Hazelton v Royal Freemasons Benevolent Institution
[2025] NSWPICMP 805
•17 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hazelton v Royal Freemasons Benevolent Institution [2025] NSWPICMP 805 |
| APPELLANT: | Susan Dorothy Hazelton |
| RESPONDENT: | Royal Freemasons Benevolent Institution |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 17 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; consideration of the psychiatric impairment rating scales (PIRS) of social function and concentration, persistence and pace; application of section 323; worker looks after grandson; plays games for up to four hours per day; no error identified in assessment under the PIRS; deduction of one-tenth made for pre-existing history of depression; no error in application of section 323; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 July 2025 Susan Hazelton, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 June 2025.
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, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
Ms Hazelton was employed by the respondent in an administrative capacity. She was responsible for a number of different aged care facilities, providing support to registered nurses. She experienced significant difficulties with one of the facilities, causing deadlines to be missed and causing significant stress. She ceased work in April 2022, but did not mention her mental health or difficulties at that time.
There was a delay of lodgement of her workers compensation claim, which the applicant explained was due to her significant mental health issues. Once the claim was lodged, it was disputed by the insurer on the basis that Ms Hazelton had not sustained an injury, and that she had failed to make a claim and notify of the injury she suffered in accordance with the workers compensation legislation.
The dispute proceeded to the Commission and the liability questions were determined, in the appellant’s favour, by Member Homan in a decision dated 13 May 2025.
Ms Hazelton was then referred for assessment of her permanent impairment resulting from her injury. The Medical Assessor issued a MAC on 30 June 2025, assessing 8% whole person impairment. Ms Hazelton appeals against that assessment on a number of bases.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel were satisfied that there was sufficient information contained in the MAC and the material before the Appeal Panel to determine the dispute. It is noted that the appellant requested that a Medical Assessor member of the Appeal Panel conduct a re-examination. In circumstances where, for the reasons below, the Appeal Panel are not satisfied that a ground of appeal has been made out, there is no basis to conduct a re-examination.
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. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant challenges two of the Medical Assessor’s assessments under the psychiatric impairment rating scales (PIRS), being social functioning and concentration, persistence and pace, on the basis that the Medical Assessor should have assessed a higher class in each. The appellant also challenges the deduction for pre-existing impairment, made by the Medical Assessor (of 1/10th).
In reply, the respondent opposes the appeal, submitting that the assessments made under the PIRS were correct and that there is no error in the Medical Assessor’s application of s 323 of the 1998 Act.
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. The appeal concerns the Medical Assessor’s assessment of the PIRS and the consideration of the appeal is therefore limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
There are three grounds of appeal raised by the appellant. Two of those grounds relate to the PIRS, and as such it is appropriate to briefly discuss how psychological injuries are assessed in accordance with the Guidelines first.
The PIRS
Assessments of impairment are undertaken “in accordance with” the Guidelines, per s 322(1) of the 1998 Act. The Guidelines provide that psychological injuries are to be assessed using the PIRS.
The PIRS provide for six scales, “each of which evaluates an area of functional impairment” (cl 11.11 of the Guidelines). The appellant has challenged the Medical Assessor’s assessment in two of the PIRS, as well as s 323 of the 1998 Act. The scales give examples of activities that are to be taken into account when assessing the class of functional impairment. The class descriptors range from no or minor deficit, through to totally impaired. This is explained by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887:
“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 by his injury, and the classes between are in an ascending order of impairment.”
Each area of functional impairment provides a series of examples, that are “examples only” (cl 11.12). In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J considered the construction of the PIRS in the context of the examples given. He provided some commentary on the construction of the Guidelines:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.” (at [57])
The criteria in the Guidelines are not prescriptive. They must be read as a guide capable of being surmounted by other relevant facts (Rogers v Health Services Union NSW [2025] NSWSC 291 at [45]).
The Appeal Panel will now turn to each functional area challenged by the appellant in turn.
Social functioning
The Medical Assessor assess class 2 in this PIRS, providing the following reasons in the PIRS table on page 12 of the MAC:
“Ms Dorothy reported that her husband is really supportive and has been quite helpful and they spent a lot of time talking to each other. She has lost the few friendships that she had at work.”
The Guidelines provide the following criteria for classes 2 and 3 in this PIRS (being the relevant classes under dispute):
“Class 2 Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”The appellant refers to the history recorded in the body of the MAC, in particular that she doesn’t leave her house much, attend get-togethers or anniversaries, and is socially withdrawn. The appellant submits that any contact is initiated externally, and there is a reluctance to leave her home which is more consistent with class 3 impairment.
The respondent submits that appellant’s restriction is more consistent with class 2.
The Appeal Panel do not accept the appellant’s submissions. It is true that there is reference within the body of the MAC to a reluctance to leave the home. However, whilst arguable that a reluctance to leave the home has some relevance to social functioning, that is, it must be considered in line with the area of functioning being assessed – that is an injured worker’s relationships and how they are maintained. The simple fact that Ms Hazelton is reluctant to leave the home is not, of itself, social functioning.
When the evidence is considered as a whole, it is clear that Ms Hazelton maintains a degree of functioning in this area consistent with mild impairment. She provides a history that “her children visit her regularly”. Her four year old grandson makes her “very happy”. She makes sure he eats well and spends time with him in the sandpit. In terms of her friendships, Ms Hazelton gave a history of not a great deal of friends even before the work incidents, but “she stays in touch with friends who call her from time to time”. She also maintains a relationship with her husband that the Medical Assessor describes as “supportive”.
Assessment of impairment must be consider the person’s cultural background, based on “activities that are usual for the person’s age, sex and cultural norms” (cl 11.12 of the Guidelines). The kind of social activities that Ms Hazelton engages in is within appropriate cultural norms.
To qualify for class 3 impairment, there must be evidence of severely strained relationships, with periods of separation or domestic violence. Examples given include others looking after children. The criteria for class 3 are entirely incongruent with the history given in the MAC. Ms Hazelton herself is spending periods looking after her grandson and there is no evidence of separation or domestic violence. The highest the submission takes this class is of a reluctance to leave the house, which does not provide sufficient basis for an assessment of class 3 impairment.
This ground of appeal is not made out.
Concentration, persistence and pace
The Medical Assessor assessed class 2 in this PIRS, providing the following reasons in the PIRS table:
“Ms Dorothy reported that she is able to apply herself. She agreed that the Vyvanse has helped to make her thinking more clear. She said that she is able to ‘recall things quickly.’ She said that she is able to now focus and read newspapers. She then changed her stance and then said ‘I only flip through newspapers and only read emails’.
She spends a lot of time on social media. She also plays strategic and memory games and has been able to improve her levels. She said that she plays these games for about four hours per day intermittently and each time she would spend at least one hour. She said that she is getting better in her levels.”The appellant refers to the history recorded in the body of the MAC, referring to her “chair of despair”, her reliance on her husband to make daily decisions, her anxiety with visitors, and her symptomatology. The appellant submits that this is consistent with class 3 impairment and the Medical Assessor hasn’t referenced the reliance on her husband as well as the other matters of history. The respondent submits that the findings made by the Medical Assessor are consistent with class 2 impairment, particularly with reference to playing video games for four hours per day, as well as her use of Vyvanse and her ability to recall things quickly during the assessment. The respondent submits there has been no error in the assessment.
The Guidelines provide the following relevant criteria in this PIRS:
“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.”The Appeal Panel notes the extensive reasons provided in the PIRS table in the MAC. These reasons are to be read in conjunction with the history contained in the body of the MAC, as reasons are to be read as a whole.
The Medical Assessor refers to the “chair of despair” in the body of the MAC. The existence of the “chair” is not particularly relevant to the criteria in this PIRS – it is the activities undertaken by the worker that must be considered. Ms Hazelton gives a history of spending lots of time in that chair engaging in activities that require concentration, including watching TV, as well as playing “strategic and memory games”.
These games are played for about four hours per day, albeit intermittently, although each time she would play for about one hour. This type of activity is specifically within the criteria outlined in this PIRS (which, per Jenkins and cl 11.12, are examples only). The Appeal Panel consider the types of activities Ms Hazelton engages in, particularly with reference to her “strategic and memory games” as intellectually demanding tasks.
The appellant submits that the Medical Assessor has not referenced Ms Hazelton’s reliance on her husband, her ambivalence to attending to tasks and having to revisit them, and her general difficulties with attention and concentration.
In the Appeal Panel’s view, when reading the MAC as a whole, the Medical Assessor has considered those issues. A Medical Assessor is not required to refer to every aspect of the history taken in the PIRS table. The reasons refer to an ability to focus and read newspapers, although that history was amended to only flipping through newspapers.
Those aspects must be balanced against the history of being able to focus on intellectually demanding tasks for up to an hour at a time, as well as her recall and ability to concentrate during the examination. Also relevant is Ms Hazelton’s capacity to work, completing administrative work for her husband’s business. This requires a degree of concentration that would be entirely inconsistent with class 3. Whilst to some extent her husband reminds her of certain activities, when considered as a whole, the Appeal Panel are satisfied that the correct assessment is class 2 and the appellant’s submissions do not demonstrate error or the application of incorrect criteria.
Section 323 of the 1998 Act
Section 323(1) of the 1998 Act provides the following:
“In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.”
Section 323(2) provides for a default or fallback position concerning the extent of any deduction to be made, of 1/10th.
In the present matter, the Medical Assessor made a deduction of 1/10th, providing the following reasons on page 9 of the MAC:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) I have noted that Ms Dorothy had longstanding history of depression and had been
under treatment for the same with antidepressants.
b. The previous injury, pre-existing condition or abnormality directly contributes to the
following matters that were taken into account when assessing the whole person
impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) I believe that the pre-existing condition directly contributes to the current matter and
should be taken into account when assessing the whole person impairment. Along
with the pre-existing condition Ms Dorothy also experienced significant other personal
incidents including death of her dog, having to put down her bull and her horse, a
leaking house, conflict with her brother and overall stress which also impacted her
mental health.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence)”The appellant refers to relevant caselaw on the application of s 323 of the 1998 Act, including Cole v Wenaline Pty Ltd (2010) NSWSC 78, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in
Liq.) [2013] NSWSC 36 and Ryder v Sundance Bakehouse [2015] NSWSC 526. Those cases are generally relevant and widely accepted as providing an appropriate explanation of the operation of s 323 of the 1998 Act.
The appellant submits that there is no evidence of “a prior, symptomatic, condition” but that Ms Hazelton was a high functioning individual, and that the Medical Assessor assumed that a pre-existing condition must mean a deduction should be applied. The appellant further submits that the Medical Assessor has considered issues that post-date the injury, including the death of animals and issues with her house and brother.
The first thing to note is the scope of the medical dispute between the parties in evidence before the Commission. The appellant relied on the opinion of Dr Khan, who made a deduction of 2% (which is equivalent of 1/10th of the impairment) from his assessed impairment. The respondent relied on the opinion of Dr Nagesh who made a deduction on 1/10th from the assessed impairment.
The position is therefore that the Medical Assessor and the two independent medical experts who have assessed Ms Hazelton agree that a deduction of 1/10th is appropriate in the circumstances.
The appellant’s submissions bring into light two relevant aspects of the Court of Appeal’s decision in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz). The first is that it is not relevant that a pre-existing condition may have been asymptomatic prior to the injury (noting here that whilst Ms Hazelton’s pre-existing condition/s may have been asymptomatic prior to injury, they had been symptomatic in the past) at [43]:
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
Also relevant from Vitaz is the continuation of the reasons at [43], which considers circumstances (such as the present) where there is consistency as to the medical evidence (or the absence of a contest of such) as to a pre-existing condition:
“In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
It is acknowledged that the above concerns the requirement to provide reasons but it nonetheless is illustrative as to what is required of a Medical Assessor where there is no medical contest on the evidence.
The Appeal Panel note the appellant’s significant history of prior mental health issues. This is set out in the MAC on page 4. The Medical Assessor has complied with the appropriate statutory tests referred to in the appellant’s submissions, as set out above, in considering whether those conditions can be identified and importantly whether they contribute to the current degree of impairment. The consistent medical opinion is that they do. The Appeal Panel agree with that conclusion.
There is the secondary or alternative submission that the Medical Assessor has referred to and considered irrelevant considerations, being matters that post-date the injury. The Appeal Panel acknowledge the references, on page 9 of the MAC, to issues including the death of animals, leaking house, and conflict with her brother. The Medical Assessor says these things have “also impacted her mental health”.
When the Medical Assessor’s reasons are read as a whole, it is the Appeal Panel’s view that those references are made in passing and have not formed part of the Medical Assessor’s reasoning. The Medical Assessor relies on the pre-existing condition for making the deduction at (b)(i) before discussing those other issues.
In any event, in circumstances where there is consistent medical opinion that a deduction is appropriate, the Appeal Panel agree with and confirm the approach taken by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 June 2025 should be confirmed.
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