed the final WPI as being 7%.
The details of the PIRS reasoning will be considered below.

SUBMISSIONS

Appellant

Ms Diaz’s submissions were prepared by Mr Craig Tanner of counsel.
The appellant based her appeal on three issues. Firstly, that the Medical Assessor had erred in finding a class 2 rating for the category of social and recreational activities, secondly in finding a class 2 rating for the category of social functioning and thirdly by assessing ¼ as being deductible pursuant to the provisions of s 323 of the 1998 Act.

Social and recreational activities

Mr Tanner submitted that the baseline description of social activities in the case of a person who had no deficit was defined in the class 1 descriptors. The activities to be considered were accordingly to be both social, that is to say involving many people, and recreational.
Ms Tanner submitted that the definition of the word recreational was an activity engaged in for enjoyment.
Mr Tanner referred to the descriptors for both a class 2 and a class 3 impairment rating, highlighting those parts of each descriptor that he submitted were relevant.
He reproduced the findings by the Medical Assessor and Ms Diaz’s explanation of the matters therein discussed.
Mr Tanner submitted that the Medical Assessor had misdirected himself by having regard to evidence which was not relevant to events of a social nature. He submitted that the matters referred to by the Medical Assessor in that passage were solitary in nature, namely social media activities, spending time with her horse and listening to music at home. Mr Tanner submitted that none of those activities were “organised social events”.
Mr Tanner submitted that the Medical Assessor had referred to activities with Ms Diaz’s best friend Melanie in his assessment of the category of social functioning. They were not contemplated by this category of social and recreational activities.
He submitted that there was no evidence that Ms Diaz engaged in social activities in the broader community as an active participant, which was indicated in the descriptors for class 2.
The Medical Assessor had failed to acknowledge Mr Tanner submitted, the symptoms he had recorded earlier in the certificate regarding Ms Diaz’s profound difficulty in coping with being in public and being exposed to people.
He referred to the comment recorded by the Medical Assessor that Ms Diaz’s main difficulty was going out and that she only went to Woolworths to buy toiletries and animal foods and that she could not tolerate being there long.
If going to the supermarket was an ordeal, then Mr Tanner argued she would not be able to participate in social events contemplated by this category. It was consistent with the category of social functioning.
Mr Tanner than referred to Ballas v Department of Education (State of New South Wales).[14]

[14] [2020] NSWCA 86.

Social functioning

Mr Tanner again set out the descriptors for class 2 and class 3 in this category, arguing that the Medical Assessor had fallen into error in the class 2 rating that he assessed.
We were referred to the reasons given by the Medical Assessor, and to those given by
Dr Roberts, whom Mr Tanner observed also gave a class 2 rating in this category. However, he submitted that the Medical Assessor had “failed to note and address” Ms Diaz’s separation from her surviving son. Mr Tanner noted that Dr Ahmed had recorded that fact, which, it was submitted, shifted the relevant classification rating from 2 to 3.
It was further submitted that the Medical Assessor had failed to appreciate the extent of the breakdown of Ms Diaz’s relationship with both her sons. Mr Tanner acknowledged that the Medical Assessor had taken a history of the suicide but had failed to refer to the relationship between the suicide and Ms Diaz’s subject injury in assessing the breakdown of the family unit. We were referred to the history taken, which we have reproduced above, with
Mr Tanner is emphasising the history Ms Diaz gave that her son had “committed suicide because of her and her work injury”. Mr Tanner also relied on her statement that she was “always looking after him until the work injury and then she left him alone, and that was when he committed suicide”. Mr Tanner submitted that it would be difficult to conceive of more stressful examples of family breakdown.
At least, he argued, the circumstances warranted a class 3 rating, but indeed the tragic circumstances of this case should have prompted the Medical Assessor to find a class 4 rating, and Mr Tanner referred to the descriptors for that class.

Section 323

Mr Tanner noted that the Medical Assessor had made a deduction of one quarter in applying the provisions of this section, and we were referred to the reasons given. However, those reasons were “unsubstantiated speculation” regarding the pre-existing circumstances that the Medical Assessor relied on. We were referred further to the Medical Assessors discussion regarding the evidence on which he based his finding.
Mr Tanner submitted that the records of Ms Osborne were limited in their application and that there was no evidence that Ms Diaz required treatment for any psychological condition after she ceased consulting Ms Osborne for marital problems in 2009. Mr Tanner noted that when Ms Diaz went back to Ms Osborne in 2019, it was for treatment for the bullying that was the basis of the subject injury.
Mr Tanner submitted that the Medical Assessor did not consider or explain how any pre-existing condition, which did not have any adverse effect on Ms Diaz’s capacity to secure and retain employment, and which did not require treatment, had contributed to the overall impairment assessed in 2023. Mr Tanner argued that there was no evaluation of the evidence in order to consider the questions of contribution.
We were referred to well accepted authority as to the appropriate method of applying the provisions of this section, and particularly that the assessment is not to be made on the basis of assumption or hypothesis. Mr Tanner, by appropriately citing authority, also submitted that the assessment had to be undertaken in the light of the evidence before the Medical Assessor.
Mr Tanner submitted that it was “plain” that the Medical Assessor did not utilise his medical judgement knowledge and experience, nor did he have regard to the evidence as to any contribution from any asymptomatic pre-existing condition. The Medical Assessor had proceeded on the assumption that this pre-existing condition contributed an impairment constituting one quarter of the impairment caused by the subject injury, without giving adequate reasons. Mr Tanner, to illustrate this point, referred in some detail to Fardell v Clinton Industries Pty Limited.[15] He submitted that no explanation had been given as to why one quarter was chosen as opposed to a different fraction, and this constituted a failure to provide adequate reasons. We were referred to s 323(2) and its statutory assumption of a 10% deduction, which Mr Tanner submitted would be appropriate in the event that the Panel found any pre-existing condition.

Respondent

[15] [2022] NSW SC 111.

Social and recreational activities

The respondent referred to evidence that it had commissioned by way of a Desktop Investigation. It was contained in a report dated 15 July 2022 from Quantumcorp. The respondent summarised the contents of the report, noting that it contained post injury photographs on Ms Diaz’s Instagram page depicting her doing the following:
·        posing with friends;
·        attending bars;
·        sitting on a public beach;
·        riding a horse;
·        participating in equestrian activities;
·        attending several classes at the gym, and
·        recording and posting Tiktoks.
The respondent noted that there had been no explanation from Ms Diaz about her social media post and it could accordingly be accepted that what was there depicted occurred at or around the time they were taken, that is to say after the date of injury. This evidence constituted “clear and objective” proof that Ms Dyers had been engaging in social and recreational activities beyond her alleged capacity.
The respondent submitted that when Dr Ahmed reviewed those posts, and he issued a further report dated 9 November 2022 in which he revised his assessment as he was satisfied that Ms Diaz had been clearly overstating her level of dysfunction. He accordingly reduced the class 3 rating to class 2 in this category.
The Medical Assessor, the respondent submitted, reviewed that report and made observations which were reproduced. With regard to the involvement by Ms Diaz with her horse, the comments made by the Medical Assessor could lead to the inference that it was the geographic distance that caused her not to be riding it anymore, rather than any psychological restrictions in her social and recreational activities.
Further, the respondent submitted that the class 2 rating assessed by the Medical Assessor was appropriate in view of all the material before him. That included the desktop investigation, and it included the contradictory and inconsistent responses noted by the medicolegal experts as well as himself. In the light of that material, the respondent submitted that Ms Diaz was seeking an alteration in the rating over a difference of opinion about which reasonable minds might differ.

Social functioning

The respondent submitted that in this category the assessment should be looked at in the context of the entire MAC as a whole. The evidence established a clear history of family issues that predated the subject injury. The Medical Assessor indeed noted that there had been long-standing problems with Ms Diaz’s son, although there was a reasonable relationship with her mother.
In the wider context, the respondent submitted that in examining the deterioration in relation, “it is imperative” to have proper regard to the pre-injury extent and quality of the relationship. This approach was reflected the reasons given by the Medical Assessor within the PIRS rating form, which it reproduced.
Ms Diaz, the respondent submitted, had sought to argue that the tragic suicide of her son warranted a class 3 or even a class 4 rating. However, it submitted, there was insufficient objective evidence to conclude that there was a causal relationship between the work injury or WPI arising therefrom.
We were referred to the accounts given by both medicolegal experts about the suicide. The respondent noted that Dr Roberts did not consider the suicide to be a relevant factor, and indeed that he, like the Medical Assessor, had given a class 2 rating for this category.
Dr Ahmed considered that the death was a major non-work-related stressor. The Medical Assessor, it was submitted, had not erred by not referring to that incident in his assessment.
The respondent submitted that there was insufficient objective evidence to conclude that there was any causal relationship between this tragic event and the subject injury. This was the approach by the medicolegal experts.
The appellant’s submissions were no more in the final analysis than the expression of a difference of opinion about which reasonable minds might differ.

Section 323

The respondent referred to well accepted authority about the application of this section. It submitted that the one quarter deduction was appropriate in view of the many issues that arose throughout the evidence. The respondent listed;
·        the reports from Ms Osborne, Drug and Alcohol counsellor and psychiatrist;
·        Dr Eric Lim’s note on 14 March 2019 of a pre-existing post-traumatic stress disorder from childhood trauma;
·        Dr Roberts’ record regarding Ms Diaz’s childhood and past substance abuse, and
·        Dr Ahmed’s report of an extensive history of past psychiatric issues, including treatment for chronic anxiety and post-traumatic stress disorder from 2008.
We were referred to the explanation given by the Medical Assessor and particularly his statement that he could not reconcile the inconsistencies notwithstanding his attempts to do so. We were referred to Chapter 1.6 of the Guides and the respondent submitted there was “overwhelming objective evidence” that showed that Ms Diaz had a pre-existing injury, condition or abnormality. It was further submitted that the Medical Assessor was required to consider this evidence, and had done so. The conduct of Ms Diaz in her apparent disregard and refusal to clarify that evidence respondent submitted to be met with some scepticism. Her subjective account regarding these matters were of little weight.
As to the alleged failure by the Medical Assessor to explain how the underlying condition had actually contributed to Ms Diaz’s current condition, we were referred to the reasons he gave, and the respondent submitted that he had “clearly turn his mind” to the relevant issues. His reasoning was consistent with relevant legal authorities and Guides, including Fardell. The facts and circumstances demonstrated that the deduction was not too costly or difficult to determine as there was a “plethora of treating evidence” and the deduction was consistent with that evidence.

CONSIDERATION

The scheme for the assessment of WPI caused by psychiatric and psychological disorders is governed by Chapter 11 of the Guides and the rating scale therein.

The Psychiatric Impairment Rating Scale (PIRS)

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[16] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[16] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[17]
[17] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[18] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[19]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[18] [2017] NSWSC 887.
[19] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[20] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[20] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a)    if the categorisation was glaringly improbable;
(b)    if it could be demonstrated that the AMS was unaware of significant factual matters;
(c)    if a clear misunderstanding could be demonstrated; or
(d)    if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[21] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[21] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
We turn now to the issues raised by the appellant.

Social and recreational activities

Table 11.2 of the Guides provides relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
Table 11.8 provides the templated rating form which a Medical Assessor is required to complete as part of the Medical Assessment Certificate. The reasons given by the Medical Assessor for giving a class 2 rating in this category were:
“I discussed desktop investigation and the photos online, and she said she does not do these activities anymore. She said she has not gone to the gym or gym classes for many months now.
She stated if her horse was nearby, she loves to spend time with the horse even if she could not ride the horse, and would go daily, but the horse is agisted too far away now. She has regular activities with her best friend nearby, and most activities at home. She listens to music at home.
Taking the inconsistencies into consideration, my view is she does not need a support person or prompting and can actively participate in occasional recreational activities, some solitary activities and some with her best friend. They visit each other at home and eat together.”

The appellant submitted that the discretion given to Medical Assessors by Table 11.12 which we described above, was fettered by dicta from Ballas. Although Mr Tanner did not refer us to the relevant passage, we assume that he was relying on [94] of the joint judgement of Bell P and Payne JA, (Emmett AJA agreeing):
“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 [whole person impairment] 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.”
This paragraph was considered by Basten JA, sitting in the Common Law Division of the Supreme Court, in Lancaster. His Honour noted that the facts in Ballas concerned a decision of the delegate who declined to refer that appeal to a Medical Appeal Panel. Basten JA noted at [70] that the plaintiff contended in her appeal that the Approved Medical Specialist (as Medical Assessors were then called) had wrongly taken into account, in assessing the social and recreational activities category, “a solitary activity which might have been relevant to other areas of impairment, but did not bear upon that identified as social and recreational activities”. His Honour said at [70]:
“….The Court accepted that submission, concluding that the delegate did not properly consider whether that contention was capable of constituting a “demonstrable error”…..However, the Court then proceeded, in a passage on which the plaintiff relies, making the following observations:…”
Basten JA then extracted [94] from Ballas, reproduced above.
At [71] his Honour said:
“….The use of the phrase “taking into account an irrelevant consideration” might suggest an error of a kind which would be described as jurisdictional error for the purposes of judicial review, and hence applicable in the present case. However, the Court in Ballas did not say that the delegate was required as a matter of law to identify a jurisdictional error on the part of the medical specialist. It was sufficient (as the Court held) that the delegate had failed, through a misunderstanding of her proper function, to accept an argument that was capable of amounting to “demonstrable error” on the part of the medical specialist.”
His Honour continued at [72]:
“The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor “social and recreational activities” if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term “recreational” by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.
Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas….”
In Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 Stern JA, also sitting in the Common Law Division of the Supreme Court, considered the dicta in Ballas. Her Honour said from [66]:
“66    ….In these circumstances, the word “attends” in the Medical Assessor’s conclusion as to categorisation on the Social and Recreational PIRS should be read as encapsulating attendance at social activities both inside and outside of the plaintiff’s home.
67.   In my judgment, that is entirely consistent with the proper construction of the Social and Recreational PIRS. In particular, consistent with the approach to construction of the Guidelines set out (authorities omitted), it is appropriate to have regard to considerations of text, context and purpose, and to the fact that the Guidelines are not drafted by Parliamentary Counsel. As to text, table 11.2 must be construed having regard to the clear instruction at [11.12] …. and reflected in Garling J’s judgment in Jenkins, that the examples of activities in the tables are “examples only” and that the assessing psychiatrist should consider activities that are usual for the person’s age, sex, and cultural norms. I have also had regard to the fact that, on the Social and Recreational PIRS against Class 1 – no or minor deficit, the drafter has referred to participation in social activities, whereas against Classes 2 and 3 – respectively mild and moderate impairment, the drafter has referred to a worker going out to “such events”. I doubt very much that it was intended that a higher standard of engaging in activities outside of a worker’s house, rather than participation in such activities, was intended as regards Classes 2 and 3, as opposed to Class 1.
68.   As to context, it is clear that the aim of table 11.2[22] is to provide a tool for trained psychiatrists to assess a worker’s impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker’s home could be taken into account in making such assessments. …[T]he intention in table 11.2 is not to provide a tool for assessing a worker’s ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational. There is no good reason why such activities would have to occur outside of a worker’s home. Indeed, the artificiality of the plaintiff’s proposed construction is apparent from her contention that a face to face catch up with a friend or friends can be a social and recreational activity if it occurs at the friend’s house but must be ignored when making an assessment using the Social and Recreational PIRS if the friend or friends come to visit the plaintiff. Similarly, it is wholly artificial to suggest, as the plaintiff did, that the plaintiff hosting a birthday party must be ignored when assessing impairment on the Social and Recreational PIRS.
69.   Considerations of purpose point in the same direction. Given that the purpose of the Social and Recreational PIRS is as a tool for trained psychiatrists to assess the functional impact of an injury on a worker’s social and recreational activities, there is no sound reason why a distinction should be drawn between activities within or outside of the home. It is the social and recreational character of the activities that is relevant.
70.   That is not to say that there may not be scenarios where the circumstances in which an interaction with a friend occurs, including the fact that it occurs in the worker’s own home, or the lack of information about the circumstances of the interaction, might suggest that it is properly to be considered by reference to the PIRS for social functioning rather than social and recreational activities (as was the case in Ballas). However, where, as here, the Medical Assessor recorded that the plaintiff enjoyed visits both to and from her friends, and those visits occurred at a regular frequency and also that the plaintiff enjoyed “small celebrations at home”, such activities can properly be considered as falling within Class 2 of the Social and Recreational PIRS.”
[22] [Table 11.2 provides that a psychiatrist who has undergone appropriate training is to conduct an evaluation of psychiatric impairment].
It can thus be seen that, whilst there may be some tension between the interpretations of the Ballas decision, both Stern JA and Basten JA have delivered opinions that a Medical Assessor is entitled to consider in this category, activities that are either carried out at home or which are solitary, or which are both. We accept that the ratio decidendi of Ballas is limited to the correction of the error by the President’s delegate in not referring that appeal to a Medical Appeal Panel.
Mr Tanner’s criticism of the findings by the Medical Assessor must be seen in the light of the above development of the law, and his submissions that the social media activities, spending time with her horse and listening to music at home could not be recreational or social activities must be rejected. Listening to music of itself can be such an activity, as would be spending time alone with a pet, be it a horse or a dog.
The social media activities described in the Quantumcorp desktop investigation however also depicted Ms Diaz as being involved in many activities that were consistent with a mild or even minor deficit. We note that this material was obtained when Ms Diaz had disabled the privacy settings for a short time on her Instagram account, which enabled investigators to download several photographs, before Ms Diaz set the profile back to Private. In the Quantumcorp investigation Ms Diaz was depicted wearing make-up and posing in photographs in April, May and June 2022.[23] A photo dated 24 January 2022 depicted
[23] Appeal papers from page 212.
[24] Appeal papers from page 217.
Ms Diaz on a horse which had reared up on its back legs, and another photo depicted her at a beach with a dog on 14 January 2022. She is also depicted in a group photograph at what appeared to be a gym on 25 January 2022.[24] Photographs were also obtained of her in 2021 depicting her again in a gym, and riding her horse in what appeared to be an equestrian event, these activities interspersed with many selfies and posed photographs. There were photographs of her riding her horse on a beach and showjumping her horse at what appeared to be an equestrian centre in December 2020. Similarly, during 2020 photographs of Ms Diaz posing and wearing makeup, riding her horse and in company with her dog were obtained.
It is not without relevance that the report from Quantumcorp was dated 15 July 2022 and that, when Dr Ahmed was asked to comment on 9 November 2022, he reduced his impairment estimate, noting that Ms Diaz was “clearly more functional than her reports during my interview,” and that “she is clearly overstating some of her level of dysfunction.”
We note that Ms Diaz told the Medical Assessor that she did not “do these activities anymore,” but, in keeping with her general unhelpful attitude as described by the Medical Assessor, did not offer any explanation as to why that was so. Ms Diaz was shown to be active socially and recreationally in those photos, which covered a period of over two years. There being no explanation from Ms Diaz as to why she ceased those activities, nor why she had now a “profound difficulty” in coping with being in public, we accept that the Instagram material gives an objective picture of her social and recreational activities. It depicts a person with very little deficit, and the class 2 rating is confirmed.

Social functioning

The relevant classes are contained in Table 11.4:
“Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4 Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).”
The Medical Assessor gave the following reasons for his class 2 rating:
“Ms Diaz has not had a partner for many years. She is anxious and socially avoidant, and ceased contact with most of her friends. She has maintained a few long-term friendships. She sees Melanie, her best friend who was present in the assessment regularly. She talks to another friend occasionally.
The relationship with her general family has been distant, and overall reasonable, except with her father and she does not discuss the pre-existing relationship problems with him. The relationship with her son is intact.”
We note the concession made by Mr Tanner that Ms Diaz’s medicolegal expert Dr Roberts also assessed a class 2 rating in this category. The reasons given by Dr Roberts were:[25]
“Ms Diaz’s relationship with her son is, by her account, strained, but she retains his support. She has friends who maintain contact and are concerned for her. Her level of mood disturbance, her level of disorganisation and her level of social withdrawal are likely to undermine friendships and it is appropriate to consider her mildly impaired in this area.”
The respondent’s medicolegal expert, Dr Ahmed, in contrast found a class 3 rating, and
Mr Tanner supported that opinion by submitting that both the Medical Assessor and
Dr Roberts had failed to note or address the separation between Ms Diaz and her surviving son. Dr Ahmed said:[26]
“This does refer to more inter-relationships. It is clear that her son has moved out due to her difficulties.”
[25] Appeal papers page 167.
[26] Appeal papers page 199.
The decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak,[27] is commonly referred to in this jurisdiction for its description at [47] of the function required to be performed by a Medical Assessor, as it is accepted that the decision also applies to Medical Assessors as well as Appeal Panels:
“The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[27] [2013] HCA 43.
The evidence that Ms Diaz’s surviving son and she are estranged was expressed in different ways. Dr Roberts reported that as of 27 June 2022, the date of his report, Ms Diaz’s son no longer wanted to live with her. [28] On 17 October 2022 Dr Ahmed reported that Ms Diaz’s 21 year old son had moved out “due to a strained relationship”.
[28] Appeal papers page 161.
The Medical Assessor made a somewhat more nuanced enquiry regarding Ms Diaz’s relationship with both her sons. He noted that the son who died in June 2019 was in police custody, and the other son had gone to rehab for drugs. When the Medical Assessor sought to enquire further about her sons, he was told that she had never had any problems or stress with them until about a year before she ceased work, but later she said that as teenagers they were getting into trouble. The Medical Assessor noted that it was unclear from Ms Diaz how long her sons’ issues had been distressing her. He noted that there appeared to be “a long-standing problem with her son and the relationship is less close now.”
As indicated, the function of a Medical Assessor is to bring his own experience and clinical expertise to form his opinion. He had the advantage of a face-to-face consultation, albeit by video, and the value of his clinical observations cannot be underrated. He was aware that the relationship between Ms Diaz and her son was less close, and he was aware that the two were not living together, as he had noted that Ms Diaz lived on her own with a dog and cats. Although the relationship was less close, the Medical Assessor was satisfied that it was of long standing.
We are thus satisfied that the Medical Assessor was seized of all relevant facts and we do not find his reasoning to have been inadequate.
We also reject the submission that the suicide of Ms Diaz’s other son was a relevant factor. The Medical Assessor was aware of the relevant facts. He recorded that Ms Diaz stated that the tragedy occurred because “of her and her work injury.” He noted her explanation that “she was always looking after him and then she left him alone, and that was when he committed suicide”.
It is not surprising that the Medical Assessor did not “return to that history,” as the appellant put it. It was not of itself a relevant factor. In Ms Diaz’s statement of 11 August 2021, taken over three years closer to the event, she made no reference to her work injury, she said that she was in Western Australia at the invitation of a friend when she was advised of her son’s death. She was “very distraught” and contemplated suicide herself. She obtained medical treatment and was treated by her psychologist, and she mentioned a Dr George. We note the inconsistency in her account that she had left her son alone but that he died in police custody.
We were not directed to any clinical note which gave contemporaneous support to Ms Diaz’s allegation, made for the first time to the Medical Assessor on 16 January 2024. Neither were we referred to any comment in the medicolegal material in support of this alleged causal connection.
Ms Diaz did not present to the Medical Assessor as a credible witness. He described her as “contradictory and inconsistent” in view of her recalcitrant and uncooperative responses to his queries. We accordingly are reluctant to accept her allegations unless they are independently supported by plausible evidence. Her allegation, such as it was, that the subject injury was somehow causally linked with this tragedy is unsupported, and was made for the first time over five years after the event. The most charitable view of it is that Ms Diaz has innocently reconstructed her memory, but in any event there is no plausible evidence of any such connection, and we accordingly confirm the class 2 rating.

Section 323 of the 1998 Act

It is not necessary to consider this ground in any detail, as the outcome will not affect the final PIRS score, which will remain beneath the 15% threshold. Suffice it to say that the evidence of medical treatment dating back to 2005 referred to by the Medical Assessor was sufficiently detailed that a deduction greater than the statutory assumption of 10% was called for. The deduction of ¼ was open to the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 January 2023 should be confirmed.

[2024] NSWPICMP 437

9 July 2024