Green v State of New South Wales (Nepean Blue Mountains Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Green v State of New South Wales (Nepean Blue Mountains Local Health District) [2024] NSWPICMP 658
APPELLANT:	Deanne Green
RESPONDENT:	State of New South Wales (Nepean Blue Mountains Local Health District)
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	17 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of 10% whole person impairment (WPI) for psychological injury; whether psychiatric impairment rating scale (PIRS) categories of self care and personal hygiene, and social and recreational activities had been erroneously assessed; whether evidence contained in submissions is admissible; whether Oraha v Settlement Service International is applicable; Shi v Transpace Pty Ltd & Ors, Wingfoot Australia Pty Ltd v Kocak, and Botha v Secretary, NSW Department of Customer Service applied; Held – evidence contained in submissions is inadmissible; procedural fairness considered; self care and personal hygiene PIRS rating confirmed; social and recreational activities PIRS rating erroneously assessed; respondent’s reliance on clinical notes approached with caution; Medical Assessment Certificate revoked; 19% WPI assessed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 May 2024 Deanne Green, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 April 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 1 March 2024 this matter was referred for an assessment of WPI caused by a psychological/psychiatric disorder that occurred on 23 September 2022.
Ms Green was employed as a Director of Nursing and Midwifery with the respondent.
Ms Green was subjected to harassment over a relationship with a senior colleague.
The Medical Assessor certified a total WPI of 10%.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
Ms Green sought to be re-examined by a Medical Assessor who was a member of the Appeal Panel. However, although we found error by the Medical Assessor, we were able to correct the assessment on the evidence already before the Panel, as discussed below.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor 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 Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions which have been considered by the Appeal Panel.

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 appeal concerned the class ratings given for the categories in the Psychiatric Impairment Rating Scale (PIRS) by which, pursuant to Chapter 11 of the Guides, an assessment of psychiatric injury is made, as we explain below. The two categories challenged are those of “self care and personal hygiene” and “social and recreational activities.”

PRELIMINARY

It is regrettably necessary to commence these reasons by referring to the relevant principles regarding procedural fairness. This has been occasioned by the attempt by the appellant to introduce evidence by way of submissions.
In Shi v Transpace Pty Ltd & Ors[1] Member Kerry Haddock considered the relevant legislation in the context of procedural fairness, saying from [200]:
“200. The Workers Compensation Commission considered the issue of procedural fairness in Inghams Enterprises Pty Limited v Michelle Zarb.^[4] Deputy President Fleming said, of the operation of the now repealed s 354 of the Workplace Injury Management and Workers Compensation Act 1998, which was of similar effect to ss 43 and 52 of the PIC Act:
‘What constitutes procedural fairness will depend upon the nature of the decision under review (Kioa v West) and may be modified by clear and express provision in the statute. The procedure before the Commission is set out in section 354 of the 1998 Act ... While this provision modifies the common law rules of procedural fairness in some respects, for instance, in relation to the determination of matters on the papers, it does not alter the fundamental rule that a party is entitled to be heard in relation to the case against it, before the decision-maker exercises the power to make the decision (Twist v Council of the Municipality of Randwick.” (at [24]-[25]) (Citations omitted).’
201. In Paul Segaert Pty Limited trading as Lidco v Narayan, Acting Deputy President Roche, as he then was, said:
‘There is no doubt that the Commission and its Arbitrators are bound to comply with the rules of natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Zarb).”[2]
[1] [2023] NSWPIC 314.
[2] [2006] NSWWCCPD 296 at [46]..
With regard to proceedings before the Medical Appeal Panel it is clear that the legislation envisaged that the usual evidentiary rules were to apply. This is evident from the provisions of s 327(3)(b) and s 328(3) of the 1998 Act, which provides for the admission of additional or fresh evidence to proceedings before either the delegate of the President pursuant to s 327(4), or the Appeal Panel itself.
It is a matter of procedural fairness that the opposing party have an opportunity to consider further evidence that a party might wish to rely on. Section 325(4) gives a Medical Assessor the right to give evidence about the certificate (although he/she is not compellable and this option has never been exercised), however the opposing party is able to make submissions as to the probative weight of such evidence which may be rejected by the Panel.[3] There is therefore no justification for the conduct of the appellant in seeking to introduce additional evidence in her submissions.
[3] See for example Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112.
We note that no objection was made to the evidence given during submissions, but the respondent preferred to submit that such evidence, together with the evidence within the statements of Ms Green and Ms Hurran, were “arguably self-serving” after receipt of the adverse medicolegal report from Dr Malik. We also note that the respondent used the adjective “supposedly” when referring to the evidence within submissions made regarding the category of social and recreational activities. The use of this adjective indicates that the respondent viewed such evidence with some askance. We are at a loss to understand why it was not the subject of any formal objection and can only attribute the lack of same to a lack of familiarity with the rules of procedural fairness.
Be that as it may, in the absence of any formal objection, we are entitled to ascribe to the evidence within the submissions such weight as we deem appropriate. For the reasons explained above regarding this evidence, we find the method used by the appellant in presenting this evidence to result in it having no probative value. It is inadmissible, it is not the best evidence, it is hearsay, and it is presented in breach of the rules of procedural fairness.
We accordingly propose to ignore such submissions, and we express surprise that they were made, considering that they were prepared by counsel.

The MAC

In discussing the appellant’s current symptoms. The Medical Assessor said:[4]
“Ms Green told me that most of the time she feels alright at home, but has no motivation to do things, can get triggered by news or things on TV, can get upset, her whole personality has changed, not as happy and bubbly as she used to be, and that makes her sad. She may go and do things in the garden when she is motivated. She is not going for walks, gets mental fatigue, tried exercise physiologist but it was not successful. She was not able to tolerate the group though she liked the exercise. She enjoys time when Michelle is home and mostly wants to stay at home. Ms Green reported some benefits with treatment but the benefits have plateaued now. She reported bit of motivation, but no confidence to work, and she is not instinctive anymore.
Ms Green goes to her local shops, Coles and goes with Michelle mostly. She is not riding her scooter, doesn’t have focus and interest. She may spend her days in pyjamas, may go to birthdays with Michelle, and has no interest to self-present.”
[4] Appeal papers page 38.
The Medical Assessor’s findings on physical examination stated relevantly:[5]
“Ms Green was well-kempt, clean and dressed appropriately, and had undone hair. She was cooperative, and rapport was well-established. The mood described was anxious and had a restricted affect. She described low motivation and low energy, and no pleasurable thoughts.…”
[5] Appeal papers page 40.
At [10c] of the MAC a templated question invites a Medical Assessor to give brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why there is any difference.
The Medical Assessor noted the report of Ms Green’s qualified expert, pychiatrist
Dr Nicholas Argyle and his assessment of 20% WPI.
The Medical Assessor commented:
“In my opinion, Ms Green fulfils the DSM-5 diagnostic criteria of major depressive disorder and has reached maximum medical improvement. The final WPI was 10%.”
The Medical Assessor also noted the report of the respondent’s qualified expert, psychiatrist Dr Nabil Malik who had also found 10% WPI and again the Medical Assessor simply said “The final WPI was 10%”. It seemed that he was concentrating on the diagnosis of both medical experts which were the same as his, namely a major depressive disorder, except
Dr Argyle also thought there were features of ‘post traumatic anxiety’ which was not adopted by the Medical Assessor.
The Medical Assessor noted other comments from the medical practitioners, again appearing to concentrate on the question of diagnosis.
His comments in his Table 11.8 PIRS Rating Form we will consider below.

SUBMISSIONS

The appellant

The appellant began her submissions by alleging a failure by the Medical Assessor to consider relevant information provided by her. There was a further allegation that the Medical Assessor had failed to consider relevant information provided by Ms Green's partner of 32 years, Ms Michelle Hurran.
The appellant challenged the findings by the Medical Assessor in the PIRS categories of self-care and personal hygiene, and social and recreational activities.
The appellant set out the following general submissions in support of these challenges:[6]
[6] Appeal papers page 10.
“The MA failed to consider relevant information stated by the Appellant during the assessment.
c. The MA failed to consider relevant information provided by the Appellant’s partner.
d. The MA failed to obtain a comprehensive history from the Appellant to assess PIRS for Social and Recreational Activities.
e. The MA misinterpreted factual matters stated by the Appellant during the assessment.
f. The MA failed to take into account the totality of the evidence.
g. Failed to provide the Appellant with procedural fairness.
h. Failed to provide adequate and/or lawful reasons.”

Self care and personal hygiene

The appellant kindly set out Table 11.2 of the Guides, which in fact relate to the category of social and recreational activities. The relevant table is Table 11.1. We were also referred to Chapter 11.6 which was also set out with the bold emphasis as described:
“It is expected that the psychiatrist will provide a rationale for the rating based on the injured Appellant’s psychiatric symptoms. The diagnosis is among the factor to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured Appellant’s own description of his or her functioning and limitation, and from family members and others who may have knowledge of the person (emphasis added).”
We were referred to Jenkins v Ambulance Service of New South Wales, one of the many authorities that we will discuss below.
Ms Green reproduced the reasons given within the Table 11.8 PIRS Rating Form for the class 2 rating assessed by the Medical Assessor.
We were also referred to Ms Hurran’s statement of 6 February 2024 which stated:[7]
“12. Before the subject injury, Deanne took care of her appearance as she would properly dress herself for work and would dress up for events. We used to also enjoy cooking together as well as eating out. Following the subject injury, Deanne does not look after her appearance, I need to remind her to take showers, brush her teeth, brush her hair and change clothes. I also need to organise Deanne’s outfit for the day. We used to evenly share household chores, but now I have to do everything for the both of us. Deanne has so much self-doubt and this is reflected in her daily living. We once tried to cook together but she could not follow through as she was questioning herself when following the recipe. Deanne also needs to be reminded to eat otherwise she would be skipping meals. Most of the times when I come home from work, Deanne had not eaten at all. On her bad days, Deanne would get very negative, she would become emotional and start crying when she talks about what happened at the subject hospital. On these days it is difficult to just have a conversation, making it hard to get her to do things and she need more reminding with her personal care.”
[7] Appeal papers page 117 at [12].
We were also referred to the appellant’s statement of 6 February 2024 in which she said:[8]
“32. Prior to the subject injury, I took pride in maintaining my own physical appearance and the maintenance of my house. I used shower twice a day and brush my teeth at least twice a day. I also found enjoyment in putting on nice clothes and being well groomed.
However, since the subject injury, I have lost all motivation for self-care and maintaining the house. I currently take a maximum of 3-4 showers a week with the prompting of my partner, and I will go for days without brushing my teeth without reminders. I also tend to wear the same two outfits interchangeably whether I am at home or out. I prioritise comfort and the ease of not having to make a decision about what to wear and I have stopped caring about my self-presentation. I have becoming very dependent on my partner and require reminders and assistance such as laying out fresh clothes and even to eat. If I was alone, I tend to skip meals due to my lack of motivation to cook in comparison to before the subject injury, I used to be responsible for at least half the cooking for myself and my partner”
[8] Appeal papers page 65 - 66 at [32].
It was submitted that the evidence was inconsistent with the Medical Assessor’s conclusion that the appellant could live independently, as “she was very reliant on her partner”.
It was alleged that the Medical Assessor had failed to adequately conduct a clinical assessment. This was said to be because the Medical Assessor did not “allocate a proper weight or have regard to” Ms Hurran's information. The evidence suggested that the appellant could not live independently and that the Medical Assessor had “applied incorrect criteria.” This was due to alleged failure for the Medical Assessor to have regard to all the evidence as required by Chapter 11.6 of the Guides, as we understood the submission.
The evidence of the appellant and her partner was sufficient to justify a class 3 rating, it was submitted, and the appellant submitted “if the MA was minded to reject the written evidence of the appellant and her partner, the MA was required to set up the reasoning pathway.”
This inconsistency, it was submitted, was most obviously demonstrated when compared to the ratings given by the Medical Assessor for concentration, persistence and pace and employability, which were respectively class 3 and class 5.
The appellant noted some of the Medical Assessor's findings about those categories. We were advised that, “living independently is not a stress-free environment”. It was submitted that there were “multiple areas” that required attention, concentration and focus and if the worker gave up or lost focus, “she would almost certainly succumb to further injury”.
The appellant then speculated as to what might happen if she was required to prepare her meals daily, including an assumption that she was at risk of leaving the gas on, or the stove on, or some other relevant appliance on.

Social and recreational activities

The appellant kindly set out again the appropriate classes from Table 11.2 of the Guides, and referred to the reasons given by the Medical Assessor at Table 11.8.
In a convoluted submission that sought to introduce evidence of what was allegedly said during the assessment by the appellant (and perhaps Ms Hurran – the submission was unclear) and combine it with a selected summary of the statements of both Ms Green[9] and Ms Hurran,[10] the appellant alleged “the above information” was omitted from the MAC and that the Medical Assessor had “failed to consider” it.
[9] Paragraph [33] at appeal papers page 66.
[10] Paragraph [13] at appeal papers page 117.
It was submitted that if the Medical Assessor was minded to reject “this aspect of her evidence” then he was “required to deal with the evidence and then explain the reasons that it was not accepted”.
We were referred to the 11 October 2023 report of Dr Argyle, who noted that the “appellant goes out socially with her partner less frequently and sees family mainly at major events if prompted by her partner.”

It was alleged that this information was relevant and that was “omitted from the MAC” thus showing that the Medical Assessor had applied “incorrect criteria”.
It was again submitted that if the Medical Assessor was minded to reject that evidence, he was required to provide reasons.
Paragraph 34 of the appellant’s submissions we put also to one side as again it was an attempt to introduce evidence in the submissions. It was suggested that “had proper enquiries been made, the Appellant could have set out the correct history.”
Counsel suggested that the Medical Assessor’s conclusion was “speculative and denied the worker procedural fairness.”
We were referred again to paragraph 33 of the applicant’s statement, in an explanation of the circumstances in which Ms Green would have a coffee, which the Medical Assessor had noted she might do in a local town. In any event, Ms Green submitted that such activities as going to the local shops or medical appointments and purchasing coffee were more appropriately relevant to the travel category of the PIRS. We were then referred to another Medical Appeal Panel decision called Oraha v Settlement Service International.[11]
[11] [2024] NSWPICMP 17.

The respondent

The respondent set out an often used statement of the relevant Guides and authority regarding the application of the PIRS, which we will reproduce below.

Self care and personal hygiene

The respondent submitted that the appellant’s own expert, Dr Argyle, had assessed a class 2 rating for this category.
The respondent referred to “statements” that “were prepared after an adverse IME report” from Dr Malik. The respondent submitted that the Medical Assessor “was entitled to afford [the statements] limited weight.”
The respondent referred to the findings of the Medical Assessor and submitted, in answer to the reliance by the appellant on the provisions of Chapter 11.6 of the Guides, that they provided a discretion as to what weight a Medical Assessor could give to the evidence, including the information provided by Ms Green “and her family members”.
The respondent submitted that such information consisted of paragraph 32 of Ms Green’s statement, and it appeared to accept the evidence given by Ms Green during her submissions. It submitted, however, that all the statements were “arguably self-serving,” and repeated that they were made following the adverse medico-legal report from Dr Malik.
It was submitted that clinical judgment was very important in the assessment process, referring to Wark (see below). The Medical Assessor was not obliged to be satisfied as to every nuance in the descriptors, the respondent argued.

Social and recreational activities

The respondent referred to the relevant class descriptors for this category and noted the reasons given by the Medical Assessor for his class 2 assessment. The history taken by the Medical Assessor justified such a rating, it argued. Ms Green’s social and recreational activities included going to family birthdays, going out for coffee unaccompanied, and seeing her sisters at her home. The claim that a class 3 rating should have been given, it was argued “wrests [sic] on what the worker and her partner supposedly said to the Medical Assessor during the assessment” which the respondent said was summed up by Ms Green’s submission that she “has worked herself up to being able to attend family gatherings for a major event with the help of her partner and that she still declines to see her friends”.
The respondent noted the submission that some activities described by the Medical Assessor were more appropriate to the travel category of the PIRS. The case of Oraha was distinguishable on its facts, the respondent claimed.
The respondent submitted that the clinical notes from psychologist Kylie Pennings supported:
(a)    that Ms Green felt more comfortable speaking with good friends over the phone on 5 February 2024;
(b)    that she was going out with her partner for lunches, but preferred to be at home. She expressed a wish to see her sister in the Blue Mountains, on
22 January 2024;
(c)    that she was an old colleague from Katoomba in Springwood and was able to approach her and have a chat, on 11 December 2023, and
(d)    that she had a luncheon with her friends the day before 18 August 2023.
Significantly, the respondent failed to identify where in the material before the Medical Assessor these notes were located.
This information, it was argued, was before the Medical Assessor, and demonstrated that
Ms Green was participating in social activities. The claim that the Medical Assessor had applied incorrect criteria was thus incorrect, it was argued.
The respondent submitted that the clinical judgment was “very important” in cases involving psychological and psychiatric injury.
We note the submissions regarding incorrect criteria and demonstrable error and the authority cited, which is not controversial.
The respondent noted that the Medical Assessor had summarised the evidence before him, particularly the reports of Dr Argyle and Dr Malik, and that the Medical Assessor had provided reasoning as to why his opinion and assessment differed from those doctors “in some respects”.
The respondent submitted that the reasoning process by the Medical Assessor was supported by the history he obtained. The MAC, the respondent submitted, should be read as a whole and without an eye finely attuned to the perception of error.

DISCUSSION

As noted above, the following summary is used in many MAPs concerning psychiatric injury.

The Psychiatric Impairment Rating Scale (PIRS)

The Psychiatric Impairment Rating Scale is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[12] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[12] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[13]
[13] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[14] Campbell J was concerned the 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’.
24.The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25.The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[15]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[14] [2017] NSWSC 887.
[15] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[16] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[16] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a)    if the categorisation was glaringly improbable,
(b)    if it could be demonstrated that the AMS was unaware of significant factual matters,
(c)    if a clear misunderstanding could be demonstrated; or
(d)    if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[17] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[17] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
In her general submissions at the start of her submissions, Ms Green submitted that the Medical Assessor “failed to consider relevant evidence” provided during the assessment by both Ms Green and Ms Hurran. This submission, and the ancillary submissions made by way of illustration, are rejected. They were unsupported by evidence, as we have noted in our preliminary consideration above.
The appellant set out the following general submissions in support of these challenges:[18]
“b.     The MA failed to consider relevant information stated by the Appellant during the assessment.
c.      The MA failed to consider relevant information provided by the Appellant’s partner.
d.      The MA failed to obtain a comprehensive history from the Appellant to assess PIRS for Social and Recreational Activities.
e.      The MA misinterpreted factual matters stated by the Appellant during the assessment.
f.      The MA failed to take into account the totality of the evidence.
g.      Failed to provide the Appellant with procedural fairness.
h.      Failed to provide adequate and/or lawful reasons.”
[18] Appeal papers page 10.
In view of our findings, subparagraphs (b),(c) and (e) disclose no grounds, as there is no evidence before us which supports those submissions. The remaining grounds we will deal with in the context of each impugned category.

Self-care and personal hygiene

The relevant descriptors for this category are set out in Table 11.1 of the Guides:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population
Class 2 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.
Class 3 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 Table 11.8 Rating Form, the Medical Assessor gave a class 2 rating. He said:
“Ms Green is not near to her normal self and doesn’t do her hair. She is not going to her hairdresser, doesn’t feel like showering, and may get into pool to cool off.
Michelle will tell her to shower, and needs prompting to clean her teeth. She can do little bit more around the house, shares cooking with Michelle, if she is at work
then Ms Green may miss lunch and wait for dinner for Michelle to come home. She can live independently although looks unkempt, occasionally.”
This explanation is consistent with the observations the Medical Assessor expressed in the body of his MAC, as we have reproduced above. It cannot be said that his class rating was unsupportable, as it was indeed the same as that given by Dr Argyle on 11 October 2023.
We note that notwithstanding Dr Argyle’s assessment of 20% WPI, in fact he also assessed a class 2 rating in this category. Dr Argyle said:
“Ms Green will miss showering or dressing properly some days, may skip meals if her partner is not present and her cooking is reduced to 5 simple recipes.”[19]
[19] Appeal papers page 140.
Dr Malik also assessed a class 2 rating on 28 December 2023 giving as his reasons:[20]
“Some self neglect, not showing regularly and/or brushing teeth, she tells me her partner has to prompt her, she tells me her partner does most of the cooking, she tells me there are times when she shares.”
[20] Appeal papers page 162.
Although the appellant’s submissions were somewhat preoccupied with the finding that Ms Green could live independently, we are satisfied on the basis of the evidence that the class 2 rating was open to the Medical Assessor. We repeat the findings in Wark that Campbell J approved in Ferguson – that in this branch of medical science the value of the face-to-face assessment cannot be underestimated. A Medical Assessor is able to make assessments based on his expertise and experience that other rational minds might disagree with. Indeed, such is usually a corollary of his/her function.
A Medical Assessor has the same functions of a Medical Panel,[21] which were described in Wingfoot Australia Pty Ltd v Kocak,[22] where the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held from [47]:
The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[21] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
[22] [2013] HCA 43; (2013) 252 CLR 480.
Accordingly the opinions of other experts, and indeed all the evidence before the Medical Assessor, have a bearing on the medical question before him, but only insofar as they assist him to fulfil his function. Whilst the view of a medical specialist from one side or the other might be that the same WPI rating as the Medical Assessor determines is appropriate, such a view is relevant only to the extent that it coincides with the application of the independent opinion reached by the Medical Assessor after he has exercised his own clinical judgement
However, if a party wishes to argue that a Medical Assessor has erred in his function where its own expert opinion coincides with his conclusion, it must overcome the difficulty expressed by the above authorities, namely, that a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review. If the Medical Assessor agrees with its own expert witness, that party bears an onus to demonstrate not only that the Medical Assessor was in error, but that so also was its own expert.
The appellant’s submissions did not broach this subject, but rather concentrated on criticising an alleged failure to give reasons specifically to “reject the written evidence” of Ms Green and Ms Hurran. Such a submission is misconceived, as there is no such requirement.
In Wingfoot, at [48] the Court said:
“[48] The reasons that [the equivalent Victorian section] obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”
The statements of both Ms Green and Ms Hurran were before the Medical Assessor and he was entitled to use his clinical judgement as to their probative weight when considering the material before him. The appellant did not point to any factual error, nor any misunderstanding that had been demonstrated, but Ms Green’s complaint was that the Medical Assessor did not put sufficient weight on her self-reporting, nor the statement of
Ms Hurran.
We note the respondent’s submission that both statements were prepared following the adverse findings of Dr Malik, and were couched in terms that sought to reflect the descriptors for a class 3 rating. Be that as it may, the Medical Assessor’s reasons for awarding a class 2 rating were consistent with his findings on examination that he found Ms Green to be well-kempt clean and dressed appropriately although she had undone hair. The descriptors for a class 3, moderate, rating required amongst other things that a claimant’s self care and hygiene should be such that a family member should visit 2-3 times per week to ensure a minimum level of hygiene and nutrition. Whilst the above statements attempted to present an impairment that was within this range, the Medical Assessor preferred the history he took in the face-to-face examination. He allowed that Ms Green was “not near to her normal self” and he noted that Ms Hurran would prompt her from time to time, but he found that Ms Green shared the cooking with Ms Hurran, and his description of the domestic arrangements such as waiting for Ms Hurran for dinner was not consistent with a finding that Ms Green’s minimum standard of hygiene was as severe as the descriptor for a class 3 rating.
We have above set out the terms of Chapter 11.6, on which Ms Green also relied. However, there was no requirement for the Medical Assessor to include information from the appellant’s own description of her functioning and limitation, nor that from family members and others who may have such knowledge. He may if he wishes, but the guideline clearly gives him a discretion (“may include”). He is presumed to have read the documentation before him, as he performs an administrative function, and he has used his clinical judgement to find a level of impairment which reflects that found by Dr Argyle, Ms Green’s medico-legal expert.

This rating is therefore confirmed.

Social and recreational activities

The relevant descriptors in this category are contained in Table 11.2 of the Guides:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2: Mild impairment: Occasionally goes out to such events eg. Without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3: Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The Medical Assessor stated his reasons for that assessment as follows:
“Ms Green is not taking part in hobbies (used to do motor bike riding, read a lot, make structures in garden, plan holidays every 12 to 18 months) or recreational activities, and only goes to family birthdays. She is not visiting or catching up with her sister and niece. She has not been on holiday since the injury though she had couple of nights away somewhere. She would mostly stay at home, not part of any clubs. She goes to local shops, Coles, or may go to local town and have a coffee and may go on her own without a support person. She can see her family members, wants to be near exit and ready to leave. She doesn’t have much to talk to about, and her sister will come home at times.”
In her statement of 6 February 2024 at paragraph 33, Ms Green said:[23]
“33. I no longer have the will or motivation to engage in social activities. Prior to the subject my partner and I would enjoy going to shows, on spontaneous road trips and catching up with friends almost weekly. I used to be a planner and whenever we went on a vacation I would organise and make arrangements for travel and accommodation. I would also always attend family events as my partner and I have a strong value for family. However, in the initial months after I ceased work, I avoided all social interactions to the extent that I avoided family gatherings. With the help of my partner I have worked herself up to be able to attend occasional family gathering however this is still infrequent and I would only attend if it is a major event. I still decline invitations for any event with friends or any other social activity and have not planned any vacation since the subject injury. My partner organised a trip to Tasmania but I cancelled the trip due to my anxiety and lack of confidence in being able to travel. I am reliant on the support of my partner when I go out and I start to panic when I lose sight of her in an unfamiliar area. This is starkly different to how I was prior to the subject injury as I would often enjoy solo rides on my moped to get a coffee and read a paper at the local coffee shop. I used to enjoy chatting to strangers in the shop however now, I find it difficult to leave the house without her partner let alone converse with a stranger. The maximum I am able to do independently now is go to the local shops or get a coffee to go on the way back from my psychology appointments, however this is infrequent.”
[23] Appeal papers page 66 at [33].
In her statement, also of 6 February 2024, Ms Hurran said:[24]
“13. Deanne and I place a lot of value on our family, and we used to spend a lot of time with them by visiting each other’s family very frequently. Before the subject injury, Deanne was a social butterfly and she enjoyed seeing her friends and catch up with them over coffee or lunch as well as meeting new people. Since the subject injury Deanne rarely goes out and she wants to stay home. Initially, Deanne avoided any social activities, she did not see any of her friends and barely saw her family. Deanne still does not see her family as often as she used, and she would only see them during the odd birthdays which still takes a lot of convincing for her to go. I have also tried to convince Deanne to go on trips and I booked a trip for us to Tasmania but we needed to cancel the trip as Deanne was not mentally prepared for one. This has significantly changed as Deanne and I used to travel both interstate and overseas frequently prior to the subject injury and Deanne used to organise everything including flights, accommodation and the itinerary. On a separate occasion, I managed to convince Deanne to come to the fish market with me but when she lost sight of me, I could tell that she was panicking. I observed her to be anxious during the time we were out, and it did not appear that she was enjoying her time out.”
[24] Appeal papers page 117.
As we noted when considering the appellant’s submissions, Ms Green attempted to introduce evidence in her submissions about what she and Ms Hurran said during the course of the assessment. Leaving that inadmissible evidence to one side, the complaint was that the Medical Assessor was required to consider the evidence and explain why he rejected it. It can be seen that the Medical Assessor in broad terms did reflect the above statements. He accepted that Ms Green had stopped participating in hobbies, which he named as motorbike riding, reading, making “structures and the garden,” and planning holidays every 12 to 18 months, which is consistent with the complaints outlined in the two statements. It is also consistent that Ms Green did go to the shops independently, and that she would occasionally get a coffee whilst she was out. The Medical Assessor was also aware that Ms Green was now able to attend the occasional family gathering, although infrequently. He was also aware that she had stayed overnight away from her home on a couple of occasions.
Both Ms Green and Ms Hurran stressed that Ms Green’s ability to partake in the social activities was done with difficulty and that indeed she wanted to be near an exit and ready to leave at social occasions, which again was noted in the reasons given by the Medical Assessor.
The respondent relied on clinical notes from the psychologist, Ms Pennings, which we have extracted above. They allegedly establish that on four occasions Ms Green was involved in some form of social activity, namely having lunch on two occasions (at least) and able to approach an old colleague and converse with her. An examination however of Ms Pennings’ clinical notes only confirmed one of the facts relied on, that is, that she had lunch with her friends on 18 August 2023.[25] That entry stated:
“Reports to be feeling more like her usual self.
Went to Bunnings following last session, then stopped for coffee in Glenbrook on way home.
Had a luncheon with friends yesterday which she enjoyed.
Has set some boundaries with an ex-colleague / friend as had found their (sic) contacts were triggering. Managing better.
Saw orange car when out driving within the last week. Reports initial slight feeling of jelly legs which disappeared within seconds. Nil lingering rumination or mood changes.”
[25] Appeal papers page 447.
Further, an entry by Ms Pennings in her “Allied health recovery requests” dated
12 September 2023 recorded:^[26]
“Sessions to date have focused on targeting workplace events which have contributed to Deanne's psychological injury. As a result Deanne has reported some improvement in her mood, as well as confidence in leaving the home.”
[26] Appeal papers page 443.
An entry of the same date in Ms Pennings’ clinical notes read:[27]
“Continues to do well. Attended Plaza after last session. Walked through most of it until saw 3 colleagues who she knew reasonably
well. Chose to leave without speaking to them.
Travelled home, had a nap due to exhaustion.
Flat for a few days.
Initiated visit to fish markets with partner - went well.”
[27] Appeal papers page 446.
On 19 September 2023 Ms Pennings clinical note recorded:[28]
“Went to Plaza after last sessions. Ran into ex-employee - able to manage situation. Then went to coffee shop in Springwood & ran into another.
Feeling more confident. Feeling more her usual self.”
[28] Appeal papers page 446.
As noted, the respondent failed to advise where in the material the clinical notes it relied on could be fund. An extensive search only located the clinical note of 18 August 2023, the result being that the respondent too has sought to introduce evidence in its submissions. We accordingly ignore its following allegations:
(a)    that Ms Green felt more comfortable speaking with good friends over the phone on 5 February 2024;
(b)    that she was going out with her partner for lunches, but preferred to be at home. She expressed a wish to see her sister in the Blue Mountains, on
22 January 2024, and
(c)    that she was an old colleague from Katoomba in Springwood and was able to approach her and have a chat, on 11 December 2023.
The notes that we have just identified, however, do confirm that Ms Green was indeed socially active to the degree described by the Medical Assessor. On 18 August 2023 she was noted to go to Bunnings and stop for coffee at Glenbrook, having been to lunch the day before. On 12 September 2023 the entry stated that Ms Green “initiated” a visit to the fish markets with her partner, and on 19 September 2023 she was noted to be having coffee after seeing Ms Pennings.
We note Ms Green’s reliance on a Medical Appeal Panel case of Oraha. However, in Botha v Secretary, NSW Department of Customer Service,[29] which was decided after Oraha (which is not binding on us in any event), Stern JA, sitting in the Common Law Division of the Supreme Court said from [66]:
“….In these circumstances, the word “attends” in the Medical Assessor’s conclusion as to categorisation on the Social and Recreational PIRS should be read as encapsulating attendance at social activities both inside and outside of the plaintiff’s home.”
[29] [2024] NSWSC 781.
Her Honour explained why that construction of table 11.2 applied in [67] which included her observation that:
“… I have also had regard to the fact that, on the Social and Recreational PIRS against Class 1 – no or minor deficit, the drafter has referred to participation in social activities, whereas against Classes 2 and 3 – respectively mild and moderate impairment, the drafter has referred to a worker going out to “such events”. I doubt very much that it was intended that a higher standard of engaging in activities outside of a worker’s house, rather than participation in such activities, was intended as regards Classes 2 and 3, as opposed to Class 1.
[68]. As to context, it is clear that the aim of table 11.2 is to provide a tool for trained psychiatrists to assess a worker’s impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker’s home could be taken into account in making such assessments. …[T]he intention in table 11.2 is not to provide a tool for assessing a worker’s ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational. …f. Similarly, it is wholly artificial to suggest, as the plaintiff did, that the plaintiff hosting a birthday party must be ignored when assessing impairment on the Social and Recreational PIRS.”
The essential question in the light of the above remains whether the class 2 rating accorded to this category constitutes an appellable error, or a mere difference of opinion about which reasonable minds might differ.
We bear in mind the danger of ascribing too much weight to the clinical notes on which the respondent has relied. They are not clear whether Ms Green was in company with Ms Hurran on the various activities recorded by Ms Pennings. However they do provide some support for the Medical Assessor’s rating, and the presumption of regularity enables us to assume that he had read them.
We note that the clinical notes relied on by the respondent were made by a health professional that was concerned with Ms Green’s recovery and that they evidence a very small level of activity compared to Ms Green’s pre-injury enjoyment of her hobbies and her recreational activities. It all the circumstances the reasons given by the Medical Assessor for the class 2 rating in this category are more appropriate to a moderate impairment.
A corollary of our finding brings into issue the further 1% WPI was allowed by the Medical Assessor for the effects of treatment pursuant to Chapter 1.32 of the Guides.[30]
[30] At appeal papers page 46.
It is clear that Ms Green had no psychological issues before her injury and that therefore an assessment can made on the appellant’s condition. We are not of the opinion that
Ms Green’s treatment has resulted in any apparent substantial or total elimination of her permanent impairment. To the contrary, as we have found she still has a significant impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name

Deanne Green

Claim reference number (if known)

W977/24

Date of Injury

23 September 2022

Occupation at time of injury

Director of Nursing

and Midwifery

Psychiatric diagnoses

Major depressive disorder

Psychiatric treatment

GP, psychiatrist and

psychologist reviews

Psychotherapy and

antidepressants

Is impairment permanent?

Yes

PIRS Category				Class		Reason for Decision
Self Care and personal hygiene				2		Ms Green is not near to her normal self and doesn’t do her hair. She is not going to her hairdresser, doesn’t feel like showering, and may get into pool to cool off. Michelle will tell her to shower, and needs prompting to clean her teeth. She can do little bit more around the house, shares cooking with Michelle, if she is at work then Ms Green may miss lunch and wait for dinner for Michelle to come home. She can live independently although looks unkempt, occasionally.
Social and recreational activities				3		See MAP reasons
Travel				2		Ms Green drives locally on her own, may go to shops and has gone to her family which is 4 hours away, with Michelle. She went once on her own to support her mum, she needs to know the route, as she struggles to drive to new places. She went to fish market and was worried and anxious.
Social functioning				2		Ms Green’s family knows and understands her mental health. Michelle is supporting her, in areas that never required support, and she has taken over the role of caring for Ms Green. Ms Green may get irritable if told something and is lot more sensitive. She is not seeing her friends, not seeing work people, and may talk on phone to mutual friends, or they may come rarely to visit. There was no period of separation or violence at home.
Concentration, persistence and pace				3		Ms Green is mostly re-reading the pages, has given up, and has no interest in reading. She can’t understand or articulate the story, needs to pause the movie, and ask Michelle about the plot. She tries to do find a word, gets heavy in head, and gets headache, struggles with the instruction and needs clarification from Michelle. Ms Green doesn’t trust her instincts, couldn’t get the timber in right size when she was helping Michelle.
Employability				5		Ms Green told me that she can’t think of work, mind struggles with simple things, and going to work will be a backward step. She only knows to work in health industry and any form of work will deteriorate her mental health and is not able to go back to work.
Score			Median Class
2	2	2	3		3		5	= 3

Total %

Pre-existing impairment = nil%
Treatment effects = nil%

Final WPI = 19%

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W977/24
Applicant:	Deanne Green
Respondent:	State of New South Wales (Nepean Blue Mountains Local Health District)

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 Himanshu Singh 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

23 September

2022

n/a

nil

Total % WPI (the Combined Table values of all sub-totals)

19%

[2024] NSWPICMP 658

17 September 2024