Holden v Wydarigah Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Holden v Wydarigah Pty Ltd [2024] NSWPICMP 652
APPELLANT:	Justin Robert Holden
RESPONDENT:	Wydarigah Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	13 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred in rating the appellant’s impairment in self-care and personal hygiene, travel, social functioning and employability under the permanent impairment rating scale (PIRS); Held – Medical Appeal Panel found that the MA erred in rating the appellant’s impairment in PIRS categories that were challenged as his ratings did not accord with the history he obtained or the evidence ; appellant re-examined; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 February 2024 Justin Robert Holden, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
29 January 2024.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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

In 2011 the appellant commenced employment with Wydarigah Pty Ltd, the respondent, as a cotton farm manager. At 3:00am on 23 March 2017 he was called to attend a motor vehicle accident that had occurred on the respondent’s farm. Another employee of the respondent had died in that accident. He was trapped in the wreckage of the vehicle. The appellant provided assistance with other employees until an ambulance arrived. That assistance included extracting the corpse of the employee from the motor vehicle.
The appellant suffered a psychological injury as a consequence of this event.
Relying on a report of general and forensic psychiatrist Dr Tessa Daws dated 20 July 2023, who had assessed the appellant had a permanent impairment from his injury of the order of 28% whole person impairment (WPI), the appellant claimed compensation from the respondent pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
Dr Daws assessment was done by reference to the Psychiatric Impairment Rating Scale (PIRS), as detailed in the Guidelines. Dr Daws’ ratings of the appellant’s impairment in the several categories comprising that scale were Class 3 for self-care and personal hygiene, Class 4 for social and recreational activities, Class 3 for travel, Class 3 for social functioning, Class 3 for concentration, persistence and pace, and Class 5 for employability.
Following receipt of the appellant’s claim, the respondent’s solicitors organised for the appellant to be examined by psychiatrist Dr Graham George, who in a report dated
15 September 2023 advised the respondent’s solicitors that he assessed the appellant had an overall permanent impairment of 24% WPI but of which one-tenth was due to a “pre-existing impairment” such that he assessed the appellant had 22% WPI from his psychiatric injury.
The respondent’s solicitors wrote to the appellant’s solicitors on 2 November 2023 advising them that they had been instructed by their client to pay compensation under s 66 of the 1987 Act for 22% WPI. It is apparent that that offer was not accepted by the appellant since on 22 November 2023 his solicitors lodged on the appellant’s behalf an Application to Resolve a Dispute with the Personal Injury Commission (Commission) seeking determination of his claim for compensation.
A delegate of the President of the Commission referred the matter to the Medical Assessor on 19 December 2023, who examined the appellant on 29 January 2024.
The Medical Assessor certified in the MAC that he issued on the day he examined the appellant, that he had assessed the appellant had 9% WPI from his injury. That assessment comprised 7% WPI based on how he had rated the appellant’s impairment in the several PIRS categories and 2% WPI for “treatment effect”, which the Medical Assessor added pursuant to 1.32 of the Guidelines.
The Appeal Panel notes that the Medical Assessor’s ratings of the appellant’s impairment in the various PIRS categories were Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 3 for concentration, persistence and pace, and Class 1 for employability.
In his appeal against the medical assessment, the appellant has challenged the Medical Assessor’s ratings in all PIRS categories with the exception of social and recreational activities and concentration, persistence and pace.
In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 2 in self-care and personal hygiene:
“He said he showers himself every couple of days, depending on what he’s doing, and he sometimes is reminded by his partner to shave, as he doesn’t care now that he’s not seeing anyone. He said he used to love cooking, but now his missus cooks for him, and he has been cooking about once or twice a fortnight, and he can make ready-made corn meals for himself, and he cannot organise take-out, to avoid people judging him.
As he has been able to look after himself independently, albeit with a degree of neglect, he has mild impairment.”
In the history the Medical Assessor detailed in the MAC relating to the appellant’s social activities and activities of daily living the Medical Assessor also recorded that the appellant had reported that he showers every couple of days depending on what he is doing and that his partner sometimes needs to remind him to shave. The Medical Assessor detailed that the appellant previously liked to cook but now his partner cooks for him and that he cooks about once or twice a fortnight and can make ready made corn meals for himself.
The Medical Assessor provided the following reasons for rating the appellant’s impairment in travel as Class 2:
“He said he has been able to drive around the farm, and his partner drives him to the doctors and into town. He said he has been able to drive alone, about twice a month. He said he used drive all the time.
As he has been able to drive himself, albeit with a degree of anxiety and reduced frequency, within the local area, he has mild impairment.”
The Medical Assessor provided the following reasons for rating the appellant’s impairment in social functioning as Class 2:
“He said he has a partner Christie, and they have been together for 25 years. He said their relationship has been going good, though somewhat stretched with more arguments, without physical violence, and there was a period of separation for 3-4 months last year, when she had moved into town at his parents’ house.
He has a 16-year-old son and he has a good relationship with his son. He said in the past, he would go fishing and attend rodeo, but not anymore since having PTSD.
He said he has no friends now, having had to sack his friends as a farm manager. I raised that he said he lives on his friend’s property, and he agreed that he has a friend who has been helping him out with a residence. He said he would speak to his every three months. He said he doesn’t have any other friends, as he was tied up with his work in the past.
As he has been able to repair his relationship with his partner, without previous violence and now living together, and he has maintained his relationship with his son, but having lost most of his friends, he has mild impairment. It is possible that his improvement in social functioning with managing his relationship with his partner is a result of treatment effect.”
The Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 1 in employability:
“He is not currently working, and he has not worked since 13 months ago, when he were sacked, as they ended up splitting the farm, and sold it off. They had wanted him to sign waivers not to mention his name in court, but he did not do it. Prior to being sacked, he had been working as a farm manager for 12 years, and he would work 80 – 100 hours a week, 7 days a week. After the subject accident, he had continued to
work in that role, and he said he didn’t have a day off.
As he had been able to continue working full-time in his pre-injury role, until being sacked for an unrelated reason, he has no significant impairment.”
The Medical Assessor also noted in the MAC that prior to the appellant’s suffering injury he drank one to two beers a week and shortly after the incident he escalated his drinking up to half a litre of scotch a day. The Medical Assessor noted that the appellant is currently drinking four scotches a night but denied any negative consequences from his drinking.
The Medical Assessor provided brief summaries in the MAC of the assessments that
Dr Daws and Dr George had each made of the appellant’s impairment. The Medical Assessor noted that his assessment provided “a substantially milder level of impairment” than what Dr Daws and Dr George had assessed. He said he suspected;
“this is because [the appellant] has made further improvement of his mental state by the time he saw me today, and possibly with improvement of his alcohol use for the period of abstinence, until more recently that is, when compared to his previous assessments by Drs Daws and George.”

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 the appellant should undergo a further medical examination. This is because the Appeal Panel found, for reasons explained below, that the MAC contained demonstrable errors which the Appeal Panel would consequently need to correct. To do that the Appeal Panel considered it would benefit from further clinical data which it would need to obtain from the appellant. To that end the Appeal Panel appointed Medical Assessor Douglas Andrews to conduct the re-examination. He did so on 9 August 2024. His report to the Appeal Panel on his examination is set out below under Findings and Reasons.
During its preliminary review the Appeal Panel also considered an Application to Admit Late Documents the appellant’s solicitors filed with the Commission on 8 July 2024, to which was attached a statement signed by Simone Louise Warner on 28 June 2024 and a statement signed by Amanda Jane Tootel on 5 July 2024. Ms Warner and Ms Tootel are sisters of the appellant. Their respective statements, other than the last paragraph of each, contain, in substance, their observations of how the appellant copes with socialising, managing his finances and his self care and their commentary on his relationship with his partner and son. The final paragraph of each of their statements relates to why the appellant failed to keep several appointments that had been made for the appellant for his examination by Medical Assessor Andrews.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The final paragraph of each of Ms Warner’s and Ms Tootel’s statements is now irrelevant given that the appellant ultimately attended an appointment made for him for Medical Assessor Andrews to examine him. The content of the rest of their statements is evidence they each could have provided prior to the medical assessment that was conducted by the Medical Assessor. Consequently, it is not fresh evidence and hence the Appeal Panel cannot receive it into evidence.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor incorrectly rated his impairment in self-care and personal hygiene as Class 2 and that the correct rating is Class 3. The appellant referred to the history the Medical Assessor obtained and submitted that the history indicated he neglects to bathe for several days and has to be reminded by his partner to attend to his hygiene and that his partner prepares his meals. The appellant submitted that in those circumstances a Class 2 rating is “unsuitable”.
The appellant submitted that the Medical Assessor’s rating of his impairment in travel as Class 2 is also unsuitable given the reasons the Medical Assessor provided for his rating. The appellant submitted that based on those reasons the correct rating is Class 3.
The appellant submitted that the history the Medical Assessor obtained and the reasons he provided for rating his impairment in social functioning as Class 2 revealed that his relationship with his partner has suffered significant strain and also that he has lost all but one of his friends and speaks with his remaining friend about once every three months. The appellant submitted that the Medical Assessor’s rating of his impairment in social functioning as Class 2 is also unsuitable, based on those matters, and that a Class 3 rating is more appropriate.
The appellant submitted that the Medical Assessor did not rate his impairment in employability based on his present circumstances, but rather based on what his capacity was at least 19 months before the assessment. The appellant submitted that based on his present circumstances his impairment in employability is correctly rated as Class 5.
In reply, the respondent submitted that the Medical Assessor observed that the appellant was casually dressed and a reasonably groomed man at the time of the assessment. The respondent highlighted that the Medical Assessor recorded the appellant showered himself every couple of days without prompting but sometimes required reminding from his partner to shave and that his partner cooks for him other than once or twice a fortnight when the appellant cooks for himself. The respondent also highlighted the Medical Assessor noted that the appellant can make ready made meals and avoids takeout. The respondent submitted that there was no error in the Medical Assessor rating the appellant’s impairment as Class 2.
The respondent highlighted that the Medical Assessor reported that the appellant is able to drive himself into town around twice a month and that otherwise his partner drives him into town. The respondent further highlighted that the Medical Assessor recorded the appellant is able to drive around his farm on his own. The respondent submitted that the Medical Assessor did not err by rating the appellant’s impairment in travel as Class 3.
The respondent noted that the Medical Assessor had recorded the appellant had constant social anxiety with avoidance due to matters that occurred in his employment before he suffered his injury and that were unrelated to the incident in which he suffered injury. The respondent submitted that the appellant’s social relationships appear to have been impacted by those other matters and not as a result of psychological injury. The respondent submitted that any impact on the appellant’s ability to maintain social relationships as a consequence of those other incidents should not be assessed under the PIRS table.
The respondent highlighted that the Medical Assessor reported that the appellant’s relationship has been good but more stretched due to arguments, that there has been no physical violence, that the appellant had a period of separation from his partner for three to four months in 2023, that the appellant has a good relationship with his son and that the appellant has lost most of his friends. The respondent further highlighted that the appellant spoke to his friend every three months.
The respondent highlighted the Medical Assessor recorded the appellant had been able to repair his relationships with his partner and son. The respondent submitted that that is inconsistent with a Class 3 rating.
The respondent submitted that the Medical Assessor’s rating of the appellant’s impairment in social functioning as Class 2 should be confirmed.
The respondent highlighted that Dr Daws had noted that the appellant attended work on a different farm after his injury and experienced inter-personal issues that led to his dismissal. The respondent highlighted that the Medical Assessor recorded the appellant was not currently working and had ceased working 13 months earlier when his employment was terminated upon his then employer selling a farm. The respondent submitted that the Medical Assessor is not required to identify the nature of the employment the appellant is capable of performing. The respondent submitted that the available evidence indicates the appellant has work capacity. The respondent submitted that the Medical Assessor based on the appellant’s presentation of available evidence did not err by rating the appellant’s impairment in employability as Class 1.

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.
The examples provided in Table 11.1 of the Guidelines for a Class 2 impairment in self-care and personal hygiene are “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”.
The Appeal Panel considers that based on the history the Medical Assessor obtained relating to the appellant’s function in self-care and personal hygiene and based on the reasons the Medical Assessor provided for rating the appellant’s impairment as Class 2 in self-care and personal hygiene, the Medical Assessor was wrong to rate his impairment as Class 2. The fact that the appellant only showers every couple of days and needs reminding by his partner to shave and the fact that he cooks only once or twice a fortnight and otherwise relies on his partner to cook indicates an impairment in self-care and personal hygiene that is more severe than that described by the examples in Table 11.1 for a Class 2 impairment. Consequently, the Appeal Panel considers it was not open to the Medical Assessor to rate the appellant’s impairment in self-care and personal hygiene as Class 2 and therefore the Appeal Panel finds that the Medical Assessor erred by doing so.

The example provided in Table 11.3 of the Guidelines for a Class 2 impairment in Travel is “can travel without a support person, but only in a familiar area such as local shops, visiting a neighbour”.
The Appeal Panel also considers that the reasons the Medical Assessor provided for rating the appellant’s impairment in travel as Class 2 did not correlate with an impairment described by the example for a Class 2 rating. The Medical Assessor’s reasons revealed that the appellant rarely drives on his own outside of the farm on which he resides whereas he relies on his partner to drive him to his medical appointments and into town. The fact that the appellant is able to drive within the property on which he resides on his own is, in the Appeal Panel’s view, an irrelevant factor to consider when rating the appellant’s impairment in travel, given that in doing that he is not exposed to other traffic and does not need to abide to any traffic regulations.
The Appeal Panel consequently finds that, based on the history the Medical Assessor obtained and the reasons he provided for his rating, the Medical Assessor erred by rating the appellant’s impairment in travel as Class 2.
The descriptors provided in Table 11.4 of the Guidelines for a mild impairment in Social Functioning are:
“Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The Appeal Panel again considers that the Medical Assessor erred by rating the appellant’s impairment in social functioning as Class 2. The history the Medical Assessor obtained reveals the appellant had recently separated from his partner of 25 years for a relatively long period of three to four months. That indicates there was recent severe strain between them. Further, the appellant has lost all but one of his friends. Notwithstanding that matters that occurred before his injury may have been a factor in the loss of some of his friendships, his injury is nevertheless also a factor, indeed a major factor, in the loss of his friendships. Given those matters, it was not open to the Medical Assessor to rate the appellant’s impairment as Class 2 because the appellant’s impairment in social functioning is more severe than that described by the examples for a Class 2 rating. His impairment correlates best with the examples provided for a Class 3 rating.
The examples provided in Table 11.6 for a Class 1 impairment in employability are:
“No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.”
The Appeal Panel notes that in a statement the appellant signed on 14 July 2023 he said that he has not been capable of employment since 5 May 2022. That is when his employment with his most recent employer came to an end. The Appeal Panel also notes from the report of Dr Daws dated 20 July 2023 that she obtained a history that subsequent to the termination of the appellant’s most recent employment, the appellant moved into an isolated property because he felt too anxious to remain in the community. The Appeal Panel further notes from the report of Dr George dated 15 September 2023 that he considered the appellant had a total impairment in employability because of the chronicity and severity of the symptoms from his injury. In addition to that, the clinical records of the general medical practice that the appellant attends, namely Pius X Aboriginal Corporation, revealed that over the period to which the records relate, being18 February 2021 to 18 May 2023, the appellant had chronic and severe symptoms from his injury. In other words, the records of his general practitioners confirm Dr George’s opinion.
The Medical Assessor based his assessment of the appellant’s impairment in employability on the fact that up until May 2022 the appellant was in employment. The Appeal Panel agrees with the appellant’s submission to the effect that in rating his impairment in employability the Medical Assessor did not have regard to what the evidence revealed about the appellant’s current capacity in employability. That is, irrespective of the fact that the appellant was employed up until 5 May 2022, the Medical Assessor did not explain in the reasons he provided for rating the appellant’s impairment in employability as Class 1 the effect that the appellant’s present symptoms from his illness on his capacity in employability. That was an error. Based on the evidence the appellant’s impairment currently in employability is more severe than Class 1.
Given that the Appeal Panel considers the Medical Assessor erred with respect to his ratings of the appellant’s impairment in all the PIRS categories that the appellant has challenged, the Appeal Panel must correct those errors and rate the appellant’s impairment in those several categories. As indicated earlier, the Appeal Panel considered it would benefit from further clinical data to be able to attend to that task in a thorough and proper manner. The Appeal Panel appointed one of its members, Medical Assessor Andrews to conduct that examination. His report to the Appeal Panel was this:
“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W8810/23
Appellant:	Justin Robert Holden
Respondent:	Wydarigah Pty Ltd

Examination Conducted By:	Douglas Andrews
Date of Examination:	09 August 2024

1.The workers medical history, where it differs from previous records
Mr Justin Holden is a 48-year-old aboriginal man and ex-farm manager who lives 21 km out of Boomi in northwest New South Wales. He lives alone in a rent-free rundown house provided by a friend, a residence he shared with his wife of 25 years, Christie, and their son, 17-year-old Clay until Christie and Clay left about six weeks ago. The separation occurred after an argument, and Christie sought an apprehended violence order that was rejected by the court. Mr Holden has not spoken to his son or wife since and doesn’t know their whereabouts. He acknowledged that he “hasn’t been the easiest person to live with.” Despite the attempted AVO, Mr Holden denies that there was any domestic violence.
Mr Holden had been fit and well, without a history of mental illness, before the death of his colleague on 24 March 2017, the event that triggered his injury. He worked for several years as a farm manager for Wyadrigah Pastoral, owned by Barlow Investments. The property was some two hundred thousand hectares, farming cotton in the summer and cereals in the winter. Mr Holden worked seven days a week, 80-120 hours a week, and rarely took holidays. Depending on the season, 5 to 30 people worked under him.
On 24 March 2017, a young employee was killed on the property in a motor vehicle accident. Mr Holden was first on the scene and was present when the young man died. Because of the isolation, it took 14-15 hours before the body was extracted, and Mr Holden was required to stay with the deceased during that time and assist emergency personnel.
Mr Holden recalled feeling ‘numb’ in the days following, but he remained responsible for the farm's running. He often felt fatigued and started to go to the doctor to discuss health concerns. He rarely saw the same doctor twice, and it took many months before he disclosed what had happened. 12 months after the incident, he took two weeks off because he felt that he wasn’t coping.
In late 2020, the farm was broken up and sold, and Mr Holden was dismissed. The company had been accused of water theft, and legal cases continue.
Mr Holden found work managing a smaller farm, also growing cotton, but he was having interpersonal difficulties with other employees. He was dismissed from his role after 12 months.
He has not worked in any capacity since late 2022.
General health:
Mr Holden started drinking heavily, a bottle of scotch daily, after the incident. He had been fit, weighing about 80 kg, before the accidental death, but his weight ballooned to 135 kg, and he underwent a gastric sleeve operation. His weight has dropped to about 70 kg, lower than his pre-injury weight. He now drinks between 3-5 standard drinks a day on about three days a week.
He also has asthma and occasionally uses a bronchodilator.
Social background:
Mr Holden has three sisters; the middle sister, Felicity, is his twin and lives nearby. The eldest, Amanda, lives in Ballina and the youngest, Simone, is about two hours away. His 17-year-old son has high-functioning autism.
He lives in a house owned by a friend, which he moved into after being dismissed from his last job. He described the house as previously uninhabitable, and he has made some repairs to the septic system and roof and sealed the house against insects.
2.Additional history since the original Medical Assessment Certificate was performed
Treatment:
Mr Holden is cared for by the Pius X Aboriginal Corporation's general practitioner,
Dr Hamze. He sees a counsellor, Ms Narelle Webb, monthly. He occasionally sees a psychologist or psychiatrist when they fly in from Sydney.
His medications are unchanged from when he saw the MA. He takes sertraline 200 mg mane, mirtazapine 15 mg at night and medicinal cannabis.
Despite his treatment, Mr Holden feels that there has been no significant change since the start of treatment. He said, ‘If anything, I am worse.’ He has been more distressed since his wife’s departure.
About two months ago, he was admitted to Moree Hospital for a few days for depression and out of concern because he wasn’t eating.
Current symptoms:
Mr Holden said that he predominantly feels ‘numb’ and that he has done so for at least the last couple of years. His mood is low, without diurnal variation and he has anhedonia.
He has struggled more with his mood since his wife left and has associated somatic symptoms such as nausea and vomiting.
He is anxious, especially away from home, and worries about running into other people. He is hyperalert and hypervigilant in the circumstances. He has occasional panic attacks.
He is irritable, saying, ‘Some days, everything upsets me.’
He has subjective challenges with concentration, attention and memory.
He is bothered by distressing, intrusive thoughts about the accident and his current circumstances. Things that remind him of the accident include diesel fuel smells or a froth on water.
He denied thoughts of self-harm or suicide but said, ‘I get down and low, but then I think about my young fellow.’
He goes to bed at about 9 PM and has severe initial and middle insomnia. He has frequent nightmares about the accident and the death of his young workmate.
He has a reduced appetite and frequently skips meals.
His libido is absent and was even before his wife left.
Diagnoses:
His diagnoses are as described by the MA, except that he also meets the criteria for a major depressive episode, and he has now moderated his alcohol use.
·post-traumatic stress disorder
·persistent depressive disorder with an ongoing major depressive episode
·alcohol use disorder in remission
Activities of daily living:
Mr Holden rises between 7 and 8 AM. He spends most of his day in his house, primarily in his kitchen and lounge room, where he has a bed. He does a small amount of housework and maintained a vegetable garden until the plants were killed by frost. He plans to rejuvenate the garden when the spring comes.
His twin sister visits several times weekly, brings him prepared meals and other groceries, and encourages him to shower. He has gone up to three weeks without a shower but usually showers every few days with prompting and encouragement. He will heat up preprepared meals but won’t otherwise make meals for himself.
Before his wife left, she pushed him to shower, and he did so every few days.
He spends about an hour daily on his computer, reading emails and topics related to cotton farming. He doesn’t read books because he loses interest and focus after about two pages. He doesn’t own a television.
Whereas he previously enjoyed activities such as fishing and rodeo with his son, he has given up these activities since his injury. He has no friends and only sees his sisters and medical professionals. He lives in an old friend's house but has not seen that man for 18 months.
He has a driver’s license and continues to drive, although he doesn’t like doing so because the smells of his ute remind him of the accident. He can travel into Boomi and Moree, the latter trip taking about an hour each way. The trip to Moree is familiar, routine and necessary for someone living as isolated as Mr Holden. He only travels to Moree to see his doctor.
He sees his twin sister about three times a week and occasionally another sister who lives two hours away. He has maintained good relationships with his sisters but has no ongoing contact with friends. Because of work demands, he formed friendships with people he worked with, but this opportunity is no longer available to him. He has had no contact with his wife or son since they left.
House repairs were finished six months ago, and he has done nothing since.
The appeal:
Mr Holden appealed the findings of four PIRS categories: self-care and personal hygiene, travel, social functioning, and employability.
Self-care and personal hygiene – Mr Holden lives by himself and receives regular and necessary support from his twin sister. Before that, he was dependent on his wife. He does minimal housework and neglects his hygiene, showering and doing laundry infrequently. He may shower twice a week when his sister prompts and encourages him. He has a reduced appetite and frequently misses meals. He relies on his sister to provide him with groceries and pre-prepared meals. He has been losing weight and was hospitalised with depression and weight loss a couple of months ago. Although he lives independently, he depends on his sister’s visit, and it would be unsafe for him without. This is a class 3 impairment.
Travel – Mr Holden is more anxious when driving but can do so independently in the local area, including the one-hour trip to Moree. In the isolated geographical context of his home, this should be considered a local and familiar trip. He had two sisters for support to take the longer journey to Tamworth. He has not had other trips. This is a class 2 impairment.
Social functioning – Mr Holden is close to his three sisters. He has no friends or other social contact. There had been strain in his relationship with Christie, with discord that led to separation two months ago. Christie sought but did not obtain an apprehended violence order. There has been no domestic violence. Mr Holden believes he has a close and caring relationship with his son. He has had no contact with his wife or son since they left and doesn’t know where they are. This is a class 3 impairment.
Employability – Mr Holden hasn’t worked in any capacity since late 2022. In his last job, he worked in a full-time farm management role but was dismissed because of interpersonal difficulties and performance problems. Since leaving, he has done some repairs to make his home habitable. He had a farm management role that required significant skill and long hours. Likely, Mr Holden could work in some capacity, close to his home, with less responsibility and an understanding that his attendance might be erratic. This is a class 4 impairment.
3.Findings on clinical examination
I examined Mr Holden by video link in his solicitor’s office at Tamworth. Two of his sisters had driven him to Tamworth the day before, and he planned to return home the day of the assessment. He apologised for missing two previous assessments because of challenges connecting to the Internet.
He presented casually attired in a check shirt and T-shirt, with short-cropped hair and beard.
He described his mood as anxious and depressed. His anxiety was apparent, and his affect was restricted, consistent with his stated mood and congruent with the interview content.
There was no evidence of any disorder of thought form or perception.
He gave a coherent account without obvious attentional lapses or cognitive challenges.
At the end of the interview, he agreed that we had covered everything necessary.
4.Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”

The Appeal Panel considers Medical Assessor Andrews conducted a thorough examination of the appellant and consequently for the purpose of correcting the errors in the MAC the Appeal Panel adopts the medical history and the additional history that Medical Assessor Andrews has set out in his report and his findings from his clinical examination of the appellant.[1] The Appeal Panel also agrees with what Medical Assessor Andrews indicated in his report regarding how the appellant’s impairment in the four PIRS categories that the appellant has challenged, and does so for the reasons Medical Assessor Andrews has set out.
[1] Coca Cola Euro Pacific Partners ABI Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
That is to say, the Appeal Panel agrees that the appellant’s impairment in self-care and personal hygiene is Class 3. This is because the appellant is remiss with his self-care and requires the support of his sister to ensure he can attend adequately to his needs with respect to self-care and personal hygiene. That accords with an impairment of the severity of that described by the examples for a Class 3 impairment in Table 11.1.
With respect to travel, given that the appellant is able to drive within his local geographic area and relies on his sister for support for longer trips, his impairment accords with that described by the examples for a Class 2 impairment.
With respect to social functioning, the appellant’s impairment accords with the severity described by the examples for a Class 3 impairment. He is presently separated from his partner and, as discussed above, in the previous year was also separated from her. He also has no social contacts other than his three sisters with whom he is close.
With respect to employability the Appeal Panel considers that having regard to the matters Medical Assessor Andrews identified, the appellant’s impairment is of a severity that accords with the examples provided for a Class 4 impairment.
In summary then, in correcting the demonstrable errors in the MAC, the Appeal Panel rates the appellant’s impairment in self-care and personal hygiene as Class 3, in travel as Class 2, in social functioning as Class 3 and in employability as Class 4. The Appeal Panel further observes that the Medical Assessor’s ratings in social and recreational activities as Class 3 and in concentration, persistence and pace as Class 3 were not challenged. Thus the appellant’s median score of the PIRS categories have been corrected by the Appeal Panel and those of the Medical Assessor that were not challenged is 3 and the aggregate of the score for all categories is 18, which in accordance with Table 11.7 of the Guidelines converts to 22% WPI.
The Appeal Panel notes that the Medical Assessor added 2% WPI pursuant to paragraph 1.32 of the Guidelines. However, because the Appeal Panel in correcting the errors in the MAC has assessed the appellant to have a much higher degree of permanent impairment than what the Medical Assessor assessed, and because consideration of whether paragraph 1.32 applies involves a comparative exercise between the appellant’s degree of permanent impairment as the Appeal Panel now assesses it and his post injury pre-treatment permanent impairment, it is necessary to consider afresh the application of paragraph 1.32 and not simply accept the Medical Assessor’s finding that 2% WPI is to be added pursuant to paragraph 1.32.
The Appeal Panel considers that paragraph 1.32 of the Guidelines cannot be engaged. This is because the treatment the appellant has had has not resulted in a substantial or total elimination of his permanent impairment. There is essentially no difference between the appellant’s permanent impairment now and his post-injury pre-treatment permanent impairment.

For these reasons, the Appeal Panel has determined that the MAC issued on
29 January 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W8810/23
Applicant:	Justin Robert Holden
Respondent:	Wydarigah 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 Yu-Tang Shen 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 WorkCover Guides

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/psychiatric disorder

24/03/2017

Chapter 11

22%

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

22%

[2024] NSWPICMP 652

13 September 2024