Goodstart Early Learning Ltd v Holmes

DETERMINATION OF APPEAL PANEL
CITATION:	Goodstart Early Learning Ltd v Holmes [2024] NSWPICMP 770
APPELLANT:	Goodstart Early Learning Ltd
RESPONDENT:	Paris Holmes
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	13 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale; Ballas v Department of Education (State of NSW); Tasevski v Westpac Banking Corporation; paragraphs 1.6 and 11.12 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021; section 323 deduction; Marks v Secretary, Department of Communities and Justice; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 August 2024 Goodstart Early Learning Ltd (Goodstart) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Douglas Andrews, who issued a Medical Assessment Certificate (MAC) on 1 August 2024.
Goodstart relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contained a demonstrable error in the assessment under the Psychiatric Impairment Rating Scale (PIRS) for concentration, persistence and pace. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Holmes was employed by Goodstart as a trainee educator when she suffered a psychological injury, which is deemed to have occurred on 10 February 2020.
Liability for her claim was the subject of two decisions of the Personal Injury Commission. On 18 March 2021[1] a Member determined that Ms Holmes had suffered a psychological injury which was not wholly or predominantly caused by reasonable action with respect to performance appraisal or discipline and that she was incapacitated for work for a period. The claim for weekly compensation was closed as at 20 August 2020 and the reason for so doing is not recorded in the decision.
[1] [2021] NSWPIC 30.
In a decision dated 24 July 2023, a Member determined that participation in the My Social Support Network biopsychosocial program was reasonably necessary medical treatment as a result of Ms Holmes’ injury. The program is referred to in the evidence and submissions as MSSN.
The Medical Assessor assessed 19% whole person impairment (WPI) using the PIRS. He assessed Ms Holmes in class 1 for social functioning, class 2 for concentration, persistence and pace, class 3 for each of self-care and personal hygiene, social and recreational activities and travel and class 5 for employability. He deducted one-tenth under s 323 of the 1998 Act, resulting in 17% WPI.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
Goodstart sought that Ms Holmes be re-examined. As a result of our preliminary review, we determined that it was not necessary for Ms Holmes to undergo a further medical examination, because there is sufficient information in the file to determine the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below as are relevant extracts from the notes of her treating practitioners.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in submissions signed by its solicitor, Mr Ainsworth, Goodstart submitted that the Medical Assessor erred in failing to provide a pre-injury assessment of impairment and in making a one-tenth deduction under s 323 of the 1998 Act when it was at odds with the available evidence. Goodstart said that the Medical Assessor did not explain why he had not complied with paragraph 11.10 of the Guidelines. It said that the Medical Assessor erred in failing to address why it would be difficult or costly to determine the deduction and failing to provide reasoning “as to what difficulty or cost arises”. Goodstart set out extracts from treating doctors’ clinical notes between 2016 and January 2020 and said that it would not be difficult or costly to determine the appropriate deduction. Goodstart did not make any submissions as to what the appropriate deduction was.
With respect to social and recreational activities, Goodstart noted extracts from the clinical notes which showed that Ms Holmes has the capacity to go to the gym and grocery shopping, with or without a support person and to visit friends as well as attend a concert. It said that the Medical Assessor erred in assessing moderate impairment.
In respect of travel, Goodstart said that the evidence that Ms Holmes had travelled to her father’s house in Coffs Harbour in 2022 and had been outside more when she was there was contrary to assessment in class 3 for travel. It said that, at most, Ms Holmes suffered a mild impairment.
Goodstart submitted that the Medical Assessor erred in his assessment of concentration, persistence and pace. It said that assessment in class 2 was contrary to the history he recorded and to the evidence in the file.
Goodstart also submitted that the Medical Assessor erred in assessing Ms Holmes in class 5 for employability, referring to the matters on which it relied in respect of the other PIRS tables and to a certificate of capacity issued in early 2023 which certified her fit for two hours work on two days per week and a comment by a rehabilitation provider that the nominated treating doctor would try to increase capacity to “2 x 4 days”.
In reply, and in submissions prepared by Mr Moffet of counsel, Ms Holmes submitted that the Medical Assessor did not err in making a deduction of one-tenth under s 323, noting that he had questioned her in detail regarding her previous treatment and rejected her responses. The submissions referred to the decision of another Appeal Panel which considered Simpson JA’s decision in Marks v Secretary, Department of Communities and Justice[2] (Marks), discussed below.
[2] [2021] NSWSC 306.
With respect to the grounds concerning the PIRS, Ms Holmes said that the Medical Assessor gave reasons for assessing her in class 3 for social and recreational activities, which were consistent with the notes of her general practitioner when read in their entirety. She noted that Goodstart relied on factors relevant to other tables of the PIRS contrary to the decision in Ballas v Department of Education (State of NSW) [3] (Ballas). She said that the Medical Assessor gave appropriate reasons for his assessment under each of the impugned tables of the PIRS.
[3] [2020] NSWCA 86 at [94]-[95].

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[4] the Court of Appeal held that an 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.
[4] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[5] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[5] [2021] NSWCA 304 at [26].

The MAC

The Medical Assessor summarised the onset of the injury and the treatment that Ms Holmes has undergone. He set out her present symptoms.
The Medical Assessor said:
“When asked today, Ms Holmes denied any previous mental health problems. In a statement of 20 October 2020, she stated:
‘I acknowledge some previous difficulties while I was in school. This is within the context of “normal school stressors” and some relationship difficulties with my friends. I saw a counsellor for a couple of sessions, but I was never diagnosed with any psychological or psychiatric illness and I was able to work and participate in my normal duties.’
General practice notes written by Dr Sue Reid on 4 March 2016 referred to creating a mental health plan without giving further detail.
GP Dr Jennifer Wines, 8 March 2017, refers to having completed a mental health plan and notes symptoms of tiredness, sleep disturbance, feeling down, lacking motivation and anxiety. This is occurring with missing school, conflict with family members fighting with her mother and dealing with her brother's autism. Dr Wines referred her to a headspace clinic.
On 2 June 2017, Dr Swan Fong Chong noted that Ms Holmes had been ‘off school all week suffered depression want medication… Depressed about family work school seen psychologist’ [sic]. On 9 June 2017, Dr Chong noted that Ms Holmes was ‘doing good on Lovan’.
Ms Holmes consulted Dr Jodie Apps on 19 May 2018. Dr Apps recorded:
‘previously referred to headspace for low mood, stopped her antiderpessants herself, some isses with family as mood up and down. At TAFE doing childcare butnot attended in past 3 weeks as struggling with her mood … GP MHTP completed today, not keen on medications currently, would prefer to see how psychological input goes first no risks headspace and calm app advised. [sic]’
I discussed these clinical records with her. She minimised her pre-existing condition and emphasised that she was functioning well and that her symptoms were nothing like they are now. While I accept that this is true, she shows evidence of any pre-existing mood and anxiety condition that was present for at least two years and continuing into 2018, if not later.”
The Medical Assessor noted that Ms Holmes’ parents had separated when she was very young and that she was raised primarily by her mother but maintained good relationships with both parents. Her father lives in Coffs Harbour. The Medical Assessor set out her social activities and activities of daily living, including:
“She rises late in the morning and spends most of her day in the lounge or bedroom. She watches videos on YouTube, lasting between 15 and 60 minutes. She plays on a PlayStation for about 20 minutes, favouring Overwatch. She views romance novels for up to an hour at a time.
She often sleeps during the day.
…
Before becoming unwell, she had two close friends and a wider circle of acquaintances. She enjoyed going to the movies and social get-togethers, and she took trips to Brisbane and the Gold Coast with friends.
She has stopped most social and recreational activities. She has maintained her two closest friends, and they visit her, or she visits them every month. For example, she may go to her friend’s house, where they sit and talk. She doesn’t socialise with other people. She hasn’t been on a holiday trip since her workplace injury. She has a driver’s licence and can drive alone for short distances in for many areas. For example, she will drive less than a block to a friend’s house about once a month. Even locally, she usually has a support person, mostly her mother. She goes shopping at calls [sic Coles?] with her mother once a week for groceries.”
The Medical Assessor described his mental state examination:
“I assessed Ms Holmes in her home by an audiovisual link, for 60 minutes. The connection quality was adequate to do a comprehensive assessment.
She presented as a young woman, casually attired with mildly unkempt hair. She wore a black top and no makeup or jewellery. Throughout the interview, she clutched her stuffed toy to her chest.
She described her mood as anxious and distressed. Her anxiety was obvious, and she frequently lost her composure briefly during the interview. Her affect was restricted, consistent with her mood and congruent with the interview content. She found it very difficult to discuss the circumstances of the workplace.
I found no evidence of disorder of fight-form or perception.
Despite her distress, she gave a coherent history without difficulty recalling details or event sequences. She stayed on topic and did not need redirection.”
Summarising his diagnosis, the Medical Assessor said:
“My diagnoses rely on the Diagnostic and Statistical Manual Fifth Edition (DSM-5), published by the American Psychiatric Association.
o   Major depressive disorder with ongoing anxious distress
o   Agoraphobia
o   Panic disorder
Ms Holmes described eight of nine symptoms of a major depressive disorder, missing only that of persisting suicidality or thoughts of death.
She warrants a diagnosis of agoraphobia because of her intense fear and avoidance of being outside of her home. She experiences regular panic attacks.”
With respect to consistency of presentation, the Medical Assessor said:
“Ms Holmes came across as generally open and forthcoming about her condition. However, she minimised any pre-existing condition, even when confronted with contemporaneous medical records. Her account for pre-existing mental health cannot be accepted.”
The Medical Assessor determined that Ms Holmes’ condition had reached maximum medical improvement. He said:
“Ms Holmes has had psychotherapy and pharmacotherapy for her condition, evidence based treatments. However, given the severity of her symptoms, her treatment has not been assertive. She has only one trial of medication. I don’t adjust for the effect of treatment because there has not been a substantial or complete elimination of impairment with treatment. Her antidepressant medication has been of minimal benefit, and it is unlikely that there would be a significant deterioration in her impairment if withdrawn.”
With respect to s 323 of the 1998 Act, the Medical Assessor said that there was a deductible proportion because:
“She has had a depressive illness and anxiety. It is difficult to fully characterise these conditions given Ms Holmes’s lack of forthcoming information. She was unwell for at least until 2018. Most likely, she experienced exacerbation of the pre-existing condition. But for the pre-existing condition, her depression and anxiety would be less severe now, and the associated impairment less.”
And:
“Ms Holmes had a two-year history of mood and anxiety symptoms, with general practice treatment, including medication. Her current condition is an exacerbation of her pre-existing mood and anxiety disorder. Had a pre-existing condition not existed, her symptoms and impairment would be less severe.”
He said that the extent of the deduction is difficult or costly to determine, without providing further reasons.
We will set out the Medical Assessor’s reasons for his assessment under the relevant PIRS tables below.
Because s 323 of the 1998 Act is applied to the PIRS assessment made by the Medical Assessor, it is logical to deal with the grounds of appeal dealing with the PIRS tables before turning to s 323.

Assessment under the PIRS

The Medical Assessor was required to assess Ms Holmes as she presented on the day of the examination and to exercise his clinical judgement in determining a diagnosis and assessing impairment.[6] The observations of other assessors on other days should be considered but the Medical Assessor must form his own opinion on the questions before him on that day.
[6] Guidelines paragraph 1.6.
The Medical Assessor was required to ascribe Ms Holmes’ activities to the appropriate table of the PIRS. In Ballas v Department of Education (State of NSW) (Ballas),[7] Bell P and Payne JA explained the operation of the Guidelines:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.
In the present case, it was plainly ‘arguable’, to use the language of Vannini[8], that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ … This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.”
[7] [2020] NSWCA 86 at [94]-[95].
[8] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324.
The majority said:[9]
“Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.
…
The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities.”
[9] At [96] and [100].
In the recent decision of Tasevski v Westpac Banking Corporation,[10] Schmidt AJ said:
[10] [2024] NSWSC 401 at [27]-[33].
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.
Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.
When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.
…
It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor’s conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”

The last part of that quote reflects paragraph 11.12 of the Guidelines:
“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.”
Ms Holmes saw Dr Cocks for treatment in February and August 2022. Ms Holmes denied a “previous history of mental illness”. His provisional diagnosis was major depressive disorder and he considered that she was unfit for work. By August 2022, he was concerned about her lack of progress and considered that she had displayed an extraordinary reaction to the events at work. He said she was resistant to addressing any issues which might predate her employment.
Dr Khan, psychiatrist, assessed Ms Holmes on three occasions at the request of her solicitors. In his reports dated 16 December 2021 and 1 May 2023, he assessed 24% WPI and did not make a deduction under s 323.
Dr Bisht, psychiatrist, saw Ms Holmes at the request of Goodstart. He did not make an assessment of WPI and considered that neuropsychological testing was required because Ms Holmes was malingering.

Social and recreational activities

The Medical Assessor assessed Ms Holmes in class 3 because:
“She has given up most of her previous social activities. She now has infrequent visits to her best friends, or they visit her. She does not socialise outside this group. She considers her to close friends as ‘support persons’ as they understand her condition and are empathic. They don’t go out to other venues, such as cafes or restaurants.”
As the Court said in Ballas, the scale measures the extent of a worker’s participation in activities. As the decision in Tasevski highlights, the age and sex of the worker and the appropriate cultural norms are relevant. Ms Holmes must be assessed as a single 23 year old woman, who would be expected to be socially active.
The examples in the Guidelines for assessment in classes 2 (mild impairment) and 3 (moderated impairment) are:
“Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
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.”
Goodstart stressed the entries in the clinical notes from Workers Doctors (Ms Holmes’ current general practitioners) between 7 July 2023 and 24 May 2024 commencing with an entry that said Ms Holmes attended the gym twice in the previous week with her friend, was attempting to become more comfortable using certain equipment without her friend. Goodstart highlighted entries on 25 July 2023, 7 August 2023, 21 August 2023 and 21 September 2023, when Ms Holmes had been to the gym with or without a friend. It noted an entry on 18 September 2023 concerning interaction with friends and visits to the gym. On 25 October 2023 Ms Holmes had visited her grandmother and spent a whole day out with her friend and had gone shopping alone at 7.00am. In November 2023, Ms Holmes had stayed at a friend’s house in Newcastle and socialised with friends, including one visiting from the Gold Coast. In January 2024, she said she had spent the festive season with family and friends and attended a concert with a friend and enjoyed herself. In May 2024, the notes of MSSN recorded that Ms Holmes was going to the gym and may or may not take a support person with her.
The examples stressed by Goodstart are selective and omit the context of the entries. On 30 June 2023, Ms Holmes’ psychologist, Ms Falero, noted that Ms Holmes had seen a friend who suggested going to the gym. Ms Holmes attended once with her friend in a quiet period. In the following consultation on 7 July, the psychologist recorded that Ms Holmes had been to the gym “twice last week and this week with her friend (weekly goal achieved)”. On 25 July Ms Falero recorded that Ms Holmes was proud of herself for being able to attend the gym consistently and was comfortable to walk away from her friend and work out in another area. The accompanying notes suggest that these are small milestones in the context of ongoing symptoms as a result of the injury. Dr Dickson described her attendance at the gym as “little improvements” on 24 August 2023.
The notes do not record consistent improvement. On 11 October 2023 Ms Falero recorded that Ms Holmes’ grandmother was in palliative care and it was in that context that Ms Holmes reported having visited her in the consultation on 25 October 2023. On the same day, Ms Holmes reported “Feels left behind re: milestones, work travelling, etc. ‘I wish I could be travelling with my friend’ ”. At about the same time and on a number of occasions, Ms Falero recorded a reduction in Ms Holmes’ gym attendance when her friend was not attending.
In January 2024 Ms Falero recorded that Ms Holmes had been to a concert and enjoyed herself and had spent the festive season with family and friends. However, the notes reveal she had not been to the gym for over a month. The notes end in February 2024 when Dr Dickson noted that Ms Holmes’ motivation was low and there were no further references to the gym.
The notes from MSSN reveal numerous attempts to contact Ms Holmes and reminders that she attend the program. The complete note from Ms Howe dated 24 May 2024, on which Goodstart relied in respect of several of the PIRS tables does not support the conclusion that Goodstart sought to draw from it about Ms Holmes’ attendance at the gym. It reads:
“24/05/2024
Caroline Howe
MCC
·MCC with Dr Dickson
·Client unable to be contacted
·Chat with NTD re current lack of engagement
·NTD reported that the mum is making life difficult for everyone
·Client is still not attending or engaging
·Plays play station all day
·Was going to the gym - not sure if she is still going
·She will keep that going - he said that was the last thing to go
·May or may not take a support person with her
·Between homes a lot - split between mum and dad
·She is maxed on medication - the NTD talked to her about MSSN
·Talked about her not trying
·HE will try and increase capacity - 2 x 4 days”
There are several references in the notes to Ms Holmes feeling left behind as her friends travel and achieve milestones, which are relevant to the consideration of activities that are relevant for the person’s age, sex and cultural norms. Read in context, the notes show that Ms Holmes had very few social and recreational activities. Visiting a grandparent in palliative care and going grocery shopping early in the morning when the shops are quiet should not be seen as examples of social or recreational activities indicative of mild impairment. Ms Holmes’ gym attendance does not appear to have been maintained once her friend stopped going and she no longer had a support person. The examples of outings recorded in the notes appear to be the only recreational activities Ms Holmes has undertaken and are recorded by her treating practitioners as achievements.
The history the Medical Assessor recorded is consistent with the clinical notes and the history he obtained. Based on that history, assessment in class 3 was correct.

Travel

The Medical Assessor assessed Ms Holmes in class 3 because:
“Ms Holmes is limited in travel. She never leaves the local area and almost always goes out with a support person, usually her mother. Occasionally, she will drive less than a block to her friend’s house by herself. She never travels further afield. Given that she infrequently travels a very short distance over a familiar area, I consider this consistent with a moderate rather than mild impairment.”
The examples in the Guidelines for classes 2 and 3 are:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Moderate impairment: cannot travel away from residence without a support person. Problems may be due to excessive anxiety or cognitive impairment."
A review of those examples shows that the correct assessment of Ms Holmes impairment is mild, not moderate. There are few examples in the Guidelines of descriptors as definite as that delineating class 3 from class 2 for travel. Ms Holmes can travel short distances alone and although may only do so ‘occasionally’, her ability to drive by herself in the local area precludes assessment in class 3. We observe that the evidence relied on by Goodstart with respect to this table is not current.
We reassess Ms Holmes in class 2 for travel. That assessment is made on the basis of the history obtained by the Medical Assessor and set out in the MAC.

Concentration, persistence and pace

Ms Holmes was assessed in class 2 – mild impairment - because:
“Ms Holmes has subjective problems with concentration and memory. However, she can read or watch videos for up to an hour and play computer games for up to 20 minutes. I found no evidence of attentional or cognitive challenges during my assessment.”
Table 11.5 assesses a worker’s ability to maintain concentration and persist with cognitively demanding tasks and measures the pace of their cognitive processes. The assessment under this table is different to the other tables of the PIRS because the consultation allows the Medical Assessor to form his or her own opinion as to the worker’s ability to concentrate and respond during the examination and his findings on the mental state examination are relevant, as well as the worker’s history. The consultation is itself a cognitively demanding task. A Medical Assessor is able to rely on the mental state examination with the other information provided in coming to his or her conclusion.
Some of the examples which Goodstart drew from the evidence – such as going to a concert – are properly assessable as social and recreational activities and the decision in Ballas would prevent reliance on them in respect of other tables of the PIRS.
The classes 1 and 2 focus on a worker’s ability to undertake a course. There is a significant difference between the concentration and persistence required for study and the ability to watch YouTube videos, play computer games for up to 20 minutes, and read romance novels for relatively short periods.
The Medical Assessor made clear that Ms Holmes concentration and memory deficits are subjective. He accepted that she was open and forthcoming about her current condition. Based on his acceptance of Ms Holmes subjective problems, assessment in class 2 was correct.

Employability

Table 11.6 measures a worker’s ability to work and to cope with the normal demands of a job.
The Medical Assessor assessed Ms Holmes in class 5 because:
“She has moderately severe symptoms and is avoidant of leaving home. She hasn’t worked in any capacity for more than four years. For these reasons, I consider her unfit to work.”
Goodstart sought to rely on abilities relevant to other tables to argue that Ms Holmes should be assessed in class 4 and not class 5. As the Court of Appeal said in Ballas, examples relevant to the other PIRS tables cannot be used to assess employability.
Goodstart also relied on the fact that Dr Dickson hoped (our emphasis), with the encouragement of the rehabilitation provider, to increase Ms Holmes’ certified capacity in May 2024. There is no evidence that has occurred and, based on the other reports of
Ms Holmes’ functioning at that time, the comment is aspirational.
The factors that the Medical Assessor highlighted would preclude employment in a role such as those Ms Holmes has previously held in retail or childcare. Based on the history he obtained and Ms Holmes’ demeanour during the examination, the Medical Assessor’s assessment was correct.

Section 323

The Medical Assessor accepted that Ms Holmes had a pre-existing condition and that she was not forthcoming about its extent. He made a one-tenth deduction because the extent of the contribution to her current impairment would be difficult or costly to determine. He accepted that the injury was an aggravation of that condition.

Assessment of the pre-injury condition

Goodstart’s submission that the Medical Assessor was required to make an assessment under paragraph 11.10 of the Guidelines does not take into account Supreme Court authority concerning that paragraph.
Paragraph 11.10 provides:
“11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment levels. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percent impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI % is then assessed, and the pre-existing WPI % is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
In Marks and in Marks v Secretary, Department of Communities and Justice (No 2)[11] Simpson JA considered the application of s 323 and paragraph 11.10 in the context of a pre-existing but asymptomatic condition. In the second decision her Honour noted authorities which held that a pre-existing but asymptomatic physical condition may contribute to the degree of impairment.
[11] [2021] NSWSC 616.
Her Honour said:
“In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to ‘previous injury … or … pre-existing condition or abnormality’, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. As noted in the preliminary reasons, the cases which have previously considered this question all related to physical injury. However, as was observed on behalf of the first defendant, s 323(1) does not distinguish between physical and psychiatric or psychological injuries. It applies to all injuries equally.
Guideline 11.10, with its focus on ‘pre-injury level of functioning’, does not allow for deduction from the assessment of impairment in cases where an asymptomatic pre-existing condition contributes to the degree of permanent impairment assessed. To the extent that Guideline 11.10 excludes consideration of any contribution to the permanent impairment that might be made by an asymptomatic pre-existing condition, it is inconsistent with s 323(1).
Moreover, if it were to be accepted, as was asserted on behalf of the plaintiff in submissions in reply, that Guideline 11.10 determines that an asymptomatic condition does not materially contribute to the subsequent condition, or, … , does not do so unless it was causing ‘an assessable impairment’ prior to the injury in respect of which the assessment is made, the conclusion that Guideline 11.10 is in conflict with s 323(1) is reinforced. As was submitted on behalf of the first defendant, s 323(1) makes no distinction between physical and psychiatric/psychological injury. There may be good reason to issue, in respect of the latter, a guideline that prescribes a different procedure from a guideline with respect to the former. But that can be done only in conformity with the legislation. There is nothing in s 323(1) that authorises exclusion of asymptomatic pre-existing conditions as causative or partially causative of a subsequent impairment.”
Her Honour determined:
“I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”[12]
[12] At [29].
If paragraph 11.10 is invalid in respect of an asymptomatic condition, it is difficult to see how it could be valid in respect of any other condition.
In Secretary, Department of Communities and Justice v Lewandowski[13] Griffiths AJ considered an application for judicial review in a case where the worker had suffered a symptomatic pre-existing psychiatric decision. His Honour held that the Panel fell into error by asking whether the pre-existing impairment could be measured rather than considering what proportion of the impairment was due to a pre-existing condition.
[13] [2023] NSWSC 334.
Based on those authorities, we do not consider that the Medical Assessor was required to assess the pre-existing impairment under paragraph 11.10 of the Guidelines.

Application of s 323

Section 323 provides that there is to be a deduction from an assessment of impairment for any proportion of the impairment that is due to any previous injury … or is due to any pre-existing condition or abnormality.
In Cole v Wenaline Pty Ltd Schmidt J considered whether there should be a deduction in respect of a worker who had undergone surgical treatment for a previous, well documented, injury. Her Honour said:[14]
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”
[14] [2010] NSWSC 78 at [29]-[30] and [38].
In Ryder v Sundance Bakehouse Campbell J said: [15]
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[15] [2015] NSWSC 526 at [45].

Wilson J said in Mercy Centre Lavington Ltd v Kiely & Ors (Kiely):[16]
“Even were s 323(2) available to assess an appropriate deduction, the provision is not open-ended. It permits a ten per cent deduction to be made in circumstances where it would be ‘difficult or costly’ to make a more specific assessment, the example given in the provision being because of a lack of medical evidence. Here, there was a great deal of evidence to which the MAP could have had regard, and no evidentiary basis upon which to conclude that it would be too difficult or costly for it to do so.”
[16] [2017] NSWSC 1234 at [62].
However, the presence of entries in clinical notes does not of itself mean that it is not difficult or costly to determine the extent of the deduction. Ms Holmes’ young age means that entries made when she was a high school student are closer in time to the events which led to the injury than for an older worker.
The notes from Warringah Medical and Dental Centre commence when Ms Holmes was three years old. She was diagnosed with attention deficit hyperactivity disorder when she was 4 and there is a reference to prescriptions for Ritalin and Melatonin in an entry for 4 May 2009, though there are no further references to that medication.
On 8 March 2017, when Ms Holmes was 16, Dr Wines recorded:
“GP mental health Plan completed
Tiredness and sleepip distirbance Awake all night sleeps all day Missing alot school Feels downand is in conflict withf amily members
Brother aurism makes thingsdiffiuclt
father in bathurst sees him occasionally
Sometimes fights with mother as well
Feels lacking motivation and is anxious often
Now working at Mcdonalds partime which is good
Suggest a little more exercise
for referral to headpspace” [sic].
On 2 June 2017, Dr Chong recorded:
“History:
off school all week suffers depression want medication Work at Mcdonald Sleeps alot nauseated
Depressed about family work school Seen pychologist
Examination:
not so unhappy” [sic]
Dr Chong prescribed Lovan and on 9 June 2017 noted that Ms Holmes was “doing good on Lovan”. On 7 July 2017 Dr Chong wrote that Ms Holmes was “still on Lovan helps if takes it” the original prescription was for 28 capsules and there is no reference to a further prescription.
Ten months later, on 19 May 2018 Dr Apps wrote:
“previousl referred to headspace for low mood, stopped her antiderpessants herself, some isses with family as mood up and down.
At TAFE doing childcare, butnot attended in past 3 weeks as struggling with her mood.” [sic]
Dr Apps’ plan was:
“GP MHTP completed today, not keen on medications currently, would prefer to see how psychological input goes first
no risks
headspace and calm app advised.”
There are no references to psychological issues during 2019 and no prescriptions for anti-depressants after May 2018. A mental health care plan was prepared by Dr Mahdavi on 21 January 2020. There is no reference to the reason for the consultation. As it is in such close proximity to the date of injury, and in the same period as the incidents referred to in her statement, we infer that it was related to the injury. The next consultation was on 10 February 2020, the date of injury, when a medical certificate was provided. We note that the certificates of capacity from Workers’ Doctors record the date of injury as 4 October 2019 and Ms Holmes describes the onset of symptoms over time from them. We are satisfied that the attendance of 21 January 2020 was in respect of the injury.
Ms Holmes changed medical practices shortly after the injury. On the first relevant consultation on 6 April 2020, Dr Levenston recorded “past history of stress at school years ago”.
The Medical Assessor did not accept that Ms Holmes had been forthcoming about her previous condition. That does not, of itself, mean that a deduction of more than one-tenth was required.
There is no definition of “difficult” in s 323. It is generally accepted to apply where records have been lost or would otherwise be burdensome to obtain. In this case, part of the difficulty arises through Ms Holmes’ unwillingness to discuss it in detail. Apart from speaking to her and considering medical records, there is no way to determine the extent of her condition in the past and no way to the deduction other than by the application of clinical judgement.
There are clinical notes which show that Ms Holmes had minimal treatment for the pre-existing condition. She saw doctors at the same practice from the time she was a small child until just after the injury. The treatment she had was effectively one course of anti-depressant medication and a referral to Headspace for psychological intervention. The treatment took place over a period of about 15 months. There is no reference to treatment in the year before the injury.
In circumstances where the Medical Assessor accepted that the injury was an aggravation of an underlying condition, the clinical notes support a deduction of one-tenth under s 323.

Conclusion

For these reasons, we have determined that the MAC issued on 1 August 2024 should be revoked, and a new MAC should be issued.
When the scores as we have amended them are arranged in ascending order, as required by paragraph 11.14 of the Guidelines they are 1, 2, 2, 3, 3 and 5. The total is 16 and the median score is 2.5 rounded to 3. Under Table 11.7, the aggregate score converts to 17% WPI.
A deduction of one-tenth under s 323 results (after rounding) in 15% WPI.
The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3541/24
Applicant:	Paris Holmes
Respondent:	Goodstart Early Learning Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychological injury	N/A	17%	1/10^th	15%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2024] NSWPICMP 770

13 November 2024