Dogon v Supagas Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Dogon v Supagas Pty Ltd [2021] NSWPICMP 107
APPELLANT:	Laurence Dogon
RESPONDENT:	Supagas Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	30 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker suffering primary psychological injury appeals against the classification of the Medical Assessor in the PIRS categories of travel, concentration, persistence and pace and employment on the basis there was an error of a type identified in Ballas v Department of Education (State of New South Wales); Ballas considered and applied; the Appeal Panel agreed with the respondent that “volunteer work” is not a particular conduct but a description of several different roles that encompassed various different types of conduct; Held- no error demonstrated; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 April 2021 Laurence Dogon (the appellant) made an application to appeal against a medical assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission). The medical assessment was made by Dr Douglas Andrews, Approved Medical Specialist (the MA) and issued on 29 March 2021.
The respondent to the appeal is Supagas Pty Ltd (the respondent).
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 was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued 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 his employment as business development manager when he assisted at the scene of a motor vehicle accident on 18 October 2018.
The matter was referred to the MA, Dr Douglas Andrews, on 14 January 2021 for assessment of whole person impairment (WPI) of the appellant’s psychological/psychiatric disorder attributable to the injury on 18 October 2018.
The MA examined the appellant on 24 March 2021 and assessed 13% WPI in respect of the psychological/psychiatric disorder. The MA made a deduction of one-tenth for a pre-existing condition under s 323 of the 1998 Act. Therefore, the total WPI was 12% as a result of the injury deemed to have occurred on 18 October 2018.

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 he be re-examined by a MA, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

The parts of the medical certificates given by the MA that are relevant to the appeal are set out 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:
·        In its recording of findings under the Psychiatric Impairment Rating Scales (PIRS), the Medical Assessment Certificate (MAC) contained one or more errors of a type identified in Ballas v Department of Education (State of New South Wales) [2020] NSWCA 86 (Ballas).

·        Ballas is authority for the propositions that the PIRS scales are 'fixed and are treated by the guidelines as distinct from each other’ (at [92]) and that each individual type of conduct relevant to a PIRS evaluation can only be used by the MA within the scale that best describes that conduct and is not to be used in more than one scale [83] to [101].

·        In the present case, the above principles in Ballas were infringed as follows:

(a)When assessing the separate scales of concentration and adaptation, the same conduct by the appellant in performing volunteer work was included for consideration. The performance of this work should have been considered in only one scale, not two. When it then fell to the MA to conduct a clinical evaluation as to the appropriate class level in each scale, the appellant was disadvantaged by being denied the opportunity of a higher rating in the scale in which the finding did not belong.

(b)Likewise, when assessing the scales of travel and adaptation, the same conduct by the appellant in performing volunteer driving work was included for consideration as part of both. The performance of this driving should have been considered in only one scale, not two. Again, when it came to evaluating the appropriate class level, the appellant was denied a potentially higher rating.

(c)In addition or in the alternative, it was a Ballas error to consider, per se, the effect of the volunteer activities under the concentration scale. Those activities were better described and more appropriately considered under the scale of social and recreational activities as a part as what was described in Perry v George Weston Foods Limited [2021] NSWSC C 359, per Rothman J at [59], as "the process of withdrawal from more usual social and recreational activities".

(d)Likewise, the same error was made in considering the volunteer activities under the adaptation scale.

(e)In addition, in the recording of the reasons for the decision in relation to the adaptation scale, it was an error to find that "Uber dropped him because his vehicle was too old". Given that his Uber driving took place more than 12 months before the MA examination, it is not clear how it was relevant or what significance it received. The finding did not belong in the adaptation scale.

·        The above mistakes are demonstrable errors ascertainable from a reading of the MAC itself. They also show that the assessment was made on the basis of incorrect criteria.

·        The MAC should be set aside.

·        There should be a re-referral to a different MA.
The appellant referred to the scales of concentration and adaptation in the above submissions. The Appeal Panel has assumed that the appellant intended to refer to the scales of “concentration, persistence and pace” instead of “concentration” and to “employability” in instead of adaptation.
The respondent’s submissions include the following:
·        The appellant misconstrued both Ballas and the assessment of the MA. Ballas is authority for the proposition that ‘particular conduct will fit within one or other of the scales’ at [94]. ‘Volunteer work’ is not particular conduct but a description of a role that the appellant undertook that encompassed various different types of conduct. The MA has, whilst referring to the broader role of ‘volunteer work’, clearly specified the particular conduct within that role that applies to each of the PIRS.

·        Therefore, the MA’s consideration of the volunteer work in the scales of concentration, persistence and pace (Table 11.5) and employability (Table 11.6) are distinct as relating to different conduct within the broader definition of ‘volunteer work’; and the MA has correctly considered the appellant’s conduct in performing those activities.

·        Under the scale of concentration, persistence and pace (page 10 of the MAC), the MA noted the appellant’s volunteer activities required engagement, concentration and persistence. The MA has recorded in the MAC that the relevant conduct included: structured training of guide dogs; lighting ovens and checking food at a commercial kitchen; and, acting as a personal trainer for a young man with epilepsy and intellectual disability (paragraph 10c, page 7; and paragraph 4, pages 3-4 of the MAC).

·        In applying Table 11.5 of the Guidelines, the MA noted that those roles required engagement, concentration and persistence. Specifically, on page 7 of the MAC, the MA opined that the appellant’s voluntary activities required ‘concentration, persistence and pace’.

·        The MA correctly identified that the appellant’s voluntary work required concentration and persistence. In particular, the appellant is a personal trainer for a person with a disability. The role of a personal trainer in general requires persistence for a successful outcome. The provision of these services to a person with a disability would require a greater need for persistence and concentration (i.e. to specially cater to disability needs).

·        The MA placed the appellant into class 2 for concentration, persistence and pace where examples are given of: ‘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 headaches’.

·        Paragraph 11.12 of the Guidelines state and Jenkins v Ambulance Service of New South Wales (2015) NSWS 633 determined that the descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’, so the MA’s class 2 findings were appropriate in accordance with his clinical examination.

·        The MA then considered the appellant’s voluntary work in his assessment of ‘employability’ where the appellant was placed in class 3 and examples are given of: ‘moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is
qualitatively different (eg less stressful)’ examples given for a class 4 rating are: ‘severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace reduced, attendance erratic’.
·        The appellant does not fall into class 4 rating for employability. The appellant’s driving role alone means the appellant is engaged in work that is equal to 18 hours per week. In combination with the other volunteer roles he undertakes, one could reasonably assume that the appellant is voluntarily working in excess of 20 hours per week.

·        The particular conduct that the MA was characterising was the ‘work-like activities’ page10 of the MAC) associated with the broader description of ‘volunteer work’. That is: he has obligations to perform the work and he performs the work as required on time. The MA has also observed that the appellant was able to perform Uber work but could not continue to do so because of the age of his vehicle and that he has applied for ‘many other positions but has been unsuccessful’.

·        The second ground of appeal places into issue the MA’s consideration of the appellant’s volunteer driving work in both the scales of ‘travel’ and ‘adaptation’. This ground of appeal raised by the appellant is identical to the first ground of appeal regarding the consideration of conduct in two scales. The respondent reiterates its position as discussed above on that point and submits that the second ground of appeal is not made out.

·        The MA placed the appellant into class 1 for ‘travel’ noting that the appellant ‘travels without restriction. He is a volunteer driver and will take his clients wherever they need to go. He finds driving enjoyable. If he had an appropriate vehicle, he would still be driving professionally for Uber’ (page 10 of the MAC).

·        In this regard the particular conduct that was being considered was the appellant’s ability to travel by driving his own vehicle.

·        If the higher class is to be considered, as submitted by the appellant, class 2 of Table 11.3 provides an example as follows: ‘mild impairment: can travel without support person, but only in familiar area such as local shops, visiting a neighbour’.

·        The appellant clearly does not fall into class 2 for travel. He is able to travel to unknown areas wherever his clients require. Therefore the MA made an appropriate assessment under Table 11.3 of the Guidelines.

·        The respondent repeats its submissions regarding the assessment of ‘employability’ as discussed above.

·        In relation to the appellant’s third and fourth grounds of appeal, that the MA should have considered the effects of the volunteer activities under the ‘social and recreational activities’ scale and not the ‘concentration’ or ‘adaptation’ scales; the respondent submits that the appellant has not pointed to an error that ought to be disturbed on appeal as set out in Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson). Ferguson requires a Medical Appeal panel (MAP) to be satisfied that the MA’s assessment was erroneous in one of the following ways: (a) if the categorisation was glaringly improbable; (b) if it could be demonstrated that the MA 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 paragraph 4, page 4 of the MAC, the MA recorded that the appellant is ‘socially isolated. He has contact with his daughters and grandchildren once every 2 to 3 weeks. They keep in touch by text message, and he may visit their home. He has drifted away from friends. He said that his friends were married and therefore have less time for him’.

·        The conduct for social and recreational activities turns on the type of conduct or activities that are performed in interaction with other people (Ballas). The MA has considered the appellant’s participation in social settings with his children and made an appropriate assessment.

·        In making his claim, the appellant relied on an Independent Medical Examiner (IME) report from psychiatrist Dr Michael Hong dated 10 March 2020 who placed the appellant into class 3 for social and recreational activities, consistent with the MAC.

·        The particular conduct within the appellant’s volunteer work might be considered relevant to the ‘social and recreational activities’ scale but this would only strengthen the conclusion reached by the MA.

·        The appellant has not made out that the MA erred in one of the ways identified in Ferguson. Ferguson also identified that a difference of opinion on the subject about which reasonable minds may differ will be insufficient to establish an error by the MA.

·        In response to the final ground of appeal, namely that the MA erred in considering the appellant’s Uber work, the respondent submits that it is relevant to an assessment of whether or not the appellant can retain employment. The appellant reported to the MA that he stopped his Uber work (driving) because the model of his car was too old for the standards required by Uber and if that had not been the case he would have remained driving professionally. It is clear that the appellant is able to drive to unfamiliar areas as he continues to do so when driving his clients with a disability. Therefore, the consideration of the appellant’s Uber work is relevant.

·        The appellant has failed to establish that the assessment of the MA was made on the basis of incorrect criteria and has failed to identify a demonstrable error on the face of the MAC. The respondent opposes the request for re-assessment as the appellant has not pointed to any error, or any error that has materially affected the outcome of the proceedings.

·        In the event that the Appeal proceeds to a MAP, the Appeal against the decision of the MA be dismissed.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
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] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘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.

The MAC

Under Present symptoms, the MA wrote:
“Mr Dogon suffers from low mood and reduced ability to experience positive emotion. He has subjective difficulties with concentration, attention and memory.

He is anxious and feels unsafe when out in public. He tends to self-isolate.

He is bothered by frequent intrusive thoughts, often about experiences during his time with the armed forces in South Africa, and an earlier motor vehicle accident.

He says he is now ‘haunted’ by these things.

He has not had recent thoughts of suicide. On one occasion, his daughter had the police and ambulance attend his home after he had expressed thoughts of suicide.

He often falls asleep in front of the television. However, he wakes about four times through the night and has frequent distressing dreams.

He eats regular meals, and his weight is stable at about 65 kg”.

On page 4 of the MAC under “social activities/ADL”, the AMS wrote:
“Mr Dogon separated from his wife about five years ago and now lives in a one-bedroom apartment at Bondi Junction. He has three adult daughters, all of whom live in Sydney, and has six grandchildren.
He keeps his apartment clean now, but his daughters had complained that he was not maintaining a state fit for his grandchildren to visit.
He showers about once in two days.
He eats three meals a day, and his weight is stable. He purchases pre-prepared frozen pack meals which he heats in his microwave.
He has volunteered to train guide dogs for the blind. He keeps a dog at his home, where he cares for it. He takes it for a 30 to 45-minute walk each day, as well as structured training.
He has another volunteer role in which he checks that a local commercial kitchen is maintaining kosher goods. He lights their ovens and checks their food. This activity takes about an hour a day.
On three days a week, he is a volunteer driver. He will spend five or six hours driving people to doctor's appointments or other obligations. His clients are often elderly or have significant disabilities.
He acts as a personal trainer for a young man who has epilepsy and perhaps some intellectual disability.
He is socially isolated. He has contact with his daughters and grandchildren once every 2 to 3 weeks. They keep in touch by text message, and he may visit their home. He has drifted away from friends. He said that his friends were married and therefore have less time for him.
He enjoys driving and does so in an unrestricted manner in his volunteer role. He also had been an Uber driver but had to stop because his vehicle was too old for the company. He enjoyed the social aspects of Uber driving.
His relationship with his wife failed before the subject accident, and his relationships with his daughters has been strained by the separation from his wife.
He has subjective difficulties with concentration and struggles with will [sic] reading. He tends to fall asleep in front of the television and doesn't watch series because he loses focus”.

On page 4 of the MAC, under “summary of injuries and diagnoses” the MA made a diagnosis of Post-traumatic stress disorder (PTSD) and a Major depressive disorder. The MA noted that the PTSD has arisen since the accident, and a pre-existing depression was aggravated.
In commenting on other medical opinion the MA wrote:
“Dr Hong assessed whole person impairment at 19% and deducted one-tenth for a pre-existing psychiatric disorder, arriving at a final 17% WPI. His assessment was done twelve months ago and accords with mine except on the domains of concentration, persistence and pace and employability.

Dr Hong stated, ‘Mr Dogon reported reduced concentration and cannot focus on books, television episodes and cannot watch an entire movie.’ Also, ‘Mr Dogon is severely dysfunctional and cannot work.’

I refer the reader to my PIRS table. Mr Dogon is engaged in voluntary activities, including dog training, checking commercial venues to ensure that they adhere to kosher standards, and acting as a driver. These activities require concentration, persistence and pace. They also represent work-like activities. On this basis, my opinion differs from that of Dr Hong. In part, the difference may arise because the assessments were done 12 months apart.”

The MA under “work history” also noted that after leaving the respondent, the appellant, for a time, drove for Uber, but they ceased his contract because his car was too old. He reported that in September 2019, the appellant had a work trial with Dulux but was not employed beyond the probationary period because he made too many mistakes.

The PIRS

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guidelines. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging 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 relates to a person who is totally impaired.
Chapter 11.12 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.”
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 [2015] NSWSC 633 (Jenkins).
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11. Chapter 11.11 provides that “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”.
In Ferguson , Campbell J was concerned a 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’.
In Glenn William Parker v Select Civil Pty Ltd [2018] NSWSC 140, 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]) .....”

Discussion

The appellant submitted that Ballas is authority for the proposition that the PIRS scales are “fixed and are treated by the guidelines as distinct from each other” (at [92]) and that each individual type of conduct relevant to a PIRS evaluation can only be used by the MA within the scale that best describes that conduct and is not to be used in more than one scale [83] to [101].
In Ballas the Court of Appeal considered whether the primary judge and the Delegate of the Registrar of the Workers Compensation Commission misconstrued the role of the Registrar and whether the Delegate’s decision contained jurisdictional error. In particular the Court of Appeal considered whether the Delegate failed to consider that the AMS took into account irrelevant considerations, failed to take into account relevant considerations, and erred in holding that determining which matters were relevant to the categories in the PIRS was a matter of discretion.
In Ballas Bell P and Payne JA said (Emmett JA concurring):
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to 'social and recreational activities' on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94.    Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, i.e. 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.
95.    In the present case, it was plainly ‘arguable’, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.
96.    Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.
97.    The aim of the Guidelines (which have been held to have the force or effect of delegated legislation: see Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]-[28]; Jenkins at [29]) would be subverted if the decision as to which scale to place certain conduct in for the purposes of assessing seriousness of impairment were left to the discretion of an AMS, as the Delegate indicated it could be. This would also have ramifications for the reviewability of decisions by an AMS. There is an important difference between a characterisation exercise and an exercise of discretion.
98.    We are unable to accept the primary judge’s conclusion in [60] of his judgment in relation to [25] of the Delegate’s reasons that:
‘While the paragraph may not be entirely elegant, it is sufficiently clear, in the context of the reasons as a whole, that the Delegate was here rejecting the argument that the activity in question could not fall within ‘social and recreational activity’ because that category or scale was not ‘directed to solitary activities that do not involve interactions with other people’, as Ms Ballas submitted in her submissions in support of the application to appeal. The Delegate addressed that argument. In doing so, she accepted that regular activities that required active involvement, even if they were undertaken individually and, in that sense, were ‘solitary’, could still be relevant to assessing the ‘social and recreational activities’ category of functional impairment, depending on the circumstances revealed by the history and clinical examination. In this way, she rejected Ms Ballas’s argument that such activities were not relevant the ‘social and recreational activities’ category.’
99. As we have already stated at [89] above, the Delegate’s decision at [25], in using ‘categories’ to refer to ‘classes’ rather than ‘scales’ in this paragraph, appeared to be responding to an argument that the AMS had assigned the wrong class (a ‘2’ rather than a ‘3’) to the scale of social and recreational activities. So much follows from the opening words of [25] of the Delegate’s decision. The primary judge’s conclusion in [60] of his Honour’s judgment set out at [98] above cannot be sustained. His Honour’s opening reference to the fact that this paragraph of the Delegate’s decision may not be ‘entirely elegant’ highlighted the confusion that was immanent in the Delegate’s reasons.
100. The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities. This scale, it was argued, was directed towards an assessment of an injured worker’s interaction with other people, and not a solitary activity such as gambling on poker machines. As was put in the submissions to the Delegate, when one examined the examples that were given for classes 1-5 in Table 11.2 of the Guidelines, all involved some degree of interaction with others, to a greater or lesser degree and on a sliding scale. It was plainly arguable in our opinion that that was the case, and this being so, the requisite level of satisfaction under s 327(4), as explained earlier in these reasons, should have been held to have been met.
101. For all of the above reasons, the Delegate erred and that the primary judge in turn erred in holding to the contrary. It follows that appeal ground 2 has been sustained. Subject to consideration of the Notice of Contention, the appeal should be allowed.”
The MA 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 MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above. The Appeal Panel accepted the findings made by the MA.

Ground 1 – volunteer work considered in both concentration, persistence and pace and employability

The appellant submitted that in this case when assessing the separate scales of concentration, persistence and pace and employability, the same conduct by the appellant in performing volunteer work was included for consideration. The appellant argued that the performance of this work should have been considered in only one scale, not two. The appellant, however, did not point to how the inclusion of the volunteer work in both scales actually affected the ratings given by the MA in scales of concentration, persistence and pace and employability.
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), makes significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In the PIRS Rating Form, the MA assessed the appellant as class 2 for concentration, persistence and pace and under “reason for decision” wrote: “He finds reading and watching shows on television challenging. However, his volunteer activities require engagement, concentration and persistence”.
The MA also noted in the MAC under “Findings on physical examination” that the appellant was able to give a comprehensive account of himself over an interview that lasted about 60 minutes.
Dr Michael Hong, in his report dated 20 March 2020, referred to a report by Associate Professor Stacey Jankelowitz, treating neurologist, dated 8 February 2019 in which the appellant scored 29/30 in the mini mental state examination. Dr Hong noted that Associate Professor Jankelowitz had assured the appellant that his brain was functioning well.
Dr Hong under “Cognition” noted that the appellant had reduced cognition and exhibited difficulties in sustaining his focus and was not certain of some of his history. Dr Hong assessed the appellant as class 3 for concentration, persistence and pace noting: “Mr Dogan reported reduced concentration and cannot focus on books, television episodes and cannot watch an entire movie”.
The examples under Table 11.6 for “employability” in the Guidelines are:
“Class 3: Moderate impairment: cannot work at all in the same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
In the PIRS Rating Form, the MA assessed the appellant in the employability scale as class 3 and wrote:
“He has not worked in any paid capacity since the motor vehicle accident. He volunteers training a guide dog for the blind, checking a commercial kitchen that it meets kosher standards, and driving elderly or disabled clients to appointments. These are work-like activities that he engages in or about 20 hours a week. He drove for Uber professionally, but they dropped him because his vehicle was too old and didn't meet the standards. He has applied for many other positions but has been unsuccessful.”
Dr Michael Hong, in his report dated 20 March 2020, noted that the appellant was unable to return to his pre-injury duties but he could probably drive for Uber Eats up to 20 hours a week but his attendance would be irregular. Dr Hong assessed the appellant as class 5 for employability noting: “Mr Dogan is severely dysfunctional and cannot work.” However, the Appeal Panel noted that Dr Hong’s assessment was undertaken on 10 March 2020, just over a year before the assessment made by the MA. Further, Dr Hong made no reference in his report to the appellant’s volunteer work although he did note that the appellant drove for Uber but stopped as the vehicle was older than 2009.
The Appeal Panel accepts that the MA referred to the volunteer work that the appellant performs in both the scale of concentration, persistence and pace and the scale of employability. However, the Appeal Panel agreed with the respondent that “volunteer work” is not a particular conduct but a description of several different roles that encompassed various different types of conduct.
The Appeal Panel considered that the MA’s references to volunteer work in the scale of concentration, persistence and pace and the scale of employability refer to different types of conduct within the broader concept of volunteer work.
In Table 11.8 under the scale of concentration, persistence and pace, the MA noted the appellant’s volunteer activities required different types of conduct rateable within engagement, concentration and persistence. In the MAC, the MA recorded that the relevant conduct with his different volunteer roles included structured training of guide dogs (which requires adherence to a training program akin to a course), lighting ovens and checking food at a commercial kitchen to a regulatory standard, and acting as a personal trainer for a young man with epilepsy and intellectual disability. On page 7 of the MAC, the MA after noting that the appellant was engaged in these varied voluntary activities, including dog training, checking commercial venues to ensure that they adhered to kosher standards and acting as a driver stated that “these activities require concentration, persistence and pace”.
The Appeal Panel considered that the MA was correct in stating that the appellant’s voluntary roles required types of particular conduct that might be impaired in concentration, persistence and pace.
In Table 11.8 under the scale of employability, the MA noted that the appellant volunteered training a guide dog for the blind, checked a commercial kitchen that it met kosher standards, and drove elderly or disabled clients to appointments. The MA considered that these are work-like activities that the appellant engaged in for about 20 hours a week.
There were some distinctions between the activities or conduct described in the PIRS scales for concentration, persistence and pace and for employability. The driving of elderly or disabled clients was only referred to in the scale for employability. The personal training of a young man with epilepsy and intellectual disability and the lighting of ovens at a commercial kitchen was only referred to under the scale for concentration, persistence and pace. The training of the guide dog and the checking of food to meet kosher standards were referred to in both the scales for concentration, persistence and pace and for employability.
The MA placed the appellant into class 2 for concentration, persistence and pace and the class 2 assessment was, in the Appeal Panel’s view, appropriate taking into account the findings on examination by the MA, the history obtained by the MA and other evidence in this matter. Further, even if the training of the guide dog and the checking of food to meet kosher standards in the volunteer work were not included as activities within the concentration, persistence and pace scale, the evidence available would not support that there was an error in the assessment of class 2 for concentration, persistence and pace. This evidence includes the personal training work, the lighting of ovens, the history obtained by the MA concerning reading and watching television, the ability to give a comprehensive account of himself to the MA in interview that lasted about 60 minutes, and the results of the mini mental state examination (a structured objective cognitive examination) in February 2019.
The MA considered the appellant’s voluntary work in his assessment of the scale of employability and placed the appellant in class 3. The examples in class 3 include the ability to perform less than 20 hours work a week in a different position, which requires less skill or is qualitatively different. The examples given for a class 4 rating include “cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace reduced, attendance erratic”.
The MA under “Social activities/ADL” noted that the appellant was a volunteer driver on three days a week and would spend five or six hours driving elderly or disabled people to doctor's appointments or other obligations. This volunteer work as a driver means that the appellant is engaged for 15-18 hours a week as a driver. The Appeal Panel considered that when this part of his voluntary work is taken into account with his other voluntary work roles, he would be voluntarily working in excess of 20 hours per week.

The Appeal Panel was satisfied that the rating of the appellant as class 3 for employability was not in error. The particular conduct that the MA was characterising was the ‘work-like activities’ in Table 11.8 of the MAC associated with the broader description of ‘volunteer work’. The appellant in this volunteer work had obligations to perform the work and to perform it on time particularly in relation to driving elderly or disabled people to doctor's appointments and other obligations, and coordinate all the different aspects of this conduct within these roles.
The Appeal Panel considered that the history obtained by the MA was consistent with class 3 rating for employability. Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was appropriate for the MA on the evidence to make an assessment of class 3 for employability.
The Appeal Panel does not accept that when assessing the separate scales of concentration, persistence and pace and employability, the same conduct by the appellant in performing volunteer work was included by the MA for consideration. However, if we are wrong about this and certain aspects of this conduct were in fact considered in two scales, and not in only one scale, the ratings would have been the same as those assessed by the MA in the scales of concentration, persistence and pace and employability .

Ground 2 - volunteer work considered in both travel and employability

The appellant also argued that when assessing the two scales of travel and employability, the same conduct by the appellant in performing volunteer driving work was included for consideration as part of both and should instead have been considered in only one scale, not two. Again, the appellant did not point to how the inclusion of the volunteer work in both scales actually affected the ratings given by the MA in the scales of travel and employability.
The examples under Table 11.3 for “travel” in the Guidelines are:
“Class 1:No deficit, or minor deficit attributable to the normal variation in the general population. Can travel to new environments without supervision.
Class 2: mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
In the PIRS Rating Form, the MA assessed the appellant as class 1 for travel and wrote:
“He travels without restriction. He is a volunteer driver and will take his clients were ever they need to go. He finds driving enjoyable. If he had an appropriate vehicle, he would still be driving professionally for Uber”.
Dr Michael Hong, the appellant’s qualified expert, assessed the appellant as class 1 for travel noting : “Mr Dogan is anxious on certain road conditions (e.g. wet day) and can travel to unfamiliar places unaccompanied”.
The Appeal Panel accepted that the volunteer driving of clients was included in the descriptors in both the scale of travel and the scale of employability. However, the Appeal Panel considered that the MA’s references to volunteer work in the scale for travel and the scale of employability referred to different types of conduct within the broader concept of volunteer work.
In relation to the scale of travel, the particular conduct that was being considered was the appellant’s ability to travel by driving his own vehicle rather than other conduct within his role as a volunteer driver. In relation to the scale of employability, the particular conduct that was being considered was the appellant’s voluntary work as a driver of elderly or disabled clients to doctors’ appointments or other obligations, which requires other conduct that could be impaired e.g. the coordination, timeliness, interpersonal interaction and organisation required for such a role whether remunerated or voluntary. This role is no different to many actual jobs in the disability, aged and health care sectors.
In any event, even if the volunteer work was not included as a descriptor in the assessment for travel, the evidence clearly would not support an assessment of class 2 for travel. The fact that the appellant travels without restriction would result in a class 1 assessment for travel. Further, Dr Hong assessed the appellant as class 1 for travel.
The Appeal Panel concluded that the MA made an appropriate assessment under Table 11.3 of the Guidelines of class 1 for travel.
In relation to the assessment of employability, the Appeal Panel for the reasons given above considered that the history obtained by the MA was consistent with class 3 rating for employability. Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was appropriate for the MA on the evidence to make an assessment of class 3 for employability

Ground 3 – volunteer activities better described under the scale of social and recreational activities

Further, the appellant submitted that it was a ‘Ballas’ error to consider, per se, the effect of the volunteer activities under the concentration, persistence and pace scale, as those activities were better described and more appropriately considered under the scale of social and recreational activities. Likewise, the same error was made in considering the volunteer activities under the employability scale.
The appellant did not point to how the inclusion of the volunteer work in the scale of social and recreational activities actually affected the ratings given by the MA.
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 without needing a support person, but does not become actively involved (eg. dancing, cheering favourite team).
Class 3: Rarely goes 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”.
In the PIRS Rating Form, the MA assessed the appellant as class 3 for social and recreational activities and wrote:
“He remains isolated, with few recreational activities. He had been an active golfer and ultramarathon runner but has abandoned these activities. He rarely sees friends. He catches up with his daughters and grandchildren, sometimes visiting them at their homes, every 2 to 3 weeks”.
Dr Michael Hong assessed the appellant as class 3 for social and recreational activities noting : “All former sports and recreational activities have ceased. Mr Dogon's socialization has deteriorated since his psychological injury”.
As set out above, 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), makes significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In the PIRS Rating Form, the MA assessed the appellant as class 2 for concentration, persistence and pace and under “reason for decision“ wrote: “He finds reading and watching shows on television challenging. However, his volunteer activities require engagement, concentration and persistence”.
Dr Hong assessed the appellant as class 3 for concentration, persistence and pace noting: “Mr Dogan reported reduced concentration and cannot focus on books, television episodes and cannot watch an entire movie”.
The MA considered that it was appropriate to consider the volunteer activities were under the concentration, persistence and pace scale and not under the scale of social and recreational activities. As noted above, Dr Hong made no reference to the volunteer activities.
In paragraph 4, page 4 of the MAC, the MA recorded that the appellant is ‘socially isolated. He has contact with his daughters and grandchildren once every 2 to 3 weeks. They keep in touch by text message, and he may visit their home. He has drifted away from friends. He said that his friends were married and therefore have less time for him’.
The Appeal Panel accepts that the conduct for social and recreational activities turns on the type of conduct or activities that are performed in interaction with other people (Ballas). The MA considered the appellant’s participation in social settings with his children and made an appropriate assessment. Dr Hong’s assessment of class 3 for social and recreational activities was consistent with the MAC.
The Appeal Panel considered that the appellant has not pointed to an error that ought to be disturbed on appeal as set out in Ferguson. Ferguson requires a MAP to be satisfied that the MA’s assessment was erroneous in one of the following ways: (a) if the categorisation was glaringly improbable; (b) if it could be demonstrated that the MA 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. The categorisation of the volunteer activities under the concentration, persistence and pace scale rather than under the scale of social and recreational activities was not glaringly improbable. The appellant did not demonstrate that the MA was unaware of significant factual matters. No clear misunderstanding or unsupportable reasoning process were made out. Further, a difference of opinion on the subject about which reasonable minds may differ will be insufficient to establish an error by the MA (Ferguson).
The second part of Ground 3 related to the submission that it was a “Ballas” error to consider the effect of the volunteer activities under the employability scale as those activities were better described and more appropriately considered under the scale of social and recreational activities.
The examples in the Guidelines under Table 11.2 for “Social and recreational activities” and the examples under Table 11.6 for “employability” were set out above.
The Appeal Panel accepts that the conduct for social and recreational activities turns on the type of conduct or activities that are performed in interaction with other people (Ballas). The MA considered the appellant’s participation in social settings with his children and made an appropriate assessment. Dr Hong’s assessment of class 3 for social and recreational activities was consistent with the MAC. While the volunteer activities include an element of interaction with other people, employability usually involves interaction with other people as well as the performance of actual work activities during a certain number of hours each week. The Appeal Panel considered that the volunteer activities in this case were more appropriately considered under the scale of employability as they involved conduct better described under that scale. Volunteer driving here involved work activities performed regularly without remuneration, and not activities which would more aptly be described as either social or recreational.
The Appeal Panel also considered that the appellant has not pointed to an error that ought to be disturbed on appeal in accordance with Ferguson. The categorisation of the volunteer activities under the concentration, persistence and pace scale rather than under the scale of social and recreational activities was not glaringly improbable. The appellant did not demonstrate that the MA was unaware of significant factual matters. No clear misunderstanding or unsupportable reasoning process was made out. Further, a difference of opinion on the subject about which reasonable minds may differ will be insufficient to establish an error by the MA (Ferguson).

Ground 4 – Uber driving not relevant to employability scale

The appellant submitted that it was an error to find that "Uber dropped him because his vehicle was too old", as his Uber driving took place more than 12 months before the MA examination, and it was not clear how it was relevant or what significance it received. The appellant argued that the “Uber driving” finding did not belong in the employability scale.
The appellant told the MA that he stopped his Uber work because the model of his car was too old for the standards required by Uber and if that had not been the case he would have remained driving professionally. Dr Vickery, in his report dated 18 November 2019, noted that the appellant had been working as an Uber driver from October 2018. Dr Hong in his report dated 10 March 2020 noted that the appellant said that his vehicle was older than 2009 and therefore “he cannot be an Uber driver anymore”. Dr Hong reported that the appellant said that he wanted to do some other work such as Uber eats.
The history of the appellant’s work with Uber was relevant as it described employment that the appellant undertook following the injury. The work with Uber demonstrated that he was able to drive to unfamiliar areas as he continues to do so in his volunteer work when he drives his clients to appointments. Therefore, the consideration of the appellant’s Uber work was relevant as also was the reason why he no longer performs that work, that is, the age of his vehicle. Dr Hong, in his report dated 20 March 2020, noted that the appellant was unable to return to his pre-injury duties but he could probably drive for Uber eats up to 20 hours a week but his attendance would be irregular.
The Appeal Panel considered that the reference to Uber driving did belong in the employability scale.
The Appeal Panel also considered that in arguing this ground the appellant has not pointed to an error that ought to be disturbed on appeal as set out in Ferguson. The categorisation of the uber driving under employability scale was not glaringly improbable. The appellant did not demonstrate that the MA was unaware of significant factual matters. No clear misunderstanding or unsupportable reasoning process was made out. Further, a difference of opinion on the subject about which reasonable minds may differ will be insufficient to establish an error by the MA (Ferguson).
In summary, the appellant has failed to establish that the assessment of the MA was made on the basis of incorrect criteria and has failed to identify a demonstrable error on the face of the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 March 2021 by the AMS should be confirmed

[2021] NSWPICMP 107

30 June 2021