Dowd v Realfield Holdings Pty Ltd trading as Kitchen Warehouse

DETERMINATION OF APPEAL PANEL
CITATION:	Dowd v Realfield Holdings Pty Ltd trading as Kitchen Warehouse [2023] NSWPICMP 26
APPELLANT:	Karen Dowd
RESPONDENT:	Realfield Holdings Pty Ltd trading as Kitchen Warehouse
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	30 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Worker suffering primary psychological injury; appealed against the classification of the Medical Assessor in the psychiatric impairment rating scale (PIRS) categories of social and recreational activities, travel and social functioning; Held – no error demonstrated; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 November 2022 Karen Dowd (the appellant/Mrs Dowd) made an application to appeal against a medical assessment (the appeal) made by Professor Nicholas Glozier, Medical Assessor (MA) and issued on 28 October 2022.
The respondent to the appeal is Realfield Holdings Pty Ltd trading as Kitchen Warehouse (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and
· the Medical Assessment Certificate (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 ground(s) 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

Mrs Dowd sustained a primary psychological injury in the course of her employment as a sales assistant with the respondent as a result of the treatment she received while working for the respondent between 2 September 2019 and 9 January 2020.
The matter was referred to Medical Assessor Nicholas Glozier on 3 May 2022 for assessment of whole person impairment (WPI) of Mrs Dowd’s psychological disorder attributable to the injury sustained between 2 September 2019 and 9 January 2020.
The MA examined Mrs Dowd on 19 October 2022 and in his MAC dated 28 October 2022 assessed 9% WPI in respect of the psychological disorder as a result of the injury deemed to have occurred on 30 November 2019.

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.
Mrs Dowd requested that she 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 Mrs Dowd 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.

The MAC

The parts of the MAC given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions, include the following:
(a)    the MA’s assessment under the psychiatric impairment rating scale (PIRS) at class 2 for social and recreational activities, travel and social functioning were challenged and Mrs Dowd contended that each of those categories should be class 3;
(b)    the MA assessed Mrs Dowd at class 2 for social and recreational activities, which differed from Dr Wayne Mason, who assessed Mrs Dowd as class 3 in his report of 24 November 2021;
(c)    the MA failed to take into account factors highly relevant to Mrs Dowd’s involvement in social and recreational activities, which were recorded in the history obtained by the MA on pages 3 and 4 of the MAC, in particular, the panic attacks that she experienced. The MA reported that Mrs Dowd related numerous times where she had had panic attacks in crowded areas such as shopping centres, planes and railway stations and “as such avoids some of these when she can although continues to have to go to many for her household chores”. The MA expanded on the problem with panic attacks at page 3 of the MAC.   On page 4 of the MAC, the MA noted that Mrs Dowd will “not go to a cinema because of the number of people or any business event and finds herself jumpy’ and edgy’ in a restaurant and in fact will only sit outside, often feeling trapped”;
(d)    these restrictions must have some relevance to the category of social and recreational activities given that attending restaurants and cinemas fit within what is typically regarded as “social and recreational activities”;
(e)    the descriptors provided in Table 11.2 of the Guidelines provides examples of activities in the classes. However, cl 11.12 of the Guidelines states that the examples of activities described in the various tables under the PIRS “are examples only”. In other words, the descriptors of the suggested activities for each of the classes are not exhaustive nor proscriptive. This means the fact that Mrs Dowd does not always go out without a support person does not mean that she fails to fit into class 3. The listed activities are intended as no more than a guide;
(f)    the fact that Mrs Dowd frequently experienced panic attacks when performing social and recreational activities such as attending the local shops, cinemas or railway stations and catching public transport in central Sydney was far more consistent with a moderate impairment of the category of social and recreational activities rather than a mild impairment. The MA in the PIRS Rating Form did not comment on the difficulties Mrs Dowd experienced with panic attacks on a regular basis when attending crowded environments and these panic attacks should be measured in some concrete way;
(g)    the MA made an error on page 8 of the MAC when he said that Mrs Dowd said that she regularly saw a couple of friends for coffees. The correct situation was detailed at paragraph 9(f) of Mrs Dowd’s statement dated 16 February 2022 in that she only saw one friend at a time and this was infrequent. The MA made a material error here in summarising the effect of Mrs Dowd’s statement because on page 6 he said that he “included Mrs Dowd’s two statements into the history above”;
(h)    if the panic attacks are not relevant to social and recreational activities, they would be relevant to the assessment of one or both of the PIRS categories of “travel” and/or “social functioning”. The fact that panic attacks were not taken into account in Tables 11.2, 11.3 or 11.4 did not mean that it cannot or should not be taken into account. The MA recorded that Mrs Dowd has experienced panic attacks when on public transport, planes or railway stations yet this was not mentioned in the context of the assessment of the appropriate class for travel;
(i)    the fact that Mrs Dowd can sometimes travel without a support person does not prevent her from satisfying class 3 based on her overall presentation (including panic attacks). Regardless of whether Mrs Dowd’s panic attacks and tendency to be jumpy and edgy are taken into account at Tables 11.2, 11.3 or 11.4, the severity of the symptoms she experienced were sufficient to elevate one or more of the categories of social and recreational activities, travel and/or social functioning from class 2 to class 3. For example, the MA on page 4 noted that when flying to Perth in 2021 she felt “significant arousal” on the plane which was very unpleasant. On page 3, the MA mentioned a panic attack at Castle Hill shops was accompanied by a full range of panic phenomena which later left her feeling drained with a headache;
(j)    Mrs Dowd’s significant difficulties with panic attacks were reinforced by her statement dated 16 February 2022. She detailed recent instances of panic attacks between March 2021 and January 2022 in the settings of a local restaurant, shopping centre and travelling to Perth on a plane. She stated that it often took her three days to recover from these panic attacks. Although the MA said that he incorporated the contents of her statement in his history, he failed to mention the incidents at paragraphs 10-14 and 19-20 in her statement or comment on the duration of the attacks other than to say it took her “some time to recover” at her father’s property after she flew to Perth;
(k)    overall, the frequent panic attacks, agoraphobic symptoms and hyperstartled when in external areas (see page 4 of the MAC under “Findings on Medical State Examination”) must be measured in some meaningful way under one or more of the PIRS categories. The MA just stuck to the specific activities outlined in tables 11.2, 11.3 and 11.4 without taking into account the full gamut of the symptoms;
(l)    the MA repeatedly commented on the frequency of panic attacks in the MAC yet failed to expose his path of reasoning as to why these inhibitions on her performing these activities should not impact on the PIRS class rating under social and recreational activities, travel and/or social functioning. The MA’s class ratings were “glaringly improbable” (Ferguson v State of NSW [2017] NSWSC 887) because they failed to take into account a critical element of Mrs Dowd’s psychiatric presentation which the MA himself acknowledged. This was not merely a case of difference of opinion with Dr Mason on the appropriate class for “social and recreational activities” but it was a jurisdictional error as the MA failed to explain why the prevalence of frequent panic attacks was not relevant to the assessment of which class was appropriate at Tables 11.2, 11.3 and 11.4. Apart from the duration of the panic attacks themselves, the MA failed to take into account the detrimental impact on Mrs Dowd engaging in a range of daily activities for fear of again experiencing a panic attack, and
(m)     a further medical assessment is requested because the MA’s categorisation of at least three of the relevant PIRS categories is at issue and it is necessary to get an updated version from Mrs Dowd on how each of the categories of social and recreational activities, travel and social functioning are affected on an updated basis. The further assessment is necessary to clarify a number of aspects of the history taken by the MA, for example, attendance at a coffee shop with friends. It was not clear if the MA obtained his own independent history or he misinterpreted what Mrs Dowd said in her statement at 9(f).
The respondent’s submissions include the following:
(a)    the MA has not made a demonstrable error and has not based his assessment on the application of incorrect criteria;
(b)    social and recreational activities - the appellant noted that the conclusion of the MA was different to that of Mrs Dowd’s own qualified specialist, Dr Wayne Mason. The authority is clear that while a MA may have regard to other medical opinions, he is not bound by them and is entitled to rely on his own assessment (Pitsonis v Registrar of WCC & Anor (2008) NSWCA 88). Merely because
Dr Mason came to a different conclusion than the MA, did not mean that the MA was bound to follow him;
(c)    the appellant also extracted certain parts of the MA’s summary of the appellant’s ‘Social activities/ADL’ which run from page 3 – 4 of the MAC. The respondent referred to the entirety of the paragraph selected. Whilst the MA noted that
Mrs Dowd has panic attacks whilst in public areas and did not want to go to the cinemas, it was also recorded that she flew to Perth via airplane. In doing so she was exposed to the commutes to and from her abode and the airports, she also would have experienced the very public forum of the domestic terminals contained within each city, along with the actual flight itself which would have contained numerous passengers in a small space. Although Mrs Dowd stated that she struggled with such things at paragraph 15 of her statement dated
16 February 2022, she nonetheless was able to commute and fraternise with family in another state;
(d)    the MA also noted that Mrs Dowd would go to “a coffee shop to meet a couple of her old friends but although she can drive herself there to meet them, she will only sit outside, not being able to sit inside, eg at The Coffee Club on Nepean River”. Mrs Dowd, therefore, seemed to be able to socialise with friends and commute on her own but chooses to sit outside and not inside;
(e)    this conclusion is supported by the respondent’s own qualified specialist,
Dr Yajuvendra Bisht, who, in his report dated 1 February 2022, noted as follows: “…Ms Dowd reported to me, ‘Sometimes I catch up with friends for short periods. I struggle with that. Sometimes I say at the last minute that I can't go’”. Dr Bisht noted that Mrs Dowd had travelled to Perth in March this year and travelled in her caravan around Christmas last year. He noted that she told him, "We went away in a caravan after Christmas, but I kept to myself". She said that she went to the beach on only some occasions. Dr Bisht concluded that Mrs Dowd caught up with more than one friend, and in addition, she has undertaken substantial recreational activities such as travelling interstate. He disagreed with a rating of class 3 in that category. I am of the opinion, that a rating of class 2 would be more appropriate for social and recreational activities;
(f)    whilst Mrs Dowd needed to be escorted by her husband to certain places, she also could travel alone to catch up with friends. She also similarly was able to fly interstate and have holidays on the central coast. It is wholly within the authority of the MA to determine the weight given to relevant evidence when making an assessment (Allianz Australia Insurance Ltd v Cervantes). The MA gave the appropriate weight to the various competing facts about Mrs Dowd’s social and recreational activities and it was open for the MA to come to the conclusion and correctly find the degree of impairment was a class 2.
(g)    travel & social functioning - the appellant also argued that MA incorrectly assessed her as class 2, when he should have assessed her as class 3 for ‘one or both of the PIRS categories of “travel” and/or “social functioning”’, due to the fact that Mrs Dowd experienced panic attacks in certain social situations;
(h)    with regards to travel, the Guidelines at Table 11.3 PIRS – travel, provide mere examples but the difference between class 2 and class 3 impairment was based on whether the assessed individual can travel with or without a support person, and whether they can travel into new areas or not;
(i)    Mrs Dowd clearly can travel on her own to visit friends at a café. At paragraph 14 of Mrs Dowd’s signed statement, dated 16 February 2022, she stated that she was able to travel to Woolworths on her own and go shopping. Although
Mrs Dowd does all of these things whilst in discomfort, she ultimately can do these things. The classes contained within Table 11.3 inevitably turn on whether a worker can or cannot go to the local shops, without or without support. Here Mrs Dowd can go to similar locations with no companion, and she was able to travel interstate, therefore showing she did not belong in a class 3 category of impairment for travel;
(j)    with regards to the social functioning, the MA was entitled to assess Mrs Dowd as she presented on the day of assessment (per cl 1.6 of the NSW Guidelines) via the means he deems clinically appropriate and whilst always staying within the Guidelines. Based upon these findings the MA was able to come to the appropriate conclusions as it pertained to Mrs Dowd’s permanent impairment;
(k)    there has been no ‘glaring improbable’ assessment of Mrs Dowd’s PIRS categories when one considers her panic attacks, because, as mentioned above, the MA was meant to assess Mrs Dowd as she presented on the day of her assessment. The MA met with an individual who was able to go to cafés with friends, travel to Perth to visit family, and to the central coast for a holiday, and thus concluded that these fostered the relationships she already had;
(l)    a class 2 impairment of social functioning requires ‘Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships’. Whereas a class 3 necessitates ‘Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children’. By her own evidence Mrs Dowd’s relations with her immediate family could hardly be described as ‘severely strained’ (see paragraph 9(a) of the appellant’s signed statement dated 16 February 2022), Therefore, she was accurately placed in class 2 by the MA on the date the worker presented to him as she clearly could not meet the criteria detailed in class 3, and
(m)     the MAC dated 28 October 2022 did not contain any demonstrable error and was based on the correct criteria and, therefore, should be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
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:
“She describes being safe with a reasonable mood when at home where she has few demands. However she feels unsafe out of the home, aroused, anxious with a general wariness of others. I could not identify formal hypervigilance but rather she has a sense that she is generally unsafe with people. This is not because they are physically trying to harm her and it was difficult to understand what the basis of this fear is as no-one has tried to harm her. She may occasionally see people who remind her of work and cannot go to the shopping centre where she used to work. She goes to bed around 10:30-11pm, being able to go to sleep within 30-60 minutes the majority of the nights of the week. A couple of nights a week she wakes with ‘not nice dreams,’ will be aroused but can go back to sleep after about 30 minutes. She is woken with her alarm around 7am-7:30am and as such gains a normal but broken sleep duration. She however feels quite anergic and tired throughout the day. As a result she find that she has to push herself to do things although can complete all of her chores at a slower pace. She has some panics when out, the last being a few weeks ago at Castle Hill shops where she described a full range of panic phenomena. This subsided after 30 minutes when she removed herself from the crowded area to a quiet area, put her headphones in and she later felt drained with a headache. She does not experience such heightened arousal or panics at home and they only occur in external situations where there are crowds of people, and she feels how she might be judged and fears further panics. When aroused in such external areas she can also be disorientated and this led to two recent panic attacks whilst trying to take public transport into central Sydney which she now avoids, having had, and appears to have had, these panics entrench her avoidant behaviour. She also is not jumpy or aroused in a car, only in external settings with others.”
On page 4 of the MAC under “social activities/ADL”, the MA wrote:
“Prior to joining Kitchen Warehouse she was not working, looking after her boys (she has four of them) and for many years home had been very ‘full-on but I loved it.’ Her husband Scott, an IT specialist at Western Sydney Airport, helped out with some chores, occasional cooking and sports at the weekend but otherwise she did all of the household work. She met friends for lunches, visited people and very occasionally went out on a bike although noted it ‘still looked like new.’ She volunteered at sports canteen and with food parcels in the bushfires. Although a Christian, she was not a churchgoer but would read the Bible regularly. She would very occasionally gone to concerts, e.g. a Jimmy Barnes one many years ago. She described no problems driving a car, public transport or using planes. She rarely used IT, followed Facebook but did not post much and did little on home computing. Currently she continues to live with Scott who is very supportive and two of her boys, Leighton (in his early 20s) and Harrison (aged 15) who is at school. When she wakes she is still somewhat tired but said she gets Harrison ready, makes his packed lunches and then takes him to school. When she returns she showers most days without prompting, may do her skin care and told me the specific brand and shops she goes to for that, cleans the kitchen and has breakfast. She said she watches a bit of TV and then throughout the day does all of the home chores this is done more slowly because she has to push herself and it requires greater effort, particularly as she has less motivation. She eats lunch variably. She does most of the cooking during the week but Scott tends to help at the weekends with barbeques and other cooking. She shops regularly because she does not like being in shopping centres or shops for long periods of time, generally only getting a basket at a time, going in and out quickly. At times she says she may require Harrison to come with her after school because she feels safer. She says she will click and collect pet and other food if necessary. She related numerous times where she had had panic attacks in crowded areas such as shopping centres, planes and railway stations and as such avoids some of these when she can although continues to have to go to many for her household chores. She prefers to go with people if possible and describes in detail a very recent one with her husband and son in Castle Hill shops where she had to withdraw for some time as above. At home she says she is generally okay, feels safe and does not have significant psychological symptoms. She flew to Perth last year with her son and described significant arousal on the plane and that it was very unpleasant. She was able to rest at her father’s large property when she got there although took some time to recover. She enjoys little now, living ‘day to day.’ She will go to a coffee shop to meet a couple of her old friends but although she can drive herself there to meet them, she will only sit outside, not being able to sit inside, e.g. at The Coffee Club on Nepean River. She will not go to a cinema because of the number of people or any busy event and finds herself ‘jumpy and edgy’ in a restaurant and in fact will only sit outside, often feeling trapped. Scott has always done the family budgeting and there is no change to her limited IT use following Facebook, Googling, doing online shopping. She has little motivation to read a Bible now and says she has not picked up a book for a couple of years. Over the last summer holidays she went with two of her boys and Scott up to the Central Coast in their caravan. She did not socialise much there but would sit, relax, walk and go to the beach.”
Under “Findings on mental state examination” the MA wrote:
“Ms Dowd was casually-dressed, but not wearing make-up. She was teary and anxious throughout the 75-minute interview. She showed reasonable focus and concentration, and provided a very detailed high-context history throughout although said that by the end her ‘brain was rattled’ because ‘constantly rehashing’ these events re-traumatise her and she wants to stop talking about them. Her mood is stable when at home but she is anxious and scared when out and at times can be teary. She described reduced enjoyment, significant anergia, decreased motivation, low self-esteem/self-worth and frequent panic attacks, agoraphobic symptoms, hyperstartle when in external areas where there are lots of people and inability to escape, and some avoidance of her work but no specific intrusive re-experiencing phenomena except when triggered. She describes reduced motivation to do cognitive activities and being limited after some time, as well as finding that if she does read she may lose focus after a few pages.”
On page 4 of the MAC, under “summary” the MA wrote:
“In the context of increasing levels of arousal and anxiety following repeated harassing and bullying behaviours, Ms Dowd had a panic attack at work. She settled into a chronic anxiety and avoidant pattern which meets the criteria for Agoraphobia with Panic Attacks with significant symptoms, fear of further panic attacks and these occurring generally in the classic settings for Agoraphobia. Although she has some symptoms of PTSD, she does not describe the events in the shop at the level of a Criterion A in her statement at that time or today and I am not convinced she has all of the criteria in the four domains required for this diagnosis. She would also meet the diagnostic criteria for a comorbid Major Depressive Disorder.”
In commenting on other medical opinion, the MA included the following:
“I included Ms Dowd’s two statements into the history above. The clinical notes and medical reports from Ms Fraser corroborate her ongoing anxiety symptoms and difficulties engaging with the more overt exposure therapy.
Psychological treatment review by Thomas O’Neill, clinical psychologist, dated
11 November 2021. Mr O’Neill noted at the time there had been little improvement despite extensive psychological treatment. He noted that IMEs and her treating
psychologists suggested that maximum medical improvement had been reached, indicative that further treatment would not result in further gains. He made a recommendation of a few further treatments to consolidate these gains. I would concur with this view.
There are notes from her GP which have been used in the history above. Report by Wayne Mason, consultant psychiatrist, for the applicant dated 24 November 2021. |
Dr Mason elicits a similar history although a reduced and lesser social activity than I elicited today, quite possibly because he assessed her during the COVID lockdown period. He too noted that she was fully oriented in time, place and person, showed no organic psychopathology but had a very tearful, agitated presentation similar to today. I concur with his diagnoses of Agoraphobia, Panic Disorder, but her not meeting the criteria for Post-Traumatic Stress Disorder and that she is also likely to meet the criteria for a Major Depressive Disorder. I disagree with only one of the PIRS classes, that of Social and Recreational Activity. She reported greater social activity today than in his report, being able to go and see a couple of friends on a regular, if not frequent, basis outside for coffees, down the river, being able to go outside with her husband and on holiday to the Central Coast earlier this year. As such she does not always require someone to leave home with her, will meet friends at places although remains limited and quite withdrawn and anxious when there, a mild impairment. As with Dr Mason she reported difficulty focusing, persisting and being unable to read or recall books although was relatively unimpaired in the assessment. Probably on balance she is moderately impaired in this domain on the assessment today.
Reports by Dr Bisht, consultant psychiatrist, for the insurers. Dr Bisht provides three reports from May 2020 to February 2022. He provided an initial diagnosis of Adjustment Disorder with Mixed Anxiety and Depression, later describing little improvement and he focused more on the depressive symptoms rather than the Agoraphobia and Panic for his diagnosis. In September 2021 he opined that she had a whole person impairment of 7%. He made an unjustifiable deduction for non-work related stressors. I disagree with him in one category: that of Concentration, Persistence and Pace where, for the reasons above, I am persuaded she has a moderate impairment as assessed today.”

Discussion

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 detailed history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

PIRS categories

The appellant alleged error in respect of the assessment of the PIRS categories of social and recreational activities, travel and social functioning.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J was concerned a case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist 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 Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66.   In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70.    To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71.    The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”

Social and recreational activities

Mrs Dowd submitted that the MA failed to take into account factors highly relevant to
Mrs Dowd’s involvement in social and recreational activities, which were recorded in the history obtained by the MA, and, in particular, the panic attacks experienced in crowded areas which resulted in avoidant behaviour. Mrs Dowd argued that the fact that she frequently experiences panic attacks when performing social and recreational activities such as attending the local shops, cinemas or railway stations and catching public transport in central Sydney was far more consistent with a moderate impairment of the category of social and recreational activities rather than a mild impairment. Further, Mrs Dowd submitted that the MA in the PIRS Rating Form did not comment on the difficulties Mrs Dowd experienced with panic attacks on a regular basis when attending crowded environments and these panic attacks should be measured in some concrete way.
The examples under Table 11.2 for “social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The descriptors provided in Table 11.2 of the Guidelines provides examples of activities in the classes. However, cl 11.12 of the Guidelines states that the examples of activities described in the various tables under the PIRS “are examples only”. The Appeal Panel accepted that the descriptors of the suggested activities for each of the classes are not exhaustive nor proscriptive.
Clause 11.11 of the Guidelines classifies social and recreational activities as an activity of daily living.
The MA assessed Mrs Dowd as class 2 for social and recreational activities. In the PIRS Rating Form, the MA wrote:
“Social and recreational activities - Class 2
She reported greater social activity today than in his report, being able to go and see a couple of friends on a regular, if not frequent, basis outside for coffees, down the river, being able to go outside with her husband and on holiday to the Central Coast earlier this year. As such she does not always require someone to leave home with her, will meet friends at places although remains limited and quite withdrawn and anxious when there.”
In the MAC itself the MA provided considerable details of the panic attacks experienced by Mrs Dowd. In particular, under present symptoms, the MA noted:
“She has some panics when out, the last being a few weeks ago at Castle Hill shops where she described a full range of panic phenomena. This subsided after 30 minutes when she removed herself from the crowded area to a quiet area, put her headphones in and she later felt drained with a headache. She does not experience such heightened arousal or panics at home and they only occur in external situations where there are crowds of people, and she feels how she might be judged and fears further panics. When aroused in such external areas she can also be disorientated and this led to two recent panic attacks whilst trying to take public transport into central Sydney which she now avoids, having had, and appears to have had, these panics entrench her avoidant behaviour. She also is not jumpy or aroused in a car, only in external settings with others.
…
Under ‘social activities/ADL’,
She related numerous times where she had had panic attacks in crowded areas such as shopping centres, planes and railway stations and as such avoids some of these when she can although continues to have to go to many for her household chores. She prefers to go with people if possible and describes in detail a very recent one with her husband and son in Castle Hill shops where she had to withdraw for some time as above... She flew to Perth last year with her son and described significant arousal on the plane and that it was very unpleasant. She was able to rest at her father’s large property when she got there although took some time to recover. She enjoys little now, living ‘day to day.’ She will go to a coffee shop to meet a couple of her old friends but although she can drive herself there to meet them, she will only sit outside, not being able to sit inside, e.g. at The Coffee Club on Nepean River. She will not go to a cinema because of the number of people or any busy event and finds herself ‘jumpy and edgy’ in a restaurant and in fact will only sit outside, often feeling trapped.”
Under ‘Summary’ the MA wrote:
“In the context of increasing levels of arousal and anxiety following repeated harassing and bullying behaviours, Ms Dowd had a panic attack at work. She settled into a chronic anxiety and avoidant pattern which meets the criteria for Agoraphobia with Panic Attacks with significant symptoms, fear of further panic attacks and these occurring generally in the classic settings for Agoraphobia…She would also meet the diagnostic criteria for a comorbid Major Depressive Disorder.”
Dr Mason, in his report dated 24 November 2021, assessed class 3 for social and recreational activities. He provided the following reasons:
“Social and recreational activities: Ms Dowd stated she sees only one friend on very rare occasions. She had recently been invited to a birthday in an outdoor venue but could not attend because of anxiety about the crowd. Her husband wants to have a Christmas celebration at home this year but she does not think she could deal with relatives in the house. She has not been out to entertainment venues. She is moderately impaired.”

The Appeal Panel noted that Dr Mason referred to anxiety, but made no reference to panic attacks in his “reasons for decision” in the PIRS category of social and recreational activities in his report of 24 November 2021.
Dr Bisht, in his report dated 8 December 2021, assessed class 2 for social and recreational activities noting:
“Karen only occasionally attends social gatherings. Even when she goes she does not actively participate. She is able to attend activities without a support person. She told me – ‘Sometimes I catch up with friends for short periods. I struggle with that. Sometimes I say at the last minute that I can’t go.’
She has travelled to Perth in March this year and travelled in her caravan around Christmas last year.
She told me – ‘We went away in a caravan after Christmas, but I kept to myself’. She said that she went to the beach on only some occasions.”
Dr Bisht, in a report dated 1 February 2022, noted that Dr Mason in relation to the category of social and recreational activities had noted that Mrs Dowd “stated she sees only one friend on very rare occasions”. Dr Bisht noted that Mrs Dowd had reported to him “Sometimes I catch up with friends for short periods. I struggle with that. Sometimes I say at the last minute that I can’t go”. Dr Bisht noted that Mrs Dowd had travelled to Perth in March that year and travelled in her caravan around Christmas last year. Dr Bisht reported that she said: “We went away in a caravan after Christmas, but I kept to myself”. He noted that she said that she went to the beach on only some occasions. Dr Bisht wrote:
“Therefore, she catches up with more than one friend, and in addition, she has undertaken substantial recreational activities such as travelling interstate.
Therefore I disagree with a rating of class 3 in that category.
I am of the opinion that a rating of class 2 would be more appropriate.”
Dr Bisht made no reference to panic attacks in his “reasons for decision” in the PIRS category of social and recreational activities in his report of 8 December 2021.
The MA noted Mrs Dowd had improved in this category since the assessment by Dr Mason. The MA reported that Dr Mason elicited a similar history although a reduced and lesser social activity than the MA elicited, quite possibly because he assessed her during the COVID lockdown period. The MA wrote:
“I disagree with only one of the PIRS classes, that of Social and Recreational Activity. She reported greater social activity today than in his report, being able to go and see a couple of
friends on a regular, if not frequent, basis outside for coffees, down the river, being
able to go outside with her husband and on holiday to the Central Coast earlier this year.”
The Appeal Panel accepted that Mrs Dowd has panic attacks, however, she had still been able to persist with various activities. Panic attacks are a symptom and not an impairment.
The Appeal Panel do not accept that the MA was obliged to mention every possible matter recorded in the body of the MAC in the reasons set out in Table 11.8 as that would involve unnecessary repetition. The Appeal Panel considered that Table 11.8 must be read in conjunction with the MAC as a whole. The Appeal Panel was satisfied that the MA took a detailed history concerning the panic attacks Mrs Dowd experienced and took into account those panic attacks and their impact on her activities in the various PIRS’s when making the assessment. The MA described the activities that Mrs Dowd could still do, despite the panic attacks, and based his assessment on those activities.
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 open to the MA on the evidence to make an assessment of class 2 for social and recreational activities and that such an assessment was not glaringly improbable considering the evidence available and the history taken during the assessment by the MA. The Appeal Panel was satisfied that the rating of class 2 for social and recreational activities was not in error and any deficit in this category was a mild impairment.
The Appeal Panel noted that Mrs Dowd also submitted that the MA made an error on page 8 of the MAC when he said that Mrs Dowd said that she regularly saw a couple of friends for coffees and that the correct situation was detailed at paragraph 9(f) of Mrs Dowd’s statement dated 16 February 2022 in that she only saw one friend at a time and this was infrequent. The appellant argued that the MA made a material error here in summarising the effect of Mrs Dowd’s statement because on page 6 he said that he “included Mrs Dowd’s two statements into the history above”.
At 9(f) of her statement dated 16 February 2022, Mrs Dowd wrote:
“I do on occasions go out for a coffee with 1-2 close friends (but 1 at a time) in the nearby area but this is only infrequent. When I go out with these friends I am invariably on edge all the time. I can easily experience a panic attack in this situation and then I have to sit down outside the cafe on the river and try to calm down. This can even happen if l am meeting my husband (Scott). I try to turn my back towards people so I do not have to see their faces. The problem with going out in social settings is that I become very easily overwhelmed and then I become confused and teary. A recent example is when I met with a close friend at a local cafe. On arrival my heart began to race and I started to panic. I then raced outside waiting for my friend to organise a seat outside so I could have a coffee with her. Even outside I felt anxious and on edge. My friend asked if I wanted to go home as she realised how uncomfortable I was.”
The statement was dated 16 February 2022, some eight months before the examination by the MA. The history obtained by the MA was very similar to the history obtained by Dr Bisht. The MA considered Mrs Dowd’s functioning in the category of social and recreational activities had improved since her examination by Dr Mason on 23 November 2021. It was likely that some of that improvement had occurred since Mrs Dowd gave her statement on
16 February 2022.
The Appeal Panel rejected the submission that the MA erred in summarising the effect of
Mrs Dowd’s statement because on page 6 he said that he “included Mrs Dowd’s two statements into the history above”. The evidence given in Mrs Dowd’s two statements was evidence of past events and her current symptoms as at the date the statement was given. It was not evidence of Mrs Dowd’s current symptoms as at the date of the assessment by the MA.

Travel

Mrs Dowd submitted that the class 2 rating for the category of travel was a demonstrable error and this category should be assessed at class 3 or greater. Mrs Dowd noted that the MA recorded that she had experienced panic attacks when on public transport, planes or railway stations yet this was not mentioned in the context of the assessment of the appropriate class for travel. She argued that the fact she could sometimes travel without a support person does not prevent her from satisfying class 3 based on her overall presentation (including panic attacks) and the severity of her symptoms were sufficient to elevate the assessment for travel from class 2 to class 3.
The examples under Table 11. 3 for “travel” in the Guidelines are:
“Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
Clause 11.11 of the Guidelines classifies travel as an activity of daily living.
The MA assessed Mrs Dowd as class 2 for travel. In the PIRS Rating Form, the MA wrote:
“Travel - Class 2
She drives to the local shops and other local places, but when going to Perth, on holiday or travelling further, requires people to go with her and even than can be
highly aroused in situations where there are lots of people.”
Dr Mason, in his report dated 24 November 2021, assessed class 2 for travel noting:
“Travel: Ms Dowd stated she is only able to drive locally and on roads with which she is well acquainted. The biggest fear is of having a panic attack. She stated she travelled to the city with her husband and had a panic attack as they went through Parramatta. She stated crowds make her feel claustrophobic like she is in that "black room" again. She is mildly impaired.”
Dr Bisht, in his report dated 27 September 2021, assessed class 2 for travel. Under the heading “travel” he wrote:
“Karen is able to travel to unfamiliar places on with people and is able to travel to familiar places on her own.
She travelled to Perth in March this year, with her 13 -year-old son.”
The MA noted that Mrs Dowd was able to drive by herself, but only to local places. The MA noted that Mrs Dowd required people to go with her when she went to Perth or on holidays and even then could be highly aroused in situations where there were a lot of people. He prefers his wife to drive, or to be accompanied by his wife whilst driving. Dr Mason and
Dr Bisht also assessed Mrs Dowd as class 2 for travel.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel agreed with the MA that an assessment of class 2 for travel was correct. The Appeal Panel was satisfied that the rating of class 2 for travel was not in error.

Social functioning

Mrs Dowd submitted that the MA made a demonstrable error when he assessed social functioning as class 2 as he had recorded that she experienced panic attacks and the severity of the symptoms she experienced were sufficient to elevate assessment for social functioning from class 2 to class 3.
The examples under Table 11. 4 for “social functioning” in the Guidelines are:
“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.”
The MA assessed Mrs Dowd as class 2 for social functioning. In the PIRS Rating Form, the MA wrote:
“Social functioning - Class 2
She remains very well supported by her husband, boys and her father, but has lost a few friends and there can at times be tension due to her anxiety.”
Dr Mason, in his report dated 24 November 2021, assessed class 2 for social functioning and reported:
“Social functioning: She stated her relationship with her husband is not in danger of breaking up but she has no interest in their intimate life. She gets along well with her sons. She is mildly impaired.”
Dr Bisht, in his report dated 27 September 2021, assessed class 2 for social functioning. Under the heading “social functioning” he wrote:
“Karen still has a good relationship overall with her family, although she is distant from them.
There haven’t been any periods of violence or separation.”
The Appeal Panel noted that not only the MA but both Dr Mason and Dr Bisht assessed class 2 for social functioning.
The MA took a very detailed history. The MA noted Mrs Dowd remained well supported by her husband, boys and her father but had lost a few friends and there could be tension at times due to her anxiety.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel agreed with the MA that an assessment of class 2 for social functioning was correct. The Appeal Panel was satisfied that the rating of class 2 for social functioning was not in error.
The appellant submitted that although the MA said that he incorporated the contents of her statement in his history, he failed to mention the incidents at paragraphs 10-14 and 19-20 in her statement or comment on the duration of the attacks other than to say it took her “some time to recover” at her father’s property after she flew to Perth.
Paragraphs 10-14 of Mrs Dowd’s statement read as follows:
“10. In around November 2021 I tried to go to dinner with my four sons and my husband at a local steakhouse in Penrith on the Nepean River. This is a very familiar place for me and it was the first dinner we had attempted as a family for some time. Unfortunately I had another panic attack in that my heart was racing and I began to shake and to cry. I had to take time to calm down and walk away from the restaurant for some time. The problem Is that I simply cannot cope with noise and with crowds of people. Eventually the family was able to have dinner at the steakhouse but only dining outside and it was not an unenjoyable experience for anyone.
11. I also went shopping just before Christmas at the Myer store at Penrith Plaza. I went there with my eldest son (Cameron). In order to cope with the crowd I wore headphones to distract me from the stress I was experiencing. Exposure to crowds inevitably triggers my agitation. Prior to working at Kitchen Warehouse I could visit 20 shopping stores one 1 day for hours on end without having any problems. I used to love Christmas shopping. Now even the thought of Christmas shopping causes me significant anxiety.
12. Another recent episode which triggered a heightening in my anxiety was when Tamara from EML rang me just before Christmas. When she rang I felt significantly elevated anxiety in that my heart was racing and I became teary and very depressed. It took me about three days to recover from this.
13. We had visitors over to my home on Saturday evening being 22 January 2022. These Visitors were Scott’s brother and his wife. I have known both of them for more than 20 Years and I am very familiar with them. Nevertheless I became anxious when they Came over to visit. I explained to Scott that I did not want them to come over because I Really struggle to talk to people. It was Scott who cooked the dinner for his brother and his sister-in-law.
14. On Sunday 23 January 2022 I went to the Woolworths supermarket at Penrith to buy Some fruit, maple syrup and cream for breakfast for the family. I was able to drive there myself because it was nearby. I went into the supermarket with a shopping list but I then panicked and froze and I struggled to breathe. This is typical of what happens when I experience a panic attack. I was able to grab some of the shopping items which I needed and I paid for them and then I went straight back to my car.”
Paragraphs 19-20 read as follows:
“19. In December 2021 I visited the Sheridan's Outlet in Penrith which is a store with which I am well familiar. When I entered the store there were 2 female customers who were criticising the Sheridan's staff. I overheard this discussion, my body started to shake and then I froze. I remembered the bullying treatment I had received at Kitchen Warehouse from Jodie and from Josh. When I heard these discussions I ran out of the store. One of the Sheridan staff ran after me and said words to the following effect: ‘Are you ok?’.
20. I then simply burst into tears and was unable to respond. Even thinking about going back to work at the moment scares me immensely.”
The Appeal Panel was satisfied that the MA had read Mrs Dowd’s statements even though parts of the statements were not referred in the MAC. Harrison J in Prasad v Workers Compensation Commission [2010] NSWSC 418, said:
“On the other hand, there is support for the proposition that not every matter or thing that is germane or critical to an administrative decision must, or even can, be expected to find a place in the expressed reasons of the tribunal. Nor should too close an examination of those reasons be undertaken in the hope of locating putative error. This might be thought to be all the more forceful in the scheme of legislation such as the Act where the question for consideration has been referred to a specialist tribunal with knowledge and experience of medical matters, which one might expect will relevantly have been brought to account in its deliberations and ultimate consideration of the degree of whole person impairment.”
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social and recreational activities, travel and social functioning.
In conclusion, the Appeal Panel did not consider that there was a demonstrable error in the assessment of the MA. Further, the Appeal Panel was satisfied that the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 October 2022 by the MA should be confirmed.

[2023] NSWPICMP 26

30 January 2023