Employers Mutual Management Limited v Saunders

DETERMINATION OF APPEAL PANEL
CITATION:	Employers Mutual Management Limited v Saunders [2024] NSWPICMP 168
APPELLANT:	Employers Mutual Management Limited
RESPONDENT:	Mhairu Saunders
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in three respects; firstly, in his assessment with respect to the psychiatric impairment rating scale (PIRS) categories of social and recreational activities; secondly, in his assessment in the category of concentration, persistence, and pace; thirdly, in assigning only a one tenth deduction pursuant to section 323; Panel found no errors by the MA with respect to the PIRS categories; no submissions made by the appellant regarding section 323; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 December 2023 Employers Mutual Management Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 November 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
This matter was assessed under the Table of Disabilities.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in three respects: firstly, in his assessment with respect to the Psychiatric Impairment Rating Scale (PIRS) categories of social and recreational activities; secondly, in his assessment in the category of concentration, persistence, and pace: and thirdly, in assigning only a one tenth deduction pursuant to s 323 of the 1998 Act.
In reply, Mhairu Saunders (the respondent) submits that the MA’s reasoning and discussion is comprehensive, clearly thought out and carefully explained, the assessments made were open to him on the evidence, and that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a date of injury of 6 August 2020.
The respondent had been previously assessed on 29 August 2022. At that time, her condition was not deemed to have reached maximum medical improvement.
At his examination on 30 October 2023, the MA noted as follows:
“Ms Saunders was previously assessed on 29 August 2022. At that time, her condition was not deemed to have reached maximum medical improvement, as she reported some recent improvement following the commencement of an antidepressant medication, sertraline, and she had recently commenced consultations with a psychiatrist, Dr Rajneesh Singh. She was also prescribed a benzodiazepine sedative-hypnotic medication, lorazepam, at this stage.
Ms Saunders advised she had not read the August 2022 report, and thus, did not make any comment about it.
Ms Saunders advised she had not had another independent medical examination since the last one conducted for the Personal Injury Commission in August 2022. She said she believed she had had four independent medical examinations in total, including the August 2022 assessment, and the present one.
Ms Saunders has continued to take sertraline since August 2022. She advised the dose has been increased from 100 mg daily to 200 mg daily over this time, but she was not able to recall when in the last 14 months this occurred, commenting, ‘It’s been a while’. In late 2022, Ms Saunders advised, ‘My partner, in cahoots with my doctor, bought me a surprise cruise at last Christmas.’
In January 2023, Ms Saunders and her partner went on the cruise, departing from Sydney for New Zealand. She recounted, ‘I hated every minute of it… all up we were gone for two weeks’. She explained the cruise took 12 days, during which time, ‘I stayed in the cabin most of the time’. She explained, ‘Firstly it was a surprise, and I was not in the right frame of mind to go somewhere with people’. She advised she still feels anxious when thinking about it. When asked if she reacted positively to any part of the holiday, she thought for several moments and replied, ‘Milford Sound, it was alright - it was pretty’. When asked how she found the passage of the Tasman Sea, which is commonly reported as being rough, she replied, ‘The actual sailing wasn't too bad’, restating her view that it was interacting with people that made the cruise difficult for her. After the cruise ended, Ms Saunders and her partner spent two days in Auckland, before flying back to Sydney.
At some stage in early 2023, Ms Saunders stated she commenced regular consultations with an exercise physiologist. These have continued on a weekly basis. She explained the exercise physiologist visits her apartment, and takes her through exercises, as well as prescribing exercises and activity for her to do between sessions. She opined that this has been a beneficial intervention. She has consistently attended these, only cancelling in the event of an infection or clash with a medical appointment. She denied ever cancelling these due to psychiatric symptoms. She stated she has been adherent to the program, completing exercises three times a week.
When seen in August 2022, Ms Saunders was consulting with a psychologist, Ms Zena Boulos. She stated these consultations and [sic] somewhat unexpectedly, ‘She just went AWOL’ at some stage in early 2023. She added, ‘She just stopped calling. I tried calling her.’
Ms Saunders was then referred to another psychologist, Ms ‘Nazeer Hazim’ (spelling unclear). She began consulting Ms Hazim in April 2023. As noted below, Ms Saunders has never actually met Ms Hazim in person or seen her through videoconferencing, as all consultations have been by phone. When asked how she felt about this mode of consultation, Ms Saunders replied, ‘I've never really thought about it’, but expressed the view that she felt that the intervention had been helpful. When asked if Ms Saunders’ general practitioner or psychiatrist were aware that all consultations have been by phone only, she expressed the view that they were not aware of it.
At some stage around mid-2023, Ms Saunders was prescribed another psychotropic medication, chlorpromazine (Largactil). She was unsure of the exact date in which this was prescribed, commenting, ‘It's been a few months, because of my sleep… I take that and then start falling asleep on the lounge’. She explained that prior to commencing chlorpromazine 25 mg nightly, she would wake consistently through the night, and when she woke up, ‘I would walk around, whatever’, having difficulty falling back to sleep. She observed, ‘Now I stay in bed for a few hours’.
In June 2023, Ms Saunders went to a cafe near her residence, on the advice of her psychologist. She went alone, and overheard some other customers talking about work, and became very anxious, though not to the point where a panic attack developed. She has avoided going to cafes since then.
Also in June 2023, Ms Saunders caught a train from Liverpool to her father's place in Eastwood. She explained this involved catching a train to Strathfield and changing there. She stated when she arrived at Strathfield she could feel that a panic attack was coming on. She explained she got on the next train and undertook her regular breathing exercises, and did not have a panic attack. She was able to arrive at her destination and spent time with a father, and caught two trains on the way home commenting, ‘It was alright’, without any significant anxiety.
Around June 2023, Ms Saunders joined a yoga class on a subscription basis. She commented, ‘I joined yoga and paid for three classes and went to one’. She added, ‘Then I said, I wouldn't mind going swimming’, and explained that she joined a local pool with her partner in August 2023. She estimated she had gone swimming three times, noting her partner goes every week, on multiple occasions.
When initially assessed in August 2022, Ms Saunders advised she took lorazepam was 1 mg on an as needed basis, four times a week. She explained that since this time, both of her doctors had been increasingly reluctant to prescribe lorazepam, and as a result, she had reduced the dose of this. She estimated she typically took 0.5 mg, sometimes 1mg, and tried to limit this to twice a week.
Ms Saunders advised that she had not been prescribed any new psychotropic medications other than chlorpromazine since August 2022.
In August 2023, Ms Saunders and her partner travelled to Blackheath to celebrate her birthday, staying in an Airbnb for two nights. She explained that her children had purchased a high tea for her at the Hydro Majestic Hotel at Medlow Bath. They purchased this some time ago, and Ms Saunders took the opportunity to have this. She recalled, ‘That was nice’ adding, ‘We used to go up to the mountains all the time, a long time ago.’
When asked about her impressions of progress since August 2022, Ms Saunders replied, ‘I'd say I have slightly improved’. She elaborated, ‘Some days that I don't have symptoms… I have days where I'm calm… probably three days a week maybe or four days, maybe three. The day will just go and I think about things’. That said, Ms Saunders did report ongoing symptoms of anxiety on other days, and also believed that her mental state was somewhat fragile.
Ms Saunders reported no major life events affecting her or those close to her since August 2022. She reported no periods of separation or relationship disharmony in that time. She reported no family conflicts since August 2022.”
After setting out details of the appellant’s present treatment regime, the MA then noted present symptoms as follows:
“When asked to describe her mood Ms Saunders replied, ‘Knowing that I had this meeting, I was anxious, I was sick’. She rated her mood as 5/10 on a 10-point scale, where 0/10 represents a very depressed mood, and 10/10 represents a very cheerful mood. When asked to clarify her mood she replied, ‘I don't feel depressed, but I feel anxious’. She reported no diurnal mood variation or suicidal ideation. When asked to describe her sense of humour Ms Saunders replied, ‘Hmmmm… yeah’.
Ms Saunders stated she sometimes enjoys her food, but added, ‘Just lately my appetite has been a bit off’. She stated her weight was stable, and estimated this was around 88 kg. She reported persistent anergia: ‘I'm tired all the time’. She stated she went to bed around 21:00, and fell asleep fairly promptly, waking up after about two hours, but able to remain in bed and fall back asleep, until she woke again in the middle of the night, and then rose around 04:30. As noted, she advised this represented an improvement in her amount of sleep. Ms Saunders reported occasional dreams: ‘If I have a little sleep of the daytime, I'll have a nightmare’, stating nightmares sometimes involved her grandchildren. She explained she did not experience nightmares at night.
Ms Saunders reported episodic anxiety, and this could be triggered by people talking about work, or change to her routine. As noted earlier, she reported a near panic attack in June 2023. She also reported situational anxiety in relation to public transport, but also reported reduction thereof after brief exposure (i.e. after 2 train journeys, her anxiety fell).”
The MA then set out details of Ms Saunders’ general health before turning to consider Ms Saunders activities of daily living, and said:
“Ms Saunders lives in a rental apartment in Liverpool with her partner of five years; they have not changed residence since August 2022. Her sole source of income is a workers’ compensation payment; she reported no secondary income. She has two adult children. Her partner continues to work in the construction industry.
Ms Saunders advised she has no financial liabilities such as loans or mortgages. Ms Saunders described a positive relationship with her partner. She explained they go out once a week for a meal, to either a nearby Vietnamese restaurant, or a pub bistro. She said that she does not go out for meals with her own family. She added that she and her partner spend time with his family: ‘We go and see his mum every Sunday. She lives in Camden’. She estimated they spend ‘probably a couple of hours’ visiting her.
Ms Saunders stated she is in contact with her own family members, stating her father typically calls her once a week, and they speak for about 10 minutes. She speaks to her elder daughter ‘every day, probably five times a day… but that could be over nothing’, stating they she will often initiate these conversations. She explained they catch up in person every three months or so. Ms Saunders advised she spoke to her younger daughter once a week, and she catches up with her less frequently. She explained she last saw this daughter on the weekend prior to the assessment, to attend her grandson's birthday party. Ms Saunders advised she spends Christmas with her children and partner and when asked about plans for Christmas 2023 she replied, ‘That's something we're talking about; I think we're going to go to my eldest daughter's place’. Ms Saunders reported limited contact with her friends stating that she last spoke to her close female friend in June 2023.
Ms Saunders advised she bathed or showered every day adding, ‘I brush my teeth every day… sometimes I forget. I probably wash my hair once a week.’ She gets her hair cut every couple of months, last doing so in August 2023. She typically changed her clothes each day, occasionally wearing some clothes twice in a week. Ms Saunders reported she did not require prompting to attend to activities of daily living.
Ms Saunders states she eats three times per day. She commented, ‘I have jelly for breakfast’ and a light snack for lunch. She stated she and her partner share cooking responsibilities for dinner. She added, ‘We take turns in cooking of a nighttime’. When asked about the types of dishes she may cook, Ms Saunders replied, ‘Slow cook casserole, spaghetti, shepherd's pie, chicken and salad, chicken and vegetables… I used to cook a lot more, like a Tuscan chicken or a stroganoff.’
Around the home, Ms Saunders reported undertaking laundry and sharing cleaning activities as well as sharing responsibility for cooking dinner. She added, ‘I actually vacuum every day’. When asked why she does so she replied, ’I don't know, I just do it. It's just my thing.’
Ms Saunders has access to a partner's car but does not possess her own vehicle. She stated she does not typically drive a car alone, but drives her partner's car with him as a passenger once a month. By way of example she stated she might drive between Liverpool and Camden or vice versa, a drive of some 30 to 40 minutes. Ms Saunders stated she can catch a bus to her GP, and in June 2023 caught two trains to her father's place in Eastwood, and two trains back. As noted, Ms Saunders has travelled on a cruise ship to New Zealand, and also spent time in New Zealand within the last 12 months, as well as traveling to the Blue Mountains.
Ms Saunders advised she has a Facebook account, which she states she accesses ‘maybe twice a week’. When asked about her engagement with this platform, she replied, ‘I watch [videos of] a lady called Chantelle Patu… she tries clothes on’, and estimated these videos last about 10 minutes. She advised she does not post or comment on other people's posts. She advised she can access the internet to watch the news. She said she also looks at retail sites to get Christmas present ideas. Sometimes she is able to conduct purchases online, or uses the internet to learn about potential purchases. She stated she manages her own income and when asked about bill payments for the household she replied, ‘We both do.’
Ms Saunders advised she is able to go shopping alone, or with her partner. She commented, ‘Sometimes I go shopping by myself and I'll get him to pick me up’. By way of example, she said she may catch the bus to see her GP, then go shopping. She added, ‘I do it as quickly as possible’, stating this may take around 30 minutes. Alternatively, she reports going shopping with her partner, and stated she could spend ‘probably an hour.’
Ms Saunders advised she is able to watch TV and movies at home. She commented, ‘I watch the news. I watched The Block. I like watching 60 Minutes’. She estimated she watches movies 3 times a week. She stated the last movie she watched was called ‘Champions’, which she stated was about special needs children playing on a basketball team. She commented that she typically watches a movie over a period of three hours, taking a break every 30 minutes, before returning to it. She said that she used to do ‘mindfulness painting but I can't concentrate, and my hand shakes’. She said she last attempted to do this 3 months prior to the assessment, and added, ‘I used to do this all the time,”
Findings on mental state examination were reported as follows:
“Ms Saunders presented as a Caucasian woman of stated age, with long grey-blonde hair, wearing a black top. She made eye contact via the video conferencing facility, and presented as pleasant, polite, and interactive throughout, readily answering all questions. No psychomotor agitation or retardation was noted.
Ms Saunders was alert and oriented throughout the assessment, with no drowsiness or fluctuation in level of consciousness observed. She was able to maintain attention throughout the evaluation, and did not appear distracted throughout.
Ms Saunder’s speech was spontaneous, fluent, soft to normal in volume, and normal in rate. There were occasional pauses prior to and during response to questions. There was no persistent increased latency of response. Her affect was restricted in range, and while she retained the ability to smile on occasion, she was also tearful on several occasions. Her affect was of normal intensity, and was congruent with subject matter. She described her mood as predominantly anxious, rather than depressed. Objectively, her mood was anxious, and she was not objectively elevated, irritable or apathetic. Her thoughtform was logical and sequential, with no formal thought disorder. No delusional thought content was expressed or observed at any stage. She denied suicidal ideation.”

The MA summarised the injuries and diagnoses as follows:
“Ms Saunders is a 59 year old woman who ceased working as a claims advisor in late 2020; she has not worked in any capacity since that time.
Ms Saunders was assessed in August 2022, and reported some improvement in her symptoms, having been recently commenced treatment with a new psychiatrist, and recently prescribed a new antidepressant, sertraline. She was deemed not to have reached maximum medical improvement at that stage.
Since August 2022, Ms Saunders' has received more comprehensive psychiatric and related treatment. Her antidepressant medication has been titrated up to a high dose, and she has been prescribed a sedative antipsychotic medication for insomnia. From a nonpharmacological perspective, she has commenced regular sessions with an exercise physiologist, and has commenced regular individual psychological consultations with a new psychologist. There has been some improvement in psychiatric symptoms, but limited functional improvement compared with 14 months earlier.
Ms Saunders' psychiatric symptoms are consistent with Major Depressive Disorder with anxious distress.
Ms Saunders' history was consistent with findings on examination.”
The MA assessed 17% WPI.
He then turned to consider the other medical evidence and documents he had. He commenced by setting out a summary of reports, starting with a report of Dr Graham George, consultant psychiatrist, dated 17 December 2020, and continuing with various reports of Dr Smith.
Of relevance to the issues in dispute are the two most recent reports as follows:
“Independent medical examination report by Dr David Kumagaya, consultant psychiatrist dated 16 December 2021:
Dr Kumagaya provided a diagnosis of Major Depressive Disorder with anxious distress… He opined that ‘further treatment would be of benefit to Ms Saunders’. In contrast to Dr Smith's opinion, Dr Kumagaya opined that in the absence of improvement in mental state and functioning, ‘it is unlikely that Ms Saunders will have future capacity for work.’
Dr Kumagaya expressed the view that Ms Saunders had ‘reached maximum medical improvement’, on the basis that her condition is ‘unlikely to change substantially in the next year, with or without medical treatment.’ This may seem at odds with his earlier statement that further treatment would be of benefit, however, the use of the adverb ‘substantially’ differentiates the two statements. It should be noted that at the time of this examination, Ms Saunders was not receiving evidence-based pharmacological treatment for the diagnosis of Major Depressive Disorder, and in fact, had been prescribed only one antidepressant medication. It is thus unclear as to why the potential impact of alternative antidepressant medications was not considered in determining whether Ms Saunders condition was stable, given that she had demonstrated a willingness to consider alternative treatments.
Dr Kumagaya recorded a whole person impairment score of 19% in Ms Saunders' case.
Dr Kumagaya's scores on the PIRS are identical to those of the current evaluation in 5 of 6 domains. In the current assessment, Ms Saunders was rated a class 1 in Self-care and personal hygiene, based on her description of activities of daily living, personal hygiene, meals and cooking, and home-based chores and tasks.
Independent medical examination by Dr Graham George, consultant psychiatrist, dated 22 February 2022:
At the time of Dr George's re-examination of Ms Saunders, she was receiving fortnightly psychological consultations and had been prescribed a new antidepressant medication, agomelatine, at a dose of 25 mg nightly, two weeks prior to the evaluation. He also noted that her alcohol consumption had increased to the point where she estimated it at between 2 - 4 glasses of wine or scotch per night. His diagnosis concurred with that of Dr Kumagaya, Major Depression with anxious distress. Dr George did not consider Ms Saunders to have reached maximum medical improvement, based on the recency with which she had commenced the new antidepressant, and that it was thus ‘too early to make an assessment of WPI.’
Based on Ms Saunders' description of symptoms and function in August 2022, and during the present evaluation, her condition has reached maximum medical improvement.”
Turning firstly to the category of social and recreational activities, the appellant submits as follows:
(a)    the MA erred in overlooking material evidence before him and the history taken on examination that was contrary to a Class 3 impairment. Had the doctor properly reviewed the material and considered the history taken on examination, a Class 3 category would not have been open to him.
(b)    The MA failed to give any, or any proper, regard to evidence such as the following:
(i)in June 2023, Ms Saunders went to a café near her residence, on the advice of her psychologist. She went alone…
(ii)Also in June 2023, Ms Saunders caught a train from Liverpool to her father's place in Eastwood… She was able to arrive at her destination and spent time with a father, and caught two trains on the way home commenting, “It was alright”, without any significant anxiety.
(iii)Around June 2023, Ms Saunders joined a yoga class on a subscription basis. She commented, “I joined yoga and paid for three classes and went to one.”
(iv)Ms Saunders advised she is able to go shopping alone.
(v)She joined a local pool with her partner in August 2023. She estimated she had gone swimming three times.
(vi)In August 2023, Ms Saunders and her partner travelled to Blackheath to celebrate her birthday, staying in an Airbnb for two nights. She explained that her children had purchased a high tea for her at the Hydro Majestic Hotel at Medlow Bath. They purchased this some time ago, and Ms Saunders took the opportunity to have this. She recalled, “That was nice.”
(c)    The MA did not give proper regard to his examination on the day, as well as the other information before him.
(d)    The MA’s assessment of Class 3 for social and recreational activities is unsupported by the evidence and inconsistent with his own examination findings.
(e)    The MA reported that the worker has been able to go out without needing a support person and had participated in various recreational activities.
(f)    The worker has participated in yoga, swimming, and high tea with her family. Further, she has demonstrated the ability to go out independently when going to a café by herself, going to yoga by herself, and travelling to her father’s residence by herself.
(g)    Based on the available evidence and the proper interpretation of the worker’s social and recreational activities, the MA ought to have assessed Class 2.

Discussion

At the outset, we note that Table 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking into account the claimant’s relevant medical history and all available and medical information …”.
In addition, it is perhaps timely at this point to set out the task of an Appeal Panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[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’ (our emphasis).
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
[25] The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
As the respondent points out, the history recorded by the MA is with respect to an intervening period of some 15 months between the MA’s examinations in August 2022 and October 2023, and adds:
“The appellant seizes on the following examples of activities in the 15 months as recorded by the MA to suggest error and the application of an incorrect class within the category:
⋅a solitary, unsuccessful, attempt to go alone to a café 4 months before the MA examination that led to the worker not going attempting to go again.
⋅One yoga class in June 2023 where a three -class subscription was purchased some 4 months before the MA examination.
⋅Three visits to a pool since August 2023 in circumstances where the worker’s partner ‘goes all the time.’
⋅a solitary effort to use public transport 2 months prior to the MA’s examination that triggered a panic attack.
⋅a solitary accompanied journey to Blackheath in circumstances where such trips were common.”
We agree with the respondent’s submissions for the following reasons.
The descriptor for a Class 2 reads: “Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).”
For a Class 3 it reads: “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.”
To begin with, the appellant seems to be “cherry-picking” isolated incidents of various social activities performed by the respondent to justify its submission that a Class 2 should have been assigned.
On the information given by Ms Saunders to the MA, a Class 3 seems to us to be entirely appropriate.
As we said earlier, “the descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
The fact that Ms Saunders does not refer specifically to a “support person” does not mean that she does not fit appropriately into a Class 3 rating.
Assessing the respondent on two occasions gave the MA ample opportunity to make a close examination and assessment of Ms Saunders.
In our view, he explained his reasons adequately.
There is nothing in his assessment in this category that we would regard as “glaringly improbable” nor has the MA demonstrated that he “was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out.”
For these reasons, we do not accept that he erred in his assessment in this category.
Turning next to the category of concentration, persistence, and pace, (cpp), the appellant makes the following submissions:
(a)    the MA reported that the worker can focus on watching television shows like The Block and 60 Minutes, and watched movies three times a week, over a period of three hours.
(b)    There are multiple Personal Injury Commission decisions that have found that watching a film and following a storyline is intellectually demanding to some degree where serials, documentaries, and movies are a mode of television that does require some intellectual rigour.
(c)    Given the content of the television shows, particularly 60 Minutes, that the worker watches, she displays the ability to focus on an intellectually demanding task for more than 30 minutes, consistent with Class 2.
(d)    There is a clear ability to demonstrate adequate cpp.
(e)    The MA’s assessment of Class 3 for ccp is contrary to his own examination findings.
(f)    The respondent’s ability to watch television shows, including 60 Minutes and The Block, demonstrates a lengthy duration of sustaining concentration, and the MA has failed to give regard to both the duration of the respondent worker’s attention, and to what the respondent worker was watching. The sheer number of hours she reported doing so was such that Class 3 impairment was not open to the MA.
(g)    The MA did not give proper regard to his examination on the day.
(h)    In the PIRS rating form, the MA reported the respondent worker is able to follow moderately complex recipes, and was able to maintain concentration for the entirety of the 75 minute assessment.
(i)    The MA erred in interpreting the term “intellectually demanding”. The content the worker watches is an intellectually demanding task and therefore the MA has incorrectly categorised the respondent worker as Class 3.
The descriptor for a Class 2 rating reads: “Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
For a Class 3 it reads:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
Again, we note that the descriptors are examples only.
In assessing a Class 3, the MA said:
“Ms Saunders advised that she was able to watch a movie, however, had to pause this every 30 minutes or so, before resuming it. As such, she estimated it could take around 3 hours to complete a standard movie. Ms Saunders advised that she was able to cook a range of moderately complex recipes. Ms Saunders was able to maintain concentration for the entire assessment, which lasted 75 minutes; she did not appear distracted during this time.”
We agree with the appellant that some aspects of Ms Saunders ability to concentrate may well fit the descriptor for a Class 2 rating, however, ultimately it is a matter for the assessor to determine the appropriate rating on the day of assessment.
It is not uncommon for a claimant to “fall between” ratings such that, as stated earlier:
“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.”
As the respondent points out:
“The appellant does not suggest anything to the contrary of the MA’s approach as seen in the filed material. Given the histories and opinions of Dr George, the IME commissioned by the appellant, the foregoing is perhaps unsurprising.”
Ms Saunders told the MA that “she and her partner share cooking responsibilities for dinner”. She added, “We take turns in cooking of a nighttime”. She also said that “I used to cook a lot more.”
Again, the appellant seems to be “cherry-picking” the evidence to support the appeal.
Dr George, in his report dated 22 February 2022 said:
“The diagnosis is one of major depression with anxious distress…
Her affect was sad, and she broke down in tears in relation to learning of Dr Smith’s passing. She said that she has struggled with negative, nihilistic and at times, suicidal thoughts. She indicated a depressed mood state, which appears somewhat pervasive. Her thought form was normal, and she did not exhibit psychotic phenomena. Her cognitions were intact generally. She appeared to have a reasonable level of insight and judgement on the day of assessment.”
Like the MA at a similar time, Dr George felt that Ms Saunders had not reached maximum medical improvement, but it is clear from his comments referred to above that Ms Saunders
As the respondent correctly, in our view, submitted:
“The workers restrictions must be looked at, as the MA has done, with respect to the impact on her level of function when measured against her pre injury norms, indeed in attributing the relevant class the MA records: ‘Ms Saunders advised that she was able to watch a movie, however, had to pause this every 30 minutes or so, before resuming it. As such, she estimated it could take around 3 hours to complete a standard movie.’”
For these reasons, we again cannot see any error by the MA in his assessment in this category.
Lastly, although the appellant submitted that the MA erred “in assigning only a one tenth deduction pursuant to section 323(1) and (2) of the 1998 Act”, no actual submissions were made addressing this issue.
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA said: “Not applicable.”
This submission is clearly misguided.
There is simply no evidence to suggest the presence of a pre-existing condition in the material filed and histories provided to the various doctors.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 November 2023 should be confirmed.

[2024] NSWPICMP 168

21 March 2024