Hill v Citrus Group Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Hill v Citrus Group Pty Ltd [2025] NSWPICMP 38
APPELLANT:	Samuel Hill
RESPONDENT:	Citrus Group Pty Ltd
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	17 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Medical appeal; challenge to assessment under the psychiatric impairment rating scale (PIRS) categories of social and recreational activities and concentration, persistence and pace; whether Medical Assessor (MA) applied the correct criteria as set out in the Guidelines; whether the MA correctly characterised activities undertaken by the appellant per Ballas v Department of Education (State of NSW); Botha v Secretary, NSW Department of Customer Service, and Lancaster v Foxtel Management Pty Ltd considered; Held – MA did not err in assessment of social and recreational activities; MA did not err in Ballas sense; MA erred in assessment of concentration, persistence and pace; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 October 2024 Samuel Hill (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Sathish Dayalan, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 September 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 Guidelines).

RELEVANT FACTUAL BACKGROUND

Mr Hill was employed by the respondent (Citrus Group Pty Ltd) as a customer services operator in 2021. His employer was contracted to Woolworths and his role was in a call centre type environment. He worked there for three to four months before suffering a psychological injury that was deemed to have occurred on 29 November 2021, due to bullying and belittling from his manager.
Mr Hill brought a claim to the Personal Injury Commission (Commission) for lump sum compensation only. The dispute was limited to the extent of permanent impairment suffered by Mr Hill, with his claim being based on an assessment of Dr Chow of 23% whole person impairment. The respondent’s independent medical expert, Dr Khan, assessed 7% whole person impairment.
Mr Hill was referred for assessment by a Medical Assessor which took place on 17 August 2024. A MAC was issued on 10 September 2024, which assessed Mr Hill as suffering from 8% whole person impairment, which is below the relevant threshold for entitlement to lump sum compensation. Mr Hill appeals against that assessment.

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 there was sufficient information available before the Appeal Panel to determine the issues raised on appeal. Further, whilst the appellant has indicated in form that he requests that he be re-examined by a member of the Appeal Panel, no submissions were made in support of this contention and it was not pressed in the submissions attached.

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. The submissions will be dealt with in more detail under findings and reasons below.
In summary, the appellant challenges the Medical Assessor’s assessment under the Psychiatric Impairment Rating Scales (PIRS) in two functional areas, being social and recreational activities and concentration, persistence and pace. The appellant submits that the Medical Assessor failed to consider evidence and findings on examination in respect of both challenged PIRS, and in respect of social and recreational activities, considered irrelevant matters and failed to consider relevant matters.
In reply, the respondent submits that the assessments under social and recreational activities and concentration, persistence and pace were appropriately made. In respect of the submissions going to social and recreational activities on the failure to consider ground, the respondent submits that the Medical Assessor made no error when considering the appellant’s attendance at family events as being within the PRIS of “social and recreational activities”.

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 application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is 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.
The appellant’s submissions, as set out in summary above, address two of the PIRS. The Appeal Panel will deal with the submissions raised under those two PIRS, acknowledging that there are separate grounds addressed to the social and recreational activities scale.

Social and recreational activities – failure to consider

The first ground under this PIRS is that the Medical Assessor failed to properly consider the evidence and findings on examination under this PIRS. The appellant submits that this PIRS looks to the extent to which an injury has impaired a person’s ability to go out in public, attend, and be actively involved in activities where other people are attending. The appellant submits that class 2 is appropriate in circumstances where a person is able to occasionally attend public and social events such as a football game or club in order to interact with other club members. The evidence suggests that Mr Hill would not be able to attend, even occasionally, social or public events because of anxiety. Attendance at the Police Citizens Youth Club (PCYC) does not demonstrate an ability to engage with others, but rather is a solitary attempt at exercise.
In response, the respondent submits that the fact that Mr Hill attends the PCYC to do laps of the basketball court and is hoping to secure an annual membership is consistent with an ability to participate in recreational activities. The respondent submits that whilst Mr Hill attends alone, the character of the activity is inherently recreational, as a hobby which the appellant enjoys. The respondent also refers to Mr Hill’s attendance at family gatherings, which is submitted shows an ability to occasionally attend social events but not be actively involved. There is nothing in the Guidelines to say at the “social activities” to which this PIRS relates must be events involving the general public or involve socialising with members or attendees, as submitted by the appellant.
Impairment for psychological injury is assessed under the PIRS tables in accordance with the Guidelines. The PIRS assess the behavioural consequences of psychiatric disorders in six areas of functional impairment (cl 11.1 of the Guidelines). Clause 11.12 of the Guidelines provides how the PIRS tables are to be used.
In the present case, the dispute concerns the difference between classes 2 and 3 under the PIRS of social and recreational activities. Those classes provide:
“Class 2 Mild impairment: Occasionally goes 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 1 refers also provides “May belong to clubs or associations and is actively involved with these”. It is noted that classes 2 and 3 both refer to “such events” which inferentially includes belonging to clubs or associations. It is clear that the character of this PIRS is framed by the examples given in the Guidelines, which although are examples only, inform how the Guidelines are to be interpreted.
The Medical Assessor provides the following in the PIRS table on page 11 of the MAC:
“Avoids social gatherings and feels embarrassed due to weight gain and unemployment status
Attends a PCYC irregularly on his own and hoping to secure an annual membership
Forces himself to attend family gatherings but does not interact much with others”
The Medical Assessor also recorded the following history relevant to this PIRS on page 6 of the MAC:
“Mr Hill did not socialise with his friends. He attended a PCYC irregularly and did a couple of laps in the basketball court bouncing the ball. He felt too embarrassed to engage in physical activities or sports with others. He was not a member of a club or organisation but hoped to secure an annual membership with PCYC if approved by the insurance company. He had attended physiotherapy sessions but did not continue due to low motivation and low energy levels. He avoided social gatherings but ‘tried to push myself” to family gatherings such as birthdays of the children of his siblings. He did not interact much with others in the birthday parties.”
The appellant submits that this PIRS looks at the extent to which a person is impaired where there are other people participating, such as clubs. The respondent counters this by submitting that there is nothing in the Guidelines to say that the “social activities” must be events involving the general public or socialising with members at a club or other formal organisation.
It is the Appeal Panel’s view that the Medical Assessor has not erred in his characterisation of the activities undertaken by Mr Hill as fitting within “social and recreational activities”. The Medical Assessor refers to two activities undertaken by Mr Hill in the PIRS and has clearly considered those as relevant to his assessment under this PIRS. Those are his attendance at the PCYC and at family gatherings.
In relation to the first, by its nature a PCYC is a “club or organisation”. Class 1 under this PIRS specifically includes attendance and involved in “clubs or associations” as part of the criteria under this PIRS. Classes 2 and 3 refers to how often a person would go to “such events”, whilst class 1 requires a person to be “actively involved” with those clubs or associations. In the present case Mr Hill is attending the PCYC irregularly, which shows an occasional pattern of attendance, but that he hoped to secure an annual membership. He did this alone, consistent with not needing a support person.
The evidence considered by the Medical Assessor is that Mr Hill would attend the PCYC of his own volition, without a support person, but would remain withdrawn. The Medical Assessor also considered Mr Hill’s avoidance of social gatherings and lack of interaction at family gatherings, both of which are relevant consideration for this PIRS.
In reaching a conclusion of class 2 impairment, the Medical Assessor has not failed to consider evidence or applied criteria incorrectly. He has considered relevant material as set out in the body of the MAC and the findings in the PIRS table.
The above history recorded in the MAC, along with the findings made in the PIRS table, are consistent with class 2 impairment. The Medical Assessor has not made a demonstrable error nor applied incorrect criteria.

Social and recreational activities – assignment of conduct

In the sequence of submissions raised by the appellant, this appears third. However, as it deals with the PIRS of social and recreational activities, the Appeal Panel will deal with it here.
The appellant submits that in dealing with social and recreational activities, the Medical Assessor improperly characterised the conduct of the appellant by assigning his attendance at family gatherings to the PIRS of social and recreational activities. The impact on functional impairment in family relations is relevant to the category of social functioning. In support, the appellant relies on [93]-[94] of Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas).
The respondent disagrees with the appellant’s submissions. The respondent submits that the activity of attending a social gathering with family, is itself social in nature. The fact that the appellant is able to attend birthday parties relates more to his ability to engage in social activities than it does the impact his injury has on family relationships, and the fact that family members may have attended the birthday parties does not mean that attendance at such parties automatically falls within the category of social functioning. The respondent also relies on Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 (Botha), submitting that there is no distinction between activities that occur within or outside the home for this category, the focus is on the social or recreational character of the activity.
The relevant paragraphs of Ballas, as relied upon by the appellant, are as follows:
“Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
As is always the case, caution must be exercised when considering reasons of a superior court and the precise principle for which those reasons stand. As much was set out, considering the above paragraphs of Ballas, by Basten JA in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 (Lancaster):
“The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor ‘social and recreational activities’ if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.
Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas. In any event, no similar error is alleged to have occurred in the present case: the question here is whether the Appeal Panel erred in assigning a particular class (that is level of severity) in relation to conduct which concededly fell within the particular scales (or categories).”
Similar caution was similarly expressed in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 by Stern JA (at [14]):
“Their Honours held, on the facts of that case, that the finding of the medical assessor that the worker ‘sees one friend regularly’ fell ‘squarely within the “social functioning (relationships)” scale’, and, by implication, not within the Social and Recreational PIRS: at [96]. It is important that this finding is not taken out of its own factual context. It should not be read as holding that social and recreational activities with friends, or even with one friend, cannot properly be characterised as going to the Social and Recreational PIRS. In Ballas, the worker submitted (and there is nothing to suggest that that submission was contradicted) that there was no reference in the history set out in the medical assessor’s certificate to the worker seeing the ‘one friend’, and it was not possible from the medical assessor’s assessment to know in what circumstances that contact occurred (as recorded in Ballas at [35], [81]). The dearth of information in Ballas to explain in what context the worker saw that one friend informs their Honours’ conclusion as to characterisation. The mere fact that the worker saw a friend regularly would not indicate that the occasion on which she did so was properly categorised as a social and recreational activity.”

In Ballas, the issue in dispute was whether seeing “one friend regularly” was a social activity within “social and recreational activities” or “social functioning”. The distinction between the two was explained as follows:
“Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.”
Here the activity under consideration is set out by the Medical Assessor as: “Forces himself to attend family gatherings but does not interact much with others”. In the body of the MAC, the specific history of attendance at family gatherings is recorded: “He avoided social gatherings but ‘tried to push myself’ to family gatherings such as birthdays of the children of his siblings. He did not interact much with others in the birthday parties”.
There is a distinct difference between the functional impairment measured by the categories of “social and recreational activities” and “social functioning”. The conduct rated under social functioning relates to the quality of a person’s interpersonal relationships with partners, friends and family members. The Guidelines ask whether relationships have been strained, whether friendships have been lost, and whether there has been domestic violence (amongst other things). Social and recreational activities relates to what a person might do when engaging with others and the extent to which that might occur. Social and recreational activities does not, by any factor in the Guidelines or by general understanding, exclude such activities when conducted with family members. The type of activities considered by the Guidelines under the PIRS of social and recreational activities frequently involve interaction with family members, by any normal understanding of those activities as carried out by much of the population.
On the other hand, social functioning is focussed on the quality of the social relationships that exist and how they have been affected by the injury in question, rather than the conduct of recreational activities. Per Basten JA in Lancaster, the proposition that attending a birthday party may fall within the conduct of “social and recreational activities” if carried out in the company of friends but not if carried out in the company of a family member (unless very specifically a support person) would seem unsupportable.
In the present circumstances, the Appeal Panel are satisfied that the activities in question fairly fall within the PIRS of social and recreational activities. The context in which the Medical Assessor considered the activities involves Mr Hill’s capacity to engage and socialise with others in a recreational setting. A child’s birthday party has a character of socialisation to it and it is clear, based on a fair reading of the body of the MAC and the PIRS table, that the Medical Assessor was considering the conduct in that context. No reference is made to strained relationships, separation, or distance from his family. There is an attendance at family events but a lack of engagement with others when attending.
The Appeal Panel do not accept the appellant’s submissions as raised in this ground of appeal.

Concentration, persistence and pace – failure to consider

The Medical Assessor provided an assessment of class 2 in this PIRS.
The appellant submits that the correct assessment is class 3. The appellant submits that there is no evidence of an ability to focus on intellectually demanding task for a period of up to 30 minutes. The evidence available is of watching videos and listening to podcasts, which is vague and general, and does not demonstrate that Mr Hill would be able to follow instructions or be able to undertake a basic course.
In response, the respondent refers to the various parts of the MAC relevant to the assessment under this PIRS. The respondent also refers to the assessment of Dr Khan, who assessed class 2 impairment. The respondent submits that it was open to the Medical Assessor to assess class 2 in this PIRS, and the assessment was made in light of all of the evidence before the Medical Assessor, including his findings on examination.
The relevant classes in dispute in this PIRS are set out in the Table 11.5 of the Guidelines:
“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 Medical Assessor’s reasons in the PIRS table on page 11 of the MAC are as follows:
“Has been unable to complete courses partly due to concentration deficits and partly due to poor motivation
Listens to podcasts and watches videos
No obvious deficits in attention or comprehension evident during the assessment.”
In the body of the MAC, the Medical Assessor records the following relevant history:
“Since being terminated from employment, Mr Hill had enrolled in educational courses but has not completed any of the courses. He identified poor motivation, dyslexia and concentration deficits impacted on his ability to complete courses. He was able to concentrate to an extent when he watched videos and listened to podcasts.”
To the extent that the appellant submits that there is “no evidence” for an assessment under class 2, that cannot be accepted. The respondent’s independent medical expert, Dr Khan, assessed class 2 under this PIRS. A finding of “no evidence” would be inconsistent with that assessment.
The appellant further submits that the evidence is inconsistent with a finding of class 2 impairment. This is a different submission that must be considered in the context of the history taken by the Medical Assessor, as well as the material made available to him, which includes the appellant’s statement. The appellant refers to that statement in submissions. That statement addresses Mr Hill’s functioning in terms of his ability to concentrate, including a lack of capacity to watch movies or read, and an inability to write, which he previously enjoyed as a hobby.
Whilst it is true that a Medical Assessor does not need to refer to every piece of evidence put before him or her, or explain why he or she has not reached a certain conclusion (as opposed to explaining the conclusion that has been reached), the assessments made under the various tables that make up the PIRS must be applied in accordance with certain criteria. Where an assessment is outside of that criteria, the ground of incorrect criteria will be made out.
In the present circumstances, the Medical Assessor has taken a history of enrolment in education courses but an inability to complete those courses. There is, as the appellant submits, a rather vague detailing of an ability to concentrate to an extent on podcasts and videos. However, there is no history taken of an ability to undertake a basic retraining course or a standard course at a slower pace. At its highest, there is a history taken of listening to podcasts and watching videos.
The Appeal Panel’s view is that the history taken is inconsistent with the conclusion reached by the Medical Assessor, to the extent that he has applied incorrect criteria in reaching his conclusion. The history taken is consistent only with class 3 impairment (that is, this is not a circumstance where reasonably minds may differ on the outcome of the assessment, on the basis of clinical judgment). The Medical Assessor has failed to consider the evidence before him, including the history taken on examination, in reaching his conclusion.
Accordingly, this ground of appeal is made out and the MAC will be revoked.

Conclusion

The appellant has succeeded on one ground of appeal and the MAC will be revoked. The assessment of class 2 impairment in concentration, persistence and pace will be replaced with a class 3.
This will result in an ascending impairment assessment of 2, 2, 2, 2, 3, 5, with a median class of 2. The aggregate score is 16. This results in a whole person impairment assessment of 9%, with a treatment effect of 1% (which is not challenged on appeal) for a total of 10%. A deduction of 1/10^th was made by the Medical Assessor which is again not challenged on appeal. The final whole person impairment will therefore be 9%.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 September 2024 should be revoked, and a new MAC should be 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:	W22957/24
Applicant:	Samuel Hill
Respondent:	Citrus Group Pty Ltd

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Sathish Dayaln 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)

1. Psychiatric

29/11/2021

(deemed)

Chapter 11, pages 54-60

10%

1/10^th

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

[2025] NSWPICMP 38

17 January 2025