Evangelista v Coles Supermarkets Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Evangelista v Coles Supermarkets Australia Pty Ltd [2021] NSWPICMP 124
APPELLANT:	Marissa Evangelista
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Professor Nicholas Glozier Dr Michael Hong
DATE OF DECISION:	15 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker suffering primary psychological injury appealed against the classification of the Medical Assessor in the PIRS categories of concentration, persistence and pace and self-care and personal hygiene; Held – no error demonstrated; MAC confirmed.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 May 2021 Marissa Evangelista (the appellant) made an application to appeal against a medical assessment (the appeal) made by Dr Douglas Andrews, Medical Assessor (the MA) and issued on 28 April 2021.
The respondent to the appeal is the Coles Supermarkets Australia Pty Ltd (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, 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

The appellant developed a primary psychological injury in the course of her employment as a checkout operator and supervisor when she was a victim in an armed robbery and threatened with a hammer and a knife on 4 July 2017.
The matter was referred to the MA, Dr Douglas Andrews, on 1 December 2020 for assessment of whole person impairment (WPI) of the appellant’s psychological disorder attributable to the injury on 4 July 2017.
The MA examined the appellant on 8 February 2021 and assessed 9% WPI in respect of the psychological disorder. The MA made a deduction of one-tenth for a pre-existing condition under s 323 of the 1998 Act. Therefore, the total WPI was assessed as 8% WPI as a result of the injury on 4 July 2017.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that, that the appellant be re-examined by a MA, who is a member of the Appeal Panel. However, the respondent submitted that “in the event the Commission determines the appeal meets the relevant criteria(s), the respondent submits that it is necessary for the appellant to undergo a further medical examination”.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

The parts of the medical certificate 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)    Ground 1 – the MA has made a demonstrable error by placing the appellant in class 2 for concentration, persistence and pace.
(b)    The MA erred in relying on the neuropsychological assessment of Professor Mattick. The MA noted on page 7 of the MAC that he was not a neuropsychologist and that neuropsychological testing was outside his area of expertise. Therefore, reliance by the MA on the cognitive neuropsychological tests, not conducted by Professor Mattick on the day of assessment by the MA, was an incorrect use of that evidence and cannot form part of the MA’s assessment as to the level of WPI and, more particularly, his score of 2 for concentration, persistence and pace. This was particularly the case when the MA at other parts of the MAC appeared to discount Professor Mattick’s opinions.
(c)    Taking into account the Guidelines as a whole, applying the permanent impairment rating scale (PIRS) and looking at the overall level of function before and after the subject incident, or alternatively looking at the subjective level of dysfunction, the appellant was more akin to a score 4 than a score 2. This was also consistent with her scoring in a class 5 for Table 11.6 – Employability.
(d)    The MA went on to say in the PIRS form that “She can run her household, including preparing meals”. This was stating her level of function, even on the history that the MA took, at a much higher level than it actually is.
(e)    The appellant does not “run her household”, her husband does. This was also inconsistent with the history taken by the MA of her current symptoms. In the present symptoms section, she described severe anxiety, being prone to panic attacks and having dissociative phenomena. This was inconsistent with being able to “run her household”.
(f)    The MA stated in the PIRS form that the appellant was able to prepare meals and actively pursued a hobby of succulent plant collecting. Regarding preparing meals and being more involved with the household, the appellant referred to the statement of Rhoel Evangelista, the appellant’s husband dated 21 September 2020, the report of Dr Jeff Bertucen dated 29 June 2020, and the reports of Dr Malik dated 3 February 2018, 25 October 2018, 22 November 2018, 20 December 2018, 02 April 2019, 04 June 2019, 31 August 2019, 14 January 2020, 09 May 2020.
(g)    The appellant relied on the following histories obtained by Dr Malik, treating psychiatrist: (a) On 3 February 2018, ‘’[s]he was able to do housework and take care of her children…..She had been trying hard to get back to her premorbid level of function’ – page 59 of the Application to Resolve a Dispute (ARD) attachments; (b) On 29 September 2018, ‘she was not motivated to do housework and appeared to forget to do tasks’ – page 68 of the ARD attachments; (c) On 25 October 2018, ‘they had been buying a lot of takeaway food as she had been neglecting housework’; (d) On 22 November 2018, ‘they had been eating takeaway food frequently as [the Appellant] had no motivation to cook; (e) On 20 December 2018, ‘She was able to do some household chores and had started cooking again’; (f) 29 January 2019, ‘She had been spending more time at home and was doing more housework’; (g) 02 April 2019, ‘She was doing some housework but preferred to stay out of the house all day until her children returned’; (h) 04 June 2019, ‘She was unable to do household chores and her husband had to assist’; (i) 31 August 2019, ‘She felt guilty if she came back home as she was not motivated to do housework’; (j) 08 October 2019, ‘She had been cooking more, doing more household chores and taking the children out in the school holidays’; (k) 14 January 2020, ‘She had been ….. and cleaning her house more regularly…..She had been cooking for her family more than previously’, and (l) 09 May 2020, ‘She was trying to do more housework…..but her level of functioning was still suboptimal’.
(h)    The appellant’s husband provided a statement in relation to her level of functioning dated 21 September 2020, and said:
“I see that my wife cooks a lot less now than she did before what happened at Coles. We now have to spend a lot more money on Take away to feed the family. I do try and cook for my family, but it’s very difficult for me to cook dinner because of my work and other household responsibilities”.
(i)    With respect to the hobby of succulent plant collecting, reference was made to the report of Dr Jeff Bertucen dated 29 June 2020 and the report of Dr Malik dated 25 October 2018. The collection and maintenance of a succulent plant collection was almost akin to a form of treatment. It was recommended to her that she continue with this by her treating doctors. Succulent plants require little maintenance. They are desert plants.
(j)    Being able to purchase, on occasion, succulent plants and look after them was not a fair indicator or objective indication that the appellant had issues or no issues with concentration, persistence and pace. The succulent plant collecting as it was referred to in the PIRS form completed by the MA was not an activity which requires a high level of concentration, a high level of persistence or a high level of pace. It was not indicative of a low score in this category.
(k)    The MA did not provide a proper basis for stating that there has been an improvement in the injured worker’s day to day function since the assessments of Dr Bertucen. The MA effectively discounted the ultimate finding of Dr Roberts and Professor Mattick that she is an untruthful person who was feigning symptoms. The MA stated on page 9
“I had no reason to suspect that Ms Evangelista was exaggerating her symptoms, or her impairment, consciously or otherwise, during my assessment today, even considering all the material before me. Instead, she came across as an honest, distressed woman.”
(l)    With respect to this class score and others, the MA did not take into account or refer to the appellant’s husband’s statement. In claims involving psychological injury, it is often a close family member who can give a more objective account of the level of dysfunction present. Mr Rhoel Evangelista in his statement referred to the appellant trying to use a computer and getting agitated when problems occurred.
(m)     The evidence of the appellant’s husband demonstrated that the appellant has difficulties with managing her household, contrary to the assessment made by the MA.
(n)    The evidence of the appellant’s husband should have been considered by the MA as it was evidence of his observations of her psychological condition and he was best placed to observe her behaviour and psychological condition over an extended period of time.
(o)    Notes made by the MA on the PIRS form with respect to employability were matters which should properly have been taken into account with respect to concentration, persistence and pace. The MA noted that she had difficulties with concentration and memory and that those symptoms and their severity was one of the reasons why she was unfit for work. She was socially avoidant. She had difficulties with a whole range of activities and suffers from an anxiety-based condition which clearly affected her concentration, persistence and pace.
(p)    The MA fell into error by assessing her class score in concentration, persistence and pace at 2.
(q)    The PIRS lists a number of matters which go towards consideration of determining whether the appellant falls within a class 2 or a class 3. However, there is no provision in the Guidelines that require particular activities to be affected - the matters raised are simply examples.
(r)    The appellant clearly has a significant level of impairment across all of the rateable scales. The MA appears to have taken a history which was fairly inconsistent with the clinical presentation that the MA recorded. The MA said on page 4:
“She was depressed and very anxious throughout the interview. Her affect was restricted, consistent with her state of mood. She frequently cried. While I was questioning her about her current symptoms, she became distressed and started to cry uncontrollably. Her husband offered her a bottle of water and after a few moments, she settled, and we proceeded. The interpreter commented that her strong expression of emotion and wanting a glass of water was culturally appropriate.”
It was not the interpreter’s function to offer opinion as to the appropriateness or culturally appropriateness of a certain reaction during a psychiatric assessment. The MA then attempted to downplay her emotional response by stating “was no more than I have seen many times in my career dealing with people with PTSD.”
(s)    These would appear to be attempts to downplay her level of symptomatology shown throughout the assessment. The level of symptomatology shown was inconsistent with the one line history as recorded about her ability to function and run her household and cook meals and the like.
(t)    There has not been an improvement since the assessment by Dr Bertucen’s. Dr Bertucen’s scores are the correct measure of her level of impairment and level of dysfunction.
(u)    Ground 2 – the MA has made a demonstrable error in assessing class 2 for self-care and personal hygiene.
(v)    The MA took the following history from the appellant: “At my assessment, she stated that she was eating well, preparing meals for her family and attending to personal hygiene without prompting”.
(w)   The appellant relied upon the analysis of the histories provided to her treating specialist and evidence of her husband. Further, the appellant referred to the assessment of Dr Jeff Bertucen dated 19 December 2018, in which he rated the appellant’s impairment pursuant to the PIRS rating scale for self-care and personal hygiene as class 3.
(x)    The MA under ‘Findings on Physical Examination’ noted that “When she first came onto the video screen, she appeared anxious and held tightly onto her husband’s arm. I allowed her husband to stay as a support person because of her evident distress”. Further,
“She was depressed and very anxious throughout the interview. Her affect was restricted, consistent with her stated mood. She frequently cried. When I questioned her about her current symptoms, she became distressed and started to cry uncontrollably. Her husband offered a bottle of water, and after a few minutes, she settled, and we proceeded.”
(y)    Dr Malik, in his medical reports, recorded a history that the appellant’s husband has attended every consultation with the applicant.
(z)    The history previously provided to her treating psychiatrists, the evidence of her husband and the appellant’s presentation during her assessment with the MA demonstrated that the appellant has an inability to manage independent living. She required the support of her husband to provide her with the necessary support to manage her day-to-day activities in the home as well as out of the home.
(aa)    The appellant has a moderate impairment pursuant to the PIRS rating scale of self-care and personal hygiene and thus falls within a class 3 assessment.
The respondent’s submissions include the following:
(a)    Ground 1 - In order to establish that the MA erred in his assessment of the concentration, persistence and pace PIRS category, the appellant must establish that the finding of a class 2 ‘mild impairment’ in respect of her concentration, persistence and pace was so flawed that another reasonable assessor could not share the findings.
(b)    The MA validly based his assessment on his observations on examination and the history obtained, as evidenced in his reasons for the determination. Therefore, there was no error.
(c)    In respect of the appellant’s submission that the MA has not taken into account or referred to the appellant’s husband’s statement, the MA recorded (at paragraph 8 of the MAC) the fact that he took the materials before him into account, which included the appellant’s husband’s statement. Further, it was open to the MA to take a relevant consideration into account but to dismiss it or give it little decisive weight (Baxter v State of New South Wales [2019] NSWWCCMA 145 at [105]-[108], with citation of Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [15]-[17]). Even the excerpts contained in the appellant’s submissions demonstrated a clear improvement in the appellant’s concentration, persistence and pace over time, from ‘neglecting housework’ noted in October 2018 to ‘cleaning her house more regularly…She had been cooking for her family more than previously’ noted in January 2020. This material, together with the MA’s more recent examination of the appellant, formed the MA’s view that the appellant was able to perform some household activities, travel within the local area and maintain a hobby. The respondent noted the latter two activities were evidenced by the surveillance material.
(d)    The appellant submitted that the MA “then attempts to downplay her emotional response….These would appear to be attempts to downplay her level of symptomatology shown throughout the assessment.” This was contrary the appellant’s later submissions in which it was stated that the MA did not consider the appellant exaggerated her symptoms.
(e)    In relation to the appellant’s submission that the reliance on a neuropsychological assessment conducted by Professor Mattick led to appealable error, the respondent submits that the MA validly used his expert clinical judgment to make an assessment on examination and that no demonstrable error has been made out with respect to the MA’s findings on concentration, persistence and pace. The MA clearly relied on evidence from appropriately qualified medical professionals. Respectfully, the appellant cannot argue on one hand that the appellant’s husband’s evidence should be provided significant weight given ‘he is best placed to observe the appellant’s behaviour and psychological condition’ but then submit the opinion of a neuropsychologist in respect of neuropsychologist testing should be discounted entirely. The MA has clearly taken all relevant considerations into account in the determination of this impairment area.
(f)    No evidence has been presented on appeal which suggested an error in fact or law, or an assessment that could not have been reasonably reached on examination and review of the available evidence. The appellant has failed to establish a demonstrable error on the part of the MA.
(g)    Ground 2 – assessment of self-care and personal hygiene. To establish a demonstrable error with respect to the PIRS categories, an appellant cannot merely submit that the MA ought to have considered certain factors to have been more significant. It must be established that the determination was such that another reasonable mind could not have come to the conclusion reached
(Glen William Parker v Select Civil Pty Limited [2018] NSWSC 140 at [66]).
(h)    The appellant appeared to rely heavily on the findings of Dr Bertucen, who examined the appellant around three years ago. The treating evidence and surveillance material clearly showed improvement in the appellant’s functioning levels since that time, examples of which were provided in the report of Dr Malik dated 14 January 2020, the report of Dr John Roberts dated 12 February 2020 and the Procare Surveillance Report dated 16 March 2020.
(i)    The MA has not applied incorrect criteria but has considered carefully the examples in the relevant classes together with his findings on examination and the other evidence and set out the reasoning as to why he assessed the appellant as class 2.
(j)    The appellant failed to make out an argument of incorrect criteria or demonstrable error and the MAC should be confirmed. However, in the event the Commission determines the appellant has met the relevant criteria(s) to appeal the MAC, the respondent submits that it was necessary for the appellant to undergo a further medical examination.
(k)    The impairment assessment for employability on page 12 of the MAC referred to ‘subjective difficulties’ whilst also acknowledging ‘various opinions have been offered that she could return to work’. Based on the MA’s observations, the respondent noted the incorrect class appeared to have been applied and the appellant would fall under class 2 or 3. In support of this submission the respondent referred to:
(i)The MA’s observations (at page 8 of the MAC) that the appellant’s condition has improved since Dr Bertucen’s assessment. Despite this, the MA assessed the appellant as a class 5 for employability, the same assessment given by Dr Bertucen.

(ii)Professor Mattick, in a report dated 9 October 2019, noted that when asked about job interests, the appellant advised that she may be able to work as a checkout assistant in a different company as she enjoyed interactions with people.

(iii)The report of Dr John Roberts dated 12 February 2020 noted that the appellant was fit to undertake work in regard to full-time employment in a different environment. Further, Dr Roberts stated that there was no reason, having regard to the appellant’s account of activities why she could not undertake such employment immediately.

(iv)The Procare Surveillance Report dated 16 March 2020 showed the appellant engaging in people-facing commercial transactions and that the appellant attended on the shops, including grocery stores and larger shopping centres.

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 “History relating to the injury”, the MA wrote:
“On 4 July 2017, Ms Evangelista was working at the front enquiry desk at Coles. Two men, one armed with a hammer and the other with a knife, committed an armed robbery of the premises. Ms Evangelista was directly threatened in a demand that she open the till. She was so frightened that she was unable to do so, and a colleague helped her out.

She was very distressed by this incident, causing increased anxiety, intrusion symptoms, mood instability, and avoidant behaviours.

She tried to return to work on three occasions but was unable to persist”.
Under “Present symptoms”, the MA wrote:
“Her mood is low most of the time. She has lost self-confidence and feels ‘useless.’ She takes some pleasure being with her family, but this is transient.

She has severe anxiety and is prone to panic attacks. She experiences dissociative
phenomena, during which her mind goes blank, and she sometimes will just sit and stare.

She is frightened when she is away from home, fearing that she might have an accident or run into the armed robbery perpetrators.

She is bothered by intrusion symptoms and is easily triggered into a distressed state.
She has a sense of shame about her condition and several times said how sorry she was for what she has put her husband and children through.

She has difficulties with concentration, attention and memory.

She has had frequent thoughts of suicide, contemplating taking an overdose on prescribed medication. She has prevented from doing so by her religious beliefs and concern for her family.

Her sleep is impaired. Sometimes at night, she wakes, screaming and shaking.

She had been eating a low-quality diet, consisting mainly of junk food, but has recently improved her diet”.
On page 4 of the MAC under “social activities/ADL”, the MA wrote:
“She married Rhoel, an electrician, in1998. They have three children, aged eight years, fourteen years and twenty-one years.

Ms Evangelista sets alarms for 6:30 AM but has trouble waking.

Once out of bed, she prepares her children’s lunches and will drive them to school. She often then goes shopping, visiting plant shops, as she has an interest in succulents.

She cooks most of the family meals, but she used to cook three times a day.

Sometimes her husband has to cook the family meal, and sometimes they have takeaway meals.

She is less attentive to housework.

She is careful to shower and brush her teeth every day. She no longer wears make-up or has her nails done.

She goes on family outings or attends get-togethers at least monthly. She always attends with support and often keeps to herself, saying, ‘I just follow the crowd.’

She has gone out with friends about three times in the last year. She has isolated herself from former friends.

She travels within the local area, either driving herself or taking public transport. She drives her children to school and will often visit shops such as Bunnings or Flower Power.

She is close to her nuclear and extended family.

She has subjective problems with concentration and memory.

She feels unable to work”.

Under “Findings on physical examination” the MA wrote:
“I assessed Ms Evangelista over a video link using zoom with a Tagalog interpreter. When she first came onto the video screen, she appeared anxious and held tightly onto her husband’s arm. I allowed her husband to stay as a support person because of her evident distress. I explained that he could not participate in the interview, and he sat silently throughout. Although Ms Evangelista spoke some English, I conducted the interview using the interpreter to ensure that she understood my questions and could respond fully. She occasionally spoke in English and appeared to be limited in her language skills.

She was in her home and appeared casually attired and well-groomed. She wore her hair in a long braid.

She was depressed and very anxious throughout the interview. Her affect was restricted, consistent with her stated mood. She frequently cried. While I was questioning her about her current symptoms, she became distressed and started to cry uncontrollably. Her husband offered her a bottle of water, and after a few minutes, she settled, and we proceeded.

The interpreter commented that her strong expression of emotion and wanting a glass of water was culturally appropriate.

Her emotional response was no more than I have seen many times in my career dealing with people with PTSD.

I couldn’t assess thought-form because of the language barrier. There is no evidence of any disorder of perception.

Ms Evangelista acknowledged thoughts of suicide and consideration of a drug overdose. She mentioned that her faith and her family were protective.

At the end of the interview, I asked her if she had any further to add; she said, ‘I don’t know what is happening to me; I am very upset with myself; nothing is helping me; I wish I [would] just die’.”
On page 4 of the MAC, under “summary” the MA made a diagnosis of post-traumatic stress disorder and persistent depressive disorder with an ongoing major depressive episode. The MA noted under “consistency of presentation”:
“Ms Evangelista has been the subject of reports suggesting that she is exaggerating, or even feigning, her symptoms.

She has experienced pre-existing mental health conditions that she tends to minimise.
The narrative provided to me today, through her interpreter, is consistent with her statement and reports by her treating clinicians. It is also consistent with the histories taken by Dr Roberts and Prof Mattick, although I do not necessarily endorse all of their conclusions”.
In commenting on other medical opinion, the MA wrote:
“The assessments of impairment done by Dr Bertucen on 19 December 2018 and that done by me today are very similar. They vary only in the domain of self-care and personal hygiene; and concentration, persistence and pace. On both domains, Dr Bertucen rated Ms Evangelista as a Class 3, while I determined a Class 2.

Regarding self-care and personal hygiene, Dr Bertucen wrote: Ms Evangelista is frequently demotivated with regard to household tasks through the day
and finds that ‘nothing is done’ by the end of the evening. In my opinion, she would be incapable of managing independent living at present without the support of her husband and oldest child.

At my assessment, she stated that she was eating well, preparing meals for her family and attending to personal hygiene without prompting. I consider that she has improved since Dr Bertucen’s assessment and now rates a Class 2.
Regarding concentration, persistence and pace, he wrote: Moderate impairment of attention, concentration, and memory as evidenced by forgetfulness of personal effects and dosages of medication, distractibility while reading and forgetfulness of recent conversation.

I have considered Prof Mattick’s assessment and, together with her ability to manage her home, and engage in her hobby of keeping plants, I consider that a Class 2 is more appropriate.

Dr Roberts felt unable to do an assessment of impairment because he believed ‘that to undertake an assessment of permanent impairment is well-nigh impossible and that all that can be inferred is that Mrs Evangelista’s mode of functioning is inconsistent with her assertions and that for all intents and purposes she is capable of undertaking far more activities than she admits to.’

Ms Evangelista has been subject to an extraordinary level of scrutiny and doubt regarding her honesty. Both Dr Roberts and Prof Mattick are convinced that she is exaggerating symptoms.

Her description of activities given to me today is similar to that given to Dr Bertucen more than two years ago while showing some improvement. She is not describing more than a moderate degree of impairment. While her symptoms are quite severe (by her description), she readily acknowledges the various things that she does that speak to her level of impairment.

While both Roberts and Mattick describe some of her daily living activities, neither has done an impairment assessment.

The surveillance report provides no information that Ms Evangelista didn’t disclose to me in my assessment.

I had no reason to suspect that Ms Evangelista was exaggerating her symptoms, or her impairment, consciously or otherwise, during my assessment today, even considering all the material before me. Instead, she came across and as an honest, distressed woman.”

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 history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
The respondent attached the decision of Member Brett Batchelor dated 20 April 2021 to the submissions filed. However, the Appeal Panel noted that this decision was already included in the papers provided to the Appeal Panel in this matter.

Ground 1 – concentration, persistence and pace

The appellant submitted that the MA made a demonstrable error in the assessment of class 2 for concentration, persistence and pace under the PIRS and in particular: (a) the MA appeared to have taken a history which was ‘inconsistent with the clinical presentation that the MA recorded; (b) the reliance on a neuropsychological assessment conducted by Professor Mattick led to appealable error, and (c) the MA did not take into account or refer to the appellant’s husband’s statement.
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 AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:

‘.. the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.”
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 Harrison AsJ cited [23] Ferguson with approval at [65]. Her Honour 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…”
Paragraph 11.12 of the Guidelines provides:
“Impairment in each area is rated using Class descriptors. Classes range from 1
to 5, in accordance with severity. The standard form must be used when scoring
the PIRS. The examples of activities are examples only. The assessing psychiatrist
should take account of the person’s cultural background. Consider activities
that are usual for the person’s age, sex and cultural norms.”
The classes of each PIRS category are allocated a descriptor. These descriptors are to be determined comparable to the clinical norms considering the person’s age, sex and culture. The associated examples are provided as guides and are not determinative.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache”.
The examples for class 3 are:
“Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The examples for class 4 are:
“Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services”.
In the PIRS Rating Form, the MA assessed the appellant as class 2 for concentration, persistence and pace, and under “Reason for decision” wrote:
“She has subjective difficulties in this regard, but her formal neuropsychological assessment found that she was cognitively not impaired. She can run her household, including preparing meals, and she actively pursues a hobby of succulent plant collecting: her impaired motivation and distractibility impact her persistence and pace”.
Under “Present symptoms”, the MA noted that the appellant experienced dissociative phenomena, during which her mind goes blank, and she sometimes will just sit and stare, and had difficulties with concentration, attention and memory.

On page 4 of the MAC, under “Social activities/ADL” the MA wrote:
“Once out of bed, she prepares her children’s lunches and will drive them to school. She often then goes shopping, visiting plant shops, as she has an interest in succulents.

She cooks most of the family meals, but she used to cook three times a day. Sometimes her husband has to cook the family meal, and sometimes they have takeaway meals.

She is less attentive to housework.
…
She has subjective problems with concentration and memory”.
In her statement dated 1 September 2020, the appellant wrote:
“29. I forget things a lot now. I will put my phone or keys somewhere and then I won't remember where I put it.

30.    I find it very difficult to remember things.

31.    Before what happened to me, I would always cook for my family. Now, I don't cook as often for my family anymore.
32.    There are times when I cook, but then I forget I'm cooking and just don't finish.

33.    My family has to rely on takeaway.

34.    I forget that I open doors. There are times that I open a door but then forget to close it. I have forgotten to close my front or back door into our home and the doors into my home are left open overnight.

35.    I feel lost all the time.
….
40.    I have to look after my kids. So, I push myself for my children, but it's very hard and always a struggle.
….
45.    I always feel like I don't want to get out of bed. I constantly push myself to get out of bed for my kids and husband.

46.    When I drive my kids to school, I always triple check my car doors to make sure that they are locked.

66.    I have now started a hobby of looking after succulents. It helps keep my mind off what has happened to me.”
In a statement dated 21 September 2020, Rhoel Evangelista, husband of the appellant wrote:
“33. I have seen my wife try to use a computer. However, I see that my wife gets very agitated when a problem arises. For instance, if all she needs to do is use her email and password to log into something, she can. However, if she forgets her password and tries to recover the password, I have seen her give up this task. She will then ask for my help.
34. I saw my wife try to do internet banking on her desktop PC. However, I saw that she got very upset. I saw that she had to go through many steps to log in and it was causing her distress.
35. If she needs to do more internet banking, she would have to log into the desktop PC. And by then, she would ask for my help”.
In his report dated 19 December 2018, Dr Bertucen rated the appellant as class 3 for concentration, persistence and pace providing the following reasons:
“Moderate impairment of attention, concentration and memory as evidenced by forgetfulness of personal effects and dosages of medication, distractibility while reading and forgetfulness of recent conversations.”
Professor Richard Mattick, clinical psychologist, in a report darted 9 October 2019 under Functional Assessment wrote:
“Domestic Activities: She said that in the past two weeks she has been able to cook and prepare meals, but prior to that she purchased takeaway foods as ‘I was sick of being sick and I’m trying to concentrate now on my housework… as I feel sad and lonely and alone and hopeless… and I feel I don’t want anything’. She said she can do light and heavy household chores, garden, and has no domestic assistance”.

Under “Social and leisure activities”, Professor Mattick noted:
“She said that she may visit a friend and go with that friend as the friend collects succulent plants and Ms Evangelista also enjoys collecting plants and gardening daily. Otherwise in terms of activity, she does the housework, listening to music on her phone, and she plays games on her mobile phone if she is feeling anxious or depressed. Otherwise she will take her children to a local park on weekends as she feels very happy with the children when they are alone together. She said that she does not go to shops much anymore.”

The appellant submitted that the MA appeared to have taken a history which was inconsistent with the clinical presentation that the MA recorded. The Appeal Panel did not consider that the history obtained by the MA was inconsistent with the clinical presentation. There have obviously been some fluctuations from time to time in the appellant’s symptoms, but the symptoms described in the assessment were not inconsistent with the comment by the MA that she could run her own household. The appellant cooked breakfast for her children, drove them to and from school, did household shopping and cleaning and some cooking. These were all activities associated with running a household.
The appellant also submitted that the reliance on a neuropsychological assessment conducted by Professor Mattick led to appealable error. It was not clear from the submissions why reliance on a report from a clinical psychologist amounted to demonstrable error. The MA was entitled to rely on the report of an expert neuropsychologist even if the MA stated that neuropsychological testing was outside his area of expertise. The fact that the report had been conducted some time before the day of the assessment by the MA did not amount to an incorrect use of evidence. The appellant made no reference to any authority in support of the submissions on this issue. Further, although the MA placed some reliance on the cognitive neuropsychological tests, these tests would have only been a part of the evidence taken into account in his assessment. The fact that the MA at other parts of the MAC appeared to discount some of Professor Mattick’s opinions about exaggerated or feigned symptoms, does not detract from the results obtained in the neuropsychological assessment. The MA defers to Professor Mattick’s expertise in this area, in the same way a psychiatric MA would in accepting a neuroradiologist’s opinion on an MRI scan. The MA provided clear reasons for his disagreement with some aspects of Professor’s Mattick’s report and why he concurred with other aspects. It is extremely common that an MA will disagree with some aspects of medicolegal report e.g. a specific rating of a class in the PIRS and agree with other opinions. This does not amount to an error.
Subsequent to Professor Mattick’s report both treating and medicolegal clinicians report improvement in her condition over late 2019 into 2020, as highlighted by the appellant in paragraph 16(g) extracting from Dr Malik’s reports.
In his report dated 29 June 2020, Dr Bertucen under “Recent/current psychological symptoms” wrote:
“Ms Evangelista states that she drives regularly to pick up her children and drop them off at school and can also do grocery shopping alone if her mother or friends are not available to accompany her. Most days she is able to organise her children for school in the morning…
Nonetheless, Ms Evangelista remains demotivated to rise at a regular hour and asks her husband to take most phone calls due to excessive startle and hyperarousal.
Concentration and memory are described as distractible and often she, e.g., abandons cooking halfway through a meal and misplaces personal effects (keys, phone). She states that her appetite and weight have increased over the last 12 months owing to ‘comfort eating’.”
Conversely, Dr Bertucen noted that “Ms Evangelista has developed a time-consuming hobby (cultivating succulent plants) which occupies her day and she often drives to local nurseries to search for them…”
Dr Malik, treating psychiatrist, in a report to Dr Virginia Tamayo dated 14 January 2020 noted that the appellant stated she felt somewhat improved since her last review and had been attending the gym two to three times a week and cleaning her house more regularly. He wrote: “She had been taking her children to activities and had enjoyed spending time with them. She had been cooking for her family more than previously.”
Dr Malik, in a report to Westfarmers Group TeamCover, dated 14 January 2020 noted that the appellant had been attending regular appointments to see him since 21 September 2017 and wrote: “She has persistent symptoms of post-traumatic stress disorder with depression but appears to be functioning better in recent times.”
Dr Malik, in a report to Dr Virginia Tamayo dated 9 May 2020, noted that the appellant had an argument with her husband about spending too much time in the garden and not preparing breakfast for their children. He wrote:
“Her husband reported that she continued to very sensitive and was prone to have meltdowns. She became agitated when she received a phone call from her employer. She was trying to do more housework and this enabled him to go to work but her level of functioning was still suboptimal. She was very independent previously and could easily juggle housework and work commitments. He did not think she was capable of returning to work”.
The appellant submitted that the MA appeared to have taken a history which was inconsistent with the clinical presentation that the MA recorded. The Appeal Panel did not consider that the history obtained by the MA was inconsistent with the clinical presentation. There have obviously been some fluctuations from time to time in the appellant’s symptoms, but the symptoms described in the assessment were not inconsistent with the comment by the MA that she could run her own household. The appellant cooked breakfast for her children, drove them to and from school, did household shopping and cleaning and some cooking. These were all activities associated with running a household.
The appellant also submitted that the reliance on a neuropsychological assessment conducted by Professor Mattick led to appealable error. It was not clear from the submissions why reliance on a report from a clinical psychologist amounted to demonstrable error. The MA was entitled to rely on the report of an expert neuropsychologist even if the MA stated that neuropsychological testing was outside his area of expertise. The fact that the report had been conducted some time before the day of the assessment by the MA did not amount to an incorrect use of evidence. The appellant made no reference to any authority in support of the submissions on this issue. Further, although the MA placed some reliance on the cognitive neuropsychological tests, these tests would have only been a part of the evidence taken into account in his assessment. The fact that the MA at other parts of the MAC appeared to discount Professor Mattick’s opinions, does not detract from the results obtained in the neuropsychological assessment.
The appellant submitted that the MA did not take into account or refer to the appellant’s husband’s statement. The statement dated 21 September 2020 by Rhoel Evangelista was in the materials forwarded to the MA.
The fact that the MA did not refer to the statement does not mean that he did not consider it. There is no requirement that every report or statement be referred to 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.”
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA43 ; 88 ALJR 52 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings.
The Appeal Panel considered that the MA explained clearly and in detail the actual path of his reasoning. The Appeal Panel was not persuaded that the lack of any reference to Mr Evangelista’s statement was an error.
The Appeal Panel accepted the history as recorded by the MA.
The Appeal Panel was satisfied that there had been some improvement in the appellant’s symptoms since the assessment by Dr Bertucen on 19 December 2018. The excerpts in the appellant’s submissions demonstrated an improvement in the appellant’s concentration, persistence and pace over time, from “neglecting housework” as noted by Dr Malik in his report of 25 October 2018 to “cleaning her house more regularly” and cooking for her family more than previously’ in Dr Malik’s report dated 14 January 2020. Dr Malik, also noted on 14 January 2020 that the appellant appeared to be functioning better in recent times.
The Appeal Panel considered that this material, together with the history obtained by the MA on examination supported the conclusion by the MA that the appellant is able to demonstrate focus and persistence with her succulent plant hobby.
The Appeal Panel considered whether the MA had erred in making a class 2 rating for concentration, persistence and pace. Dr Bertucen rated the appellant as class 3 for concentration, persistence and pace, However, the Appeal Panel, as noted above, considered that there had been some improvement in the appellant’s level of functioning since the assessment by Dr Bertucen on 19 December 2018.
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 concentration, persistence and pace. The Appeal Panel considered that the history obtained by the MA was consistent with a class 2 rating for concentration, persistence and pace.

Ground 2 – self-care and personal hygiene

The appellant submitted that the MA made a demonstrable error in the assessment of class 2 of self-care and personal hygiene under the PIRS.
The examples under Table 11.1 in the Guidelines for class 1 in self-care and personal hygiene are:
“No deficit, or minor deficit attributable to the normal variation in the general population”.
The examples for class 2 are:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
The examples for class 3 are:
“Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition”.
In the PIRS Rating Form, the MA assessed the appellant as class 2 for self-care and personal hygiene, and under “Reason for decision” wrote:
“Ms Evangelista eats well and cooks for her family most days. Although she struggles with her motivation, she attends to her housework, but to a lower standard than before. She showers and brushes her teeth daily but pays less attention to her appearance”.

On pages 3-4 of the MAC under “present symptoms” the MA wrote: “She had been eating a low-quality diet, consisting mainly of junk food, but has recently improved her diet.”
On page 4 of the MAC, under “Social activities/ADL” the MA wrote:
“She cooks most of the family meals, but she used to cook three times a day. Sometimes her husband has to cook the family meal, and sometimes they have takeaway meals.

She is less attentive to housework.

….
She is careful to shower and brush her teeth every day. She no longer wears make-up or has her nails done”.

In commenting on the opinion of Dr Bertucen, the MA noted that Dr Bertucen rated the appellant in a higher class and wrote:
“Regarding self-care and personal hygiene, Dr Bertucen wrote: Ms Evangelista is frequently demotivated with regard to household tasks through the day and finds that ‘nothing is done’ by the end of the evening. In my opinion, she would be incapable of managing independent living at present without the support of her husband and oldest child.

At my assessment, she stated that she was eating well, preparing meals for her family and attending to personal hygiene without prompting. I consider that she has improved since Dr Bertucen’s assessment and now rates a class 2”.

Dr Bertucen in his report dated 19 December 2018 assessed appellant as class 3 for self-care and personal hygiene, and under “Reason for decision” wrote:
“Ms Evangelista is frequently demotivated with regard to household tasks through the day and finds that ‘nothing is done’ by the end of evening. In my opinion, she would be incapable of managing independent living at present without the support of her husband and oldest child”.

In his report dated 29 June 2020, Dr Bertucen was not asked to provide an updated PIRS but wrote:
“…and there appears to be some improvement with regard to self-care, with daily showers and oral hygiene.

Ms Evangelista, however, is indifferent to her appearance and no longer bothers with cosmetic aspects (hair, nails, makeup)”.

In her statement dated 1 September 2020, the appellant wrote:
“31. Before what happened to me, I would always cook for my family. Now, I don't cook as often for my family anymore.

32.    There are times when I cook, but then I forget I'm cooking and just don't finish.

33.    My family has to rely on takeaway.
…
36.    My home is very messy.
…
39.    I don't do my makeup anymore”.

In a statement dated 21 September 2020, Rhoel Evangelista, husband of the appellant wrote:
“Before the Coles incident, I saw my wife look after herself quite well. I saw her regularly dye her hair. She would go to a hair salon to do this.

I feel like she doesn't care about looking after herself. She doesn’t dye her hair as frequently as she did before the incident at Coles. I now have to remind her to dye her hair. I remind her because it was something she used to do before what happened at Coles. I want her to try and do things like she did before she became this way…

I see that my wife cooks a lot less now than she did before what happened at Coles. We now have to spend a lot more money on Take away to feed the family. I do try and cook for my family, but it's very difficult for me to cook dinner because of my work and my other household responsibilities”.
Professor Mattick, in his report dated 9 October 2019, noted: “She was a middle-aged woman with olive brown skin, brown hair in a ponytail, of medium height, and possibly overweight, being neatly dressed, presenting with her husband, who was also very polite, as was she”.
The appellant submitted that the history previously provided to her treating psychiatrists, the evidence of her husband and the appellant’s presentation during her assessment with the MA demonstrated that the appellant has an inability to manage independent living. She requires the support of her husband to provide her with the necessary support to manage her day-to-day activities in the home as well as out of the home.
The Appeal Panel was not persuaded that the appellant required the support of her husband to manage her day to day activities in the home as well as out of the home. The appellant was able to cook, shop by herself, take her children to school without her husband’s assistance.
The Appeal Panel accepted the history as recorded by the MA.
The Appeal Panel considered whether the MA had erred in making a class 2 rating for self-care and personal hygiene. Dr Bertucen rated the appellant as class 3 for self-care and personal hygiene but his report in support of that rating was written more than two and a half years before the assessment by the MA. It was significant that Dr Bertucen commented in his later report dated 29 June 2020 that there appeared to be some improvement with regard to several aspects of self-care.
The MA noted that the appellant was eating well and cooked for her family most days. He noted that although she struggled with her motivation, she attended to her housework, but to a lower standard than before. He reported that she showered and brushed her teeth daily but pays less attention to her appearance.
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 self-care and personal hygiene.

Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was appropriate for the MA on the evidence to make an assessment of class 2 for self-care and personal hygiene, class 2 for concentration, persistence and pace. The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in those PIRS categories.

Respondent’s submissions in respect of employability

The respondent did not appeal the decision of the MA but argued that the incorrect class appeared to have been applied in the scale of employability and the appellant would fall under class 2 or 3 impairment assessment for employability. Although the appellant has not filed submissions in reply in respect of this issue, the Appeal Panel decided to consider the respondent’s submissions.
The examples under Table 11.6 in the Guidelines for class 3 in employability are: "Moderate impairment: cannot work at all in the same position. Can perform less than 20 hours a week in a different position, which requires less skill or is qualitatively different (eg less stressful).” The examples for class 4 are: “Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.” The examples for class 5 are: “Totally impaired. Cannot work at all.”
The MA rated the appellant as class 5 for employability. Under “Reasons for decision” he wrote:
“Because of her symptom severity, subjective difficulties with concentration and memory, and avoidant social withdrawal, she is unfit for work. She has not worked for more than three years. While various opinions have been offered that she could return to work, this hypothesis is untested.”

Dr Bertucen, in his report dated 19 December 2018 rated the appellant as class 5 for employability writing: “In my opinion, Ms Evangelista is likely to remain incapable of seeking or sustaining external employment over the next 12 months”.
In a report dated 29 June 2020, under “Capacity for work” Dr Bertucen wrote:
“Ms Evangelista, in my opinion, has no psychological capacity to return to work in her preinjury occupation (within a supermarket) owing to her persisting PTSD symptomatology and ongoing severe anxiety regarding the possibility of being attacked.

Ms Evangelista could potentially work part time, in my opinion, in a quiet office environment with no contact with the general public, a call centre or home-based work up to 20 hours per week”.
The Appeal Panel accepted the history as recorded by the MA.

The Appeal Panel considered whether the MA had erred in making a class 5 rating for employability. Dr Bertucen rated the appellant as class 5 for employability.
The MA considered it was likely that the appellant was unfit for work, had not worked for more than three years and that while various opinions were offered that she could potentially return to work, this hypothesis was untested.
Although the MA considered that there had been some improvements in the appellant’s condition since Dr Bertucen’s assessment, the Appeal Panel inferred that he did not consider that such improvement applied to employability.
The Appeal Panel accepted that Professor Mattick in his report dated 9 October 2019 noted that when the appellant was asked about job interests, she advised that she may be able to work as a checkout assistant in a different company as she enjoyed interactions with people. However, Professor Mattick also noted that the appellant had not had exposure therapy treatment which was the treatment of choice for post-traumatic stress reactions.
Professor Mattick wrote:
“Again, the Expert Guidelines on the assessment and management of Post- Traumatic Stress Disorder for Australians recommend this treatment as the single, central, important intervention. It is evidence-based, advocated globally as the important intervention, and there is no ambiguity that this is the treatment that should be provided. She has not had this treatment. She would benefit from 12, and possibly more, sessions of imaginal and/or in vivo or in real life exposure to situations which remind her of the event, going repeatedly into situations which she can cope with initially and building up to higher situations, such as going into Coles stores initially in the daytime, and later in the treatment process as part of homework going to the stores more frequently.”
Professor Mattick considered that the appellant was not fit to return to work at this time in a Coles store, but thought she could work elsewhere. He believed that she could return to work on a graduated return to work plan, initially three to five hours a day, three to five days a week, increasing over two or three months whilst she was also receiving adequate exposure treatment. Since the appellant has not undergone exposure treatment that Professor Mattick indicated would be required to support such a return to work, the Appeal Panel considered that little weight could be placed on Professor Mattick’s opinion as to her capacity for work.
The Appeal Panel accepted that the Procare Surveillance Report dated 16 March 2020 showed the appellant engaging in people-facing commercial transactions and attended on the shops, including grocery stores and larger shopping centres. However, there is a significant difference between managing to attend shops for a short period at a time as a customer and working for much longer periods of time as an employee. Further, engaging in commercial transactions in stores as an employee without the treatment recommended by Professor Mattick would be likely to remind her of the events on 4 July 2017.
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 5 for employability.
In conclusion, the Appeal Panel did not consider that a demonstrable error in the assessment of the MA. The Appeal Panel was satisfied that the assessment was not made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 April 2021 by the MA should be confirmed.

[2021] NSWPICMP 124

15 July 2021