Hall v Smick Group Pty Ltd

[2025] NSWPICMP 150

DETERMINATION OF APPEAL PANEL
CITATION:	Hall v Smick Group Pty Ltd [2025] NSWPICMP 150
APPELLANT:	Todd Wesley Hall
RESPONDENT:	Smick Group Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	John Lam Po-Tang
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	10 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories because of an inadequate path of reasoning; Held – Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 25 September 2024 Todd Hall (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
   28 August 2024.

2. The appellant relies on the following ground 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.

3. 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 grounds of appeal on which the appeal is made.

4. 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.

5. 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).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. The appellant requested that he undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

EVIDENCE

Documentary evidence

1. 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.

Further medical examination

1. Medical Assessor Douglas Andrews of the Appeal Panel conducted an examination of the worker and reported to the Appeal Panel.

Medical Assessment Certificate

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        Date of injury: 21.03.2020

   ·        Body parts/systems referred: Psychiatric/psychological disorder

   ·        Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying 7% whole person impairment (WPI) as a result of the injury as follows:

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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric/psychological disorder	21.03.2020	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	8	1/10	7
Total % WPI (the Combined Table values of all sub-totals)					7

1. The assessment was based on his assessment under psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	Todd Wesley Hall	Claim reference number (if known)	W23650/24
DOB	Xxxx	Age at time of injury	34
Date of Injury	21.03.2020	Occupation at time of injury	Cleaner
Date of Assessment	21.08.2024	Marital Status before injury	In a relationship

Psychiatric diagnoses

1. Substance Use Disorder (cocaine, benzodiazepine)

2. Major Depressive Disorder with ?psychotic symptoms

Psychiatric treatment

Yes

Is impairment permanent?

Yes

PIRS Category			Class		Reason for Decision
Self Care and personal hygiene			2		Mr Hall reported that he does not brush his teeth regularly and showers every second day.  He said that he, however, takes good care of his daughter.  He said that he “puts her on a pedestal” and ensures that her daughter has a good routine.  He does most of the household chores and makes sure that he cooks healthy meals for himself and his daughter.
Social and recreational activities			2		Mr Hall reported that he enjoyed fixing his mates' cars and motorbikes, physical training, and doing fitness exercises.  He said that he does not engage in these activities anymore and has been socially reclusive.  He, however, continues to be well supported by his friends who have helped him in various ways.  He said that his friends often take him out and have lent him money.  He said that he currently owes $60,000 to his friends and they have been very kind about it.  His friends, at times, also help in picking and dropping his daughter and leaving homecooked food at times for him.  He socialises with his friends whenever they come to his home and he also regularly goes and visits his friends.
Travel			2		He leaves the house to drop his daughter to school, for medical appointments, shopping.  He has gone to Sydney with his friend Carlos.  He has also driven to Newcastle with his friend.  He also leaves home to go and sit by the lake, which is 50 m away from his home.
Social functioning			3		Mr Hall reported that he has a good relationship with his daughter and they both support each other.  He reported that his partner walked out on him as she was unable to cope with his deteriorating mental health in September 2021.  He has lost some friendships as well.
Concentration, persistence and pace			2		Mr Hall reported that he struggles with his memory and is often forgetful.  He said that he lacks motivation and is unable to persist in his activities.  However, he has been able to manage the household and take care of his daughter on his own.  He was able to focus during the one-hour-long assessment and was not distracted at all.He reported that he forgets things and is unable to focus on one task. Mr Hall however scored 3/3 on three-word repeat and 3/3 on three-word recall during the assessment.
Employability			4		Mr Hall has partial capacity to work.  He can work less than 20 hours per fortnight in a supportive environment.  I have noted that Mr Hall was willing to work; however, has not returned to work, believing that he would not get employment because of his criminal record.
Score										Median Class
2	2	2		2		3	4		=2
Aggregate Score Impairment								Total			%
+2	+4	+6		+8		+11	15			8

Deduction for pre-existing impairment = 1/10

Final WPI = 8 - 0.8 = 7.2 = 7%”

1. The worker appealed.

2. In summary, the appellant submitted that the Medical Assessor made demonstrable errors in the assessments she made under two of the six PIRS categories, namely self-care and personal hygiene and concentration, persistence and pace, causing her to make errors as follows:

   (a)    in assessing a class 2 social and recreational activities when she should have assessed a class 3, and

   (b)    in assessing a class 2 for concentration, persistence and pace when she should have assessed a class 3.

3. In summary, the respondent employer Smick Group Pty Ltd (the respondent) submitted that the Medical Assessor did not err and nor did she make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

4. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring her clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS for mere difference of opinion but must be satisfied as to error.

5. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self-report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that the path of reasoning was inadequate, and it was not clearly discernible from the reasons given that the assessments under the contested PIRS were based upon the correct criteria, noting the history, self-report of the appellant and the other evidence before the Medical Assessor.  

6. In these circumstances of the above finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Douglas Andrews was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W23650/24
Appellant:	Todd Wesley Hall
Respondent:	Smick Group Pty Ltd

Examination Conducted By:	Dr Douglas Andrews
Date of Examination:	19 December 2024

1.   The workers medical history, where it differs from previous records

Mr Hall started working as a cleaner for Smick Group in 2017 and alleges that he was subjected to bullying and harassment. He left their employment on 21 March 2020 and has not worked in any capacity since.

He lives in a freestanding house in San Remo, New South Wales. He has custody of his seven-year-old daughter Monday through Thursday and every second Saturday. He separated from his ex-partner shortly after leaving work.

Mr Hall challenged the MA's history regarding the support he receives from friends and the extent of his social activity. This is discussed further below.

He is cared for by general practitioner Dr Agerico Miclat, whom he sees monthly. He has struggled to trust other practitioners, but of Dr Miclat, he said, “I trust him; he understands me.” He is not seeing a psychologist or psychiatrist.

2.   Additional history since the original Medical Assessment Certificate was performed

Current treatment:

There have been changes to Mr Hall’s medication regimen since the MA assessed him. His current medications are:

·        venlafaxine extended release 150 mg mane

·        diazepam 5 mg, at least four tablets daily as needed

·        quetiapine 150 mg, two or three tablets daily as needed

Mr Hall had also been using medicinal marijuana but stopped about three months ago because he couldn’t afford it.

Symptoms:

Mr Hall said he felt “sad and broken; every day is different.” His mood is reactive to circumstances without diurnal variation. He enjoys his daughter's company and considers being a father his only meaningful role in life.

He has pervasive anxiety and describes being “wound up and on edge all the time.” He has somatic symptoms such as shaking, chest tightness and nausea.

He feels unsafe, especially away from his home. He is “always observing, always watching.” He fears his ex-employer is pursuing him and has sometimes been watched or followed. He worries that he will be physically assaulted. I asked why he continued to be concerned about his ex-employer, and he replied, “I got followed… I stay away from cameras… I don’t know who knows who or who he knows.”

He has subjective problems with concentration, attention and memory.

Mr Hall is bothered by intrusive thoughts about his circumstances. He said, “Why did I put myself in the situation? I didn’t deserve it.”

He denied hallucinations or ideas of reference.

He denied current thoughts of suicide, indicating that having his daughter was strongly protective.

Sleep is variable, even with significant medication. He often has initial and middle insomnia.

His appetite is poor, and he has lost significant weight.

Physical health:

Mr Hall has untreated dental caries. He described chronic pain for which he takes oxycodone (5 mg, up to 6 tablets daily) and pregabalin.

He hasn’t used cocaine since 2022.

He estimated that he had lost more than 40 kg in weight since the onset of his mental health problems. He attributed this to poor diet and medication.

Activities of daily living:

Mr Hall spends most of his time at home. On days when he has his daughter, he may spend some time arranging activities for her, such as drawing. He said he puts on a “false face” to not distress her.

On school days, he takes her to school, a 10-minute drive, although he is often supported by a friend who drives them both. He doesn’t walk to school because, “If I walked, I would worry someone would be trying to get me. I need a quick escape route because of the way Nathan [his ex-employer] attacked me.”

He does a minimum of housework. For dinners, he serves simple meals, buys preprepared meals or orders takeaway. He has his shopping delivered.

He showers once or twice weekly.

On days when he is not responsible for his daughter, he spends much of his day lying in bed.

He has one friend, Daniel, who visits frequently, helps get his daughter to school, and drives him to medical appointments. He visits Dr Miclat monthly, a 10-minute drive.

He denied leaving San Remo in 2024. Last year, another friend took him to Sydney and Newcastle for medical assessments. He has since distanced himself from this friend.

Although he has a driver’s license, he said, “I never drive by myself.”

He asserts that he only has contact with his single friend and daughter. He doesn’t talk to his ex-partner. He receives text messages from his family but doesn’t respond. He has lost other friends because they haven’t understood his circumstances, and he no longer trusts them.

He reads self-help tracts to try to understand his situation. However, he can only persist for a few minutes. He occasionally watches comedies on television, such as the movie That’s My Boy, in short bursts.

He has no projects or hobbies. He no longer pursues interests such as maintaining motorcycles or cars, saying, “I don’t have the motivation.”

Consistency:

Today's history is more consistent with those taken by IME Dr Teoh in February 2022 and MA Dr Hong in August 2022 than that of MA Dr Verma. Dr Verma described more social support and interaction, independent travel, and no apparent problems with concentration or memory during the interview. These things were put to Mr Hall for comment. Generally, he felt that she had misunderstood him.

Diagnosis:

Mr Hall meets DSM-5 criteria for a major depressive disorder. He has eight of the nine described criteria, currently denying thoughts of death or suicidality.

Likely, Mr Hall is overusing oxycodone and diazepam and is dependent on both.

He is suspicious and paranoid. It is unclear whether his concerns today reached delusional intensity, but he has possibly had low-grade persisting psychosis. Alternatively, he has a paranoid personality.

He denies any mental health problems before joining Smick, but there is no available corroborative history to support this.

Impairment:

Mr Hall appealed the MAC impairment ratings in social and recreational activities and concentration, persistence, and pace. The MA found a mild impairment (class 2) in both categories.

Social and recreational activities – Mr Hall no longer goes to cafés or restaurants. He has a single friend who visits his home. He doesn’t go to the beach and has stopped attending the gym. His lack of trust in others has led him to isolate himself, avoiding social opportunities. This is a moderate impairment (class 3).

Concentration, persistence, and pace – Mr Hall has subjective challenges with concentration and memory. He struggles to commence chores at home. He reads for only a few minutes and watches television in short bursts. He has no projects or hobbies. During my interview, he struggled with dates and event circumstances, needed questions restated, and needed redirection. This is a moderate impairment (class 3).

In the remaining categories, the MA determined:

·        self-care and personal hygiene – class 2

·        travel – class 2

·        social functioning – class 3

·        employability – class 4

The ratings are 2, 2, 3, 3, 3, and 4, with a median of 3 and an aggregate of 17.

This equates to a 19% WPI.

3.   Findings on clinical examination

I assessed Mr Hall for 65 minutes in his home via an audiovisual link. The connection quality was adequate to do a comprehensive assessment.

He presented as a dishevelled man wearing a T-shirt and grey sweatshirt. He rarely made eye contact during the interview, usually looking away from the camera.

He spoke slowly and appeared distressed throughout the interview. He acknowledged his anxiety and that he found it very difficult to discuss his circumstances.

He was suspicious and lacking in trust and confidence in the process.

He gave a discursive history and struggled with details and event sequences. He frequently discussed his ex-employer, lack of trust in others and feeling unsafe.

Mr Hall was guarded and appeared reluctant to answer some questions fully.

Several times, I needed to restate questions or redirect him. At about 45 minutes, he said he didn’t want to discuss things further. I reassured him that the process was almost complete, and he agreed to continue.

At the end of the interview, I asked him whether he had anything further he would like to add, and he said, “I don’t know why she [referring to the MA] would have said I have friends around when I only have one friend. I push everyone away.”

4.   Results of any additional investigations since the original Medical Assessment Certificate

No special investigations have been done.

1. The Appeal Panel considers that the examination undertaken by Medical Assessor Douglas Andrews was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Douglas Andrews has provided in his report to the Appeal Panel, including the history as to the appellant’s ability to function in the PIRS categories that have been challenged on appeal, namely social and recreational activities and concentration, persistence and pace. The Appeal Panel notes that Medical Assessor Douglas Andrews had regard to the other evidence before him, has not relied on self -report alone and has used his clinical expertise on the day of assessment to make recommendations to the Appeal Panel about the assessments of the contested PIRS categories. The Appeal Panel also notes Medical Assessor Douglas Andrews findings on clinical examination of the appellant and his diagnosis made after clinical examination of the appellant, namely that the appellant worker continues to meet DSM-5 criteria for a major depressive disorder. The Appeal Panel agrees with and adopts the findings of Medical Assessor Douglas Andrews.

1. In respect of social and recreational activities, Table 11.2 of the Guides provides as follows:

   Table 11.2: Psychiatric impairment rating scale – social and recreational activities

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.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

1. The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

   “Mr Hall no longer goes to cafés or restaurants. He has a single friend who visits his home. He doesn’t go to the beach and has stopped attending the gym. His lack of trust in others has led him to isolate himself, avoiding social opportunities. This is a moderate impairment (class 3)”

2. The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or class 3 for social and recreational activities.

3. In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:

   Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

1. The Appeal Panel adopts the findings of Medical Assessor Douglas Andrews on re-examination as follows:

   “Mr Hall has subjective challenges with concentration and memory. He struggles to commence chores at home. He reads for only a few minutes and watches television in short bursts. He has no projects or hobbies. During my interview, he struggled with dates and event circumstances, needed questions restated, and needed redirection. This is a moderate impairment (class 3).”

2. The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or Class 3 for concentration, persistence and pace.  

3. What this means is that the classes assessed by the Appeal Panel for the contested PIRS categories of social and recreational activities and concentration, persistence and pace and employability. The calculations become as follows:

Score								Median Class
2	2	3	3	3	4		3
Aggregate Score Impairment						Total			%
+	+	+	+	+	17			19 %

1. There was a deduction of one-tenth made by the Medical Assessor for a pre-existing condition abnormality or injury under s 323 and no allowance for the effects of treatment made by the Medical Assessor. These aspects of the assessment were not the subject of complaint on appeal. This means that taking into account the deduction under s 323, the total WPI is 19% less 1/10^th = 17.1% or 17% after rounding and the MAC will be revoked.

2. For these reasons, the Appeal Panel has determined that the MAC issued on
   28 August 2024 should be revoked and a new MAC issued. 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:	W23650/24
Applicant:	Todd Wesley Hall
Respondent:	Smick Group Pty Ltd

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

The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma 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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric/psychological disorder	21.03.2020	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	19	1/10	17.1 or 17% after rounding
Total % WPI (the Combined Table values of all sub-totals)					17%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.